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American Public School Law
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1019763_FM_VOL-I.qxp
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American Public School Law
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This is an electronic version of the print textbook. Due to electronic rights restrictions, some third party content may be suppressed. Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. The publisher reserves the right to remove content from this title at any time if subsequent rights restrictions require it. For valuable information on pricing, previous editions, changes to current editions, and alternate formats, please visit www.cengage.com/highered to search by ISBN#, author, title, or keyword for materials in your areas of interest.
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American Public School Law EIGHTH EDITION
Kern Alexander Professor University of Illinois, Urbana-Champaign
M. David Alexander Professor Virginia Tech, Blacksburg
Australia • Brazil • Japan • Korea • Mexico • Singapore • Spain • United Kingdom • United States
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American Public School Law, Eighth Edition Kern Alexander and M. David Alexander Publisher: Linda Schreiber-Ganster Acquisitions Editor: Mark Kerr Editorial Assistant: Genevieve Allen Assistant Editor: Rebecca Dashiell Development Editor: Melissa Kelleher Marketing Manager: Kara kindstrom Parsons Marketing Communications Manager: Tami Strang Art Director: Maria Epes Manufacturing Manager: Marcia Locke
© 2012, 2009, 2005 Wadsworth, Cengage Learning ALL RIGHTS RESERVED. No part of this work covered by the copyright herein may be reproduced, transmitted, stored, or used in any form or by any means graphic, electronic, or mechanical, including but not limited to photocopying, recording, scanning, digitizing, taping, Web distribution, information networks, or information storage and retrieval systems, except as permitted under Section 107 or 108 of the 1976 United States Copyright Act, without the prior written permission of the publisher. For product information and technology assistance, contact us at Cengage Learning Customer & Sales Support, 1-800-354-9706 For permission to use material from this text or product, submit all requests online at www.cengage.com/permissions Further permissions questions can be emailed to [email protected]
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ISBN-13: 978-0-495-91049-7
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ISBN-10: 0-495-91049-X Wadsworth 20 Davis Drive Belmont, CA 94002 USA Cengage Learning is a leading provider of customized learning solutions with office locations around the globe, including Singapore, the United Kingdom, Australia, Mexico, Brazil and Japan. Locate your local office at: international.cengage.com/region Cengage Learning products are represented in Canada by Nelson Education, Ltd. For your course and learning solutions, visit www.cengage.com Purchase any of our products at your local college store or at our preferred online store www.cengagebrain.com Instructors: Please visit login.cengage.com and log in to access instructor-specific resources.
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contents in brief
Table of Cases Preface
xv
Chapter 13 Defamation and Student Records 683
xxxvii
Chapter 1
The Legal System
Chapter 14 School District Liability 721
1
Chapter 2 Historical and Legal Perspective of Public Schools 27
Chapter 15 Certification, Contracts, and Tenure 761
Chapter 3 Role of the Federal Government 76
Chapter 16 Teacher Rights and Freedoms 808
Chapter 4 Governance of Public Schools 118
Chapter 17 Due Process Rights of Teachers 865
Chapter 5
Church and State 176 Chapter 18 Discrimination in Employment 899
Chapter 6 School Attendance 283
Chapter 19 Collective Bargaining 966
Chapter 7 The Instructional Program 337
Chapter 20 Desegregation of Public Schools 1001
Chapter 8 Student Speech and Expression 406
Chapter 21 Chapter 9 Search and Seizure 460
School Finance
1047
Chapter 22 School Property and Buildings 1090
Chapter 10 Student Rights: Common Law, Constitutional Due Process, and Statutory Protections 496
Appendix A Selected Constitutional Provisions 1112
Chapter 11 Rights of Students with Disabilities 560
Appendix B Information Helpful in Legal Research 1116
Chapter 12
Index
Tort Liability
631
1119
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contents
Table of Cases Preface
xv
Chapter 2 Historical and Legal Perspective of Public Schools 27
xxxvii
Chapter 1
The Legal System
America’s First School Laws 28 The Puritan Influence 28 A System of Education 29 Preamble to a Bill for the More General Diffusion of Knowledge (1779) 31 McDuffy v. Secretary of the Executive Office of Education 31 Education and Natural Law 32 The Struggle for Public Schools 33 Defining the Public Schools 34 Education, the Balance-Wheel of Social Machinery, Horace Mann’s Twelfth Report (1848) 35 Education Provisions of State Constitutions 36 Education Provisions as Limitations on Legislatures 37 Rose v. Council for Better Education, Inc. 38 John Ellis “Jeb” Bush v. Holmes 42 Education as a Fundamental Right under State Constitutions 45 Claremont School District v. Governor 47 Judicial Approval of Common Schools 49 Commonwealth v. Hartman 50 Expansion of Public Schools 52 Charter Schools 53 Wilson v. State Board of Education 56 Tuition and Fees in Public Schools 63 Randolph County Board of Education v. Adams 64 Hartzell v. Connell 66
1
The Nature of Public School Law 2 Sources of Law 2 Constitutions 3 Statutes 3 Judicial Decisions (Case Law) 4 Administrative Law 5 Political Neutrality and the Courts 5 Powers and Functions of Courts 7 Applying Principles 7 Interpreting Statutes 8 Determining Constitutionality 8 The Purpose of Law 9 An Invitation to Jurisprudence, Harry W. Jones 9 Stare Decisis 9 Nature and Authority of Judicial Precedents, Henry Campbell Black 10 Rule of Law 10 How to Read a Case 11 Case or Controversy 12 The American Court System 12 State Courts 13 Federal Courts 14 Vertical Judicial Federalism: The Legal Context 16 Process of Going to Court 17 Beginning the Action 18 Pleading 19 Discovery 19 Disposition without Trial 19 Trial 20 Judgment and Remedy 20 Appeal 21 Finding the Law 21 Citations 21 Sources of Legal Material 23
Chapter 3 Role of the Federal Government 76 The Land Ordinances 77 Indirect Federal Role 78 Sources of the Federal Role
80
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viii
Contents
Structural Provisions in the Constitution 81 Tenth Amendment and State Sovereignty 82 General Welfare and Education 83 Arlington Central School District Board of Education v. Murphy 88 Commerce Clause and Education 90 United States v. Lopez 92 Supremacy Clause 94 Shepheard v. Godwin 96 Obligation of Contracts 98 Eleventh Amendment Immunity 99 Rights Provisions in the Constitution 101 Bill of Rights and Absorption by the Fourteenth Amendment 102 First Amendment 104 Fourth Amendment 104 Fifth Amendment 104 Eighth Amendment 105 Ninth Amendment 105 Fourteenth Amendment 106 Fundamental Rights and Education 107 Liberty Rights 107 Dignity Rights 107 San Antonio Independent School District v. Rodriguez 109 Education as a Unique Governmental Function 113
Chapter 4 Governance of Public Schools 118 Public Reason and the State 119 Education as a State Function 119 Limits of State Control 122 State ex rel. Clark v. Haworth 122 State and Local Educational Agencies 125 McGilvra v. Seattle School District No. 1 126 Johnson v. Burmaster 127 Local Control 130 Owens v. Colorado Congress of Parents, Teachers and Students 131 Functions of Education Agencies 133 Delegation of Legislative Powers 133 In the Petition to Transfer Territory from High School District No. 6, Lame Deer, Rosebud County, Montana, to High School District No. 1, Hardin, Big Horn County v. Lame Deer High School District 135 Administrative or Executive Functions 138 Quasi-Judicial Functions 139 Hortonville Joint School District No. 1 v. Hortonville Education Association 140 Judicial Review of School Board Actions 142 Sioux City Community School District v. Iowa Department of Education 144 Authority of Interscholastic Organizations 146
Grabow v. Montana High School Association 148 School Officers 150 Smith v. Dorsey 151 School Elections 154 Hadley v. Junior College District of Metropolitan Kansas City, Mo. 155 School Board Meetings 158 Aldridge v. School District of North Platte 158 Open Meetings and Public Records Laws 161 Open Meetings 162 Rhode Island Affiliate, American Civil Liberties Union, Inc. v. Bernasconi 163 Public Records 165 Zager v. Chester Community Charter School 166 Hovet v. Hebron Public School District 168
Chapter 5
Church and State
176
Background 177 Wall of Separation 178 Colonial Establishments 179 The Three Choices 180 Separation Implemented 180 An Act for Establishing Religious Freedom, Thomas Jefferson 181 Memorial and Remonstrance Against Religious Assessments, James Madison 182 Church Opposition to Schools of the Republic 183 The Public School and Religion 185 Public Taxation to Support Religious Schools 187 Everson v. Board of Education 187 Board of Education of Central School District No. 1 v. Allen 190 The Establishment Clause and the Lemon Test 192 The Lemon Test 193 Lemon v. Kurtzman 193 The Wall Begins to Crumble 197 Mueller v. Allen 199 The Marginalizing of Lemon 201 The New Establishment Clause Jurisprudence 202 Agostini v. Felton 204 Mitchell v. Helms 207 Religion and the Reconstruction Era: Grant and Blaine 211 The Founders’ Intent Regarding Separation 214 New Theories of Church and State 216 Separation 216 Nonpreferential Subsidization 217 Subsidization and Collaboration 218 Vouchers 218 Zelman v. Simmons-Harris 220 Independent Vitality of State Constitutions 223
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Contents Chittenden Town School District v. Department of Education 227 Dickman v. School District No. 62 C 231 Supreme Court’s Secularization of Public Schools: A Bifurcated Standard 233 Released Time for Religious Instruction 233 Illinois ex rel. McCollum v. Board of Education of School District No. 71, Champaign County, Illinois 234 Zorach v. Clauson 236 Volitional Exercises 237 Religious Exercises 238 Silent Meditation 238 Student-Initiated Religious Speech 238 Prayer at Graduation and Extracurricular Activities 239 School District of Abington Township v. Schempp and Murray v. Curlett 240 Stone v. Graham 243 Wallace v. Jaffree 246 Lee v. Weisman 249 Santa Fe Independent School District v. Doe 251 Equal Access Act 258 Board of Education of the Westside Community Schools v. Mergens 258 Facilities 265 Good News Club v. Milford Central School 266 Flag Salute 269 West Virginia State Board of Education v. Barnette 270
Chapter 6
School Attendance
283
State Prerogative 284 Compulsory School Attendance 284 Parens Patriae 286 Prince v. Massachusetts 288 Instruction in Private Schools 292 Equivalent Instruction 292 Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary 293 Residence and Domicile 295 Immigration and Assimilation 296 Plyler v. Doe 297 Martinez v. Bynum 301 Homeless Children 303 The Amish Exception 305 Wisconsin v. Yoder 306 Homeschooling 310 Swanson v. Guthrie Independent School District I-L 315 Murphy v. State of Arkansas 318 Jones v. West Virginia State Board of Education 321 Other Reasons for Nonattendance 323
Excessive Absences 323 Travel 324 Illness 324 Marriage 324 Vaccination 325 Workman v. Mingo County Schools
ix
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Chapter 7 The Instructional Program 337 Marketplace of Ideas 338 Judicial Deference to School Officials 338 Limitation on State Power 340 State ex rel. Andrews v. Webber 340 Sandlin v. Johnson 342 Meyer v. Nebraska 343 Immediato v. Rye Neck School District 345 Boring v. Buncombe County Board of Education 350 Curriculum and the Pall of Orthodoxy 352 Board of Education, Island Trees Union Free School District No. 26 v. Pico 354 Counts v. Cedarville School District 358 Virgil v. School Board of Columbia County, Florida 362 Mozert v. Hawkins County Board of Education 365 Brown v. Woodland Joint Unified School District 369 Health Education 372 Leebaert v. Harrington 373 Parker v. Hurley 375 Evolution versus Creationism 379 Epperson v. State of Arkansas 382 Edwards v. Aguillard 384 Student Testing and Promotion 387 Due Process and Testing 387 Equal Protection and Testing 388 Debra P. v. Turlington 389 Grading and Academic Requirements 393 Withholding Diploma 393 Grade Reduction 394 Grade Standards for Extracurricular Activities 394 Campbell v. Board of Education of Town of New Milford 394 Bilingual Education Programs 398 Lau v. Nichols 399
Chapter 8 Student Speech and Expression 406 Freedom of Speech and Expression 407 Unprotected Speech 408 Clear and Present Danger 409 Material and Substantial Disruption 409
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x
Contents
Tinker v. Des Moines Independent School District 409 Obscenity and Uncivil Discourse 412 Bethel School District No. 403 v. Fraser 414 Morse v. Frederick 417 Scott v. School Board of Alachua County 421 Threats of Violence 424 Fighting Words or Hate Speech 424 True Threats 424 Doe v. Pulaski County Special School District 425 Forum Analysis Applied to Schools 430 Time, Place, and Manner 432 Lamb’s Chapel v. Center Moriches Union Free School District 432 Student Publications and Kuhlmeier 434 Forum Analysis and Student Newspapers 436 Categories of Publications 436 School-Sponsored Publications 437 Non-School Publications 437 Religious Publications 437 Hazelwood School District v. Kuhlmeier 438 The Internet and Free Speech 442 Wisniewski v. Board of Education of the Weedsport Central School District 444 Student Personal Appearance 448 Hair Length 448 School Uniforms 449 Canady v. Bossier Parish School Board 450
Chapter 9
Search and Seizure
460
Exclusionary Rule 461 Public School Searches 461 Reasonable Suspicion 462 T. L. O. and Reasonableness 462 Strip Searches 464 Special Needs and Suspicionless Searches 465 Canine Searches 466 Metal Detector Searches 467 Liability for Illegal Searches 468 New Jersey v. T. L. O. 469 Safford Unified School District v. Redding 474 Vernonia School District 47J v. Acton 477 Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls 480 Doe v. Little Rock School District 485 State of Iowa v. Jones 488
Chapter 10 Student Rights: Common Law, Constitutional Due Process, and Statutory Protections 496 Common Law and the Student Reasonableness 498 In Loco Parentis 499
497
Wiemerslage v. Maine Township High School District 207 499 Constitutional Due Process 501 Substantive Due Process 501 More-Specific-Provision Rule 504 Conscience Shocking 504 Extension of Substantive Due Process 505 Dunn v. Fairfield Community High School District No. 225 505 Corporal Punishment and Substantive Due Process 508 Student Discipline at Common Law 508 The Eighth Amendment 510 Liberty Interests 510 Ingraham v. Wright 513 Procedural Due Process 516 Dixon v. Alabama State Board of Education 518 Goss v. Lopez 520 Zero Tolerance 526 South Gibson School Board v. Sollman 528 Sexual Harassment of Students 531 Deliberate Indifference 532 Franklin v. Gwinnett County Public Schools 533 Gebser v. Lago Vista Independent School District 535 Davis v. Monroe County Board of Education 539 Sauls v. Pierce County School District 543 Child Abuse 549 Reporting 550 Penalty for Failure to Report 550 Arkansas Department of Human Services v. Caldwell 551
Chapter 11 Rights of Students with Disabilities 560 A History of Neglect 561 The Turning Point 562 The Mills Case 563 Mills v. Board of Education of District of Columbia 563 Education for All Handicapped Children Act (EAHCA) 567 Amendments to the Eahca 568 Individuals with Disabilities Education Act (IDEA) 568 The 1997 Amendments to the Idea 568 The 2004 Amendments to the IDEA 569 Interpretation of the Idea 572 Free Appropriate Public Education 572 Extended School Year 573 Regression–Recoupment Dilemma 575 Procedural Safeguards 575 Individualized Education Programs 576 Board of Education of Hendrick Hudson Central School District v. Rowley 577 Schaffer v. Weast 580
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Contents Attention Deficit Hyperactivity Disorder 585 Alvin Independent School District v. A. D. 586 Least-Restrictive Environment 589 Inclusion 591 Beth v. Van Clay 592 Placement in Private Schools 596 The Burlington Test 596 Florence County School District Four v. Carter 598 Children with Disabilities in Sectarian Schools 601 Foley v. Special School District of St. Louis County 602 Related Services 604 Irving Independent School District v. Tatro 605 Cedar Rapids Community School District v. Garret F. 607 Discipline and the “Stay-Put” Provision 609 The “Stay-Put” Provision 610 Honig v. Doe 610 Compensatory Education 615 Attorney’s and Expert’s Fees 615 Arlington Central School District v. Murphy 616 Rehabilitation Act of 1973, Section 504 618 Difference Between Section 504 and the Idea 619 Section 504 and Aids 620 The Idea and Aids 620 Martinez v. School Board of Hillsborough County 621
Chapter 12
Tort Liability
631
Definition of a Tort 632 Intentional Interference 633 Assault 634 Battery 634 Infliction of Emotional Distress 635 False Imprisonment 635 Spears v. Jefferson Parish School Board 636 Strict Liability 638 Negligence 639 Standard of Conduct 639 The Reasonable Person 639 Elements of Negligence 640 Duty 640 Standard of Care 641 Proximate or Legal Cause 642 Injury or Actual Loss 643 Medeiros v. Sitrin 643 Jerkins v. Anderson 648 Brownell v. Los Angeles Unified School District 652 The Tort of Bullying 655 Bully Liability 656 Parental Liability 657 School District Liability 657 Wallmuth v. Rapides Parish School Board 659 Defenses for Negligence 662
Contributory Negligence 662 Comparative Negligence 663 Assumption of Risk 663 Immunity 664 Funston v. School Town of Munster 664 Hutchison v. Toews 666 Aaris v. Las Virgenes Unified School District Hammond v. Board of Education of Carroll County 670 Exculpatory Releases 672 Wagenblast v. Odessa School District No. 105-157-166J 673 Educational Malpractice 676
xi
668
Chapter 13 Defamation and Student Records 683 Defamation Defined 684 Defamation in Public Schools 685 Defamation Per Se and Per Quod 685 Privilege 686 Malice 688 Good Faith 688 Truth 689 Tatum v. Orleans Parish School Board 689 Hett v. Ploetz 691 Desselle v. Guillory 693 Public Officials and Figures 695 Milkovich v. Lorain Journal Co. 698 Johnson v. Robbinsdale Independent School District No. 281 702 Student Records 707 Family Educational Rights and Privacy Act 708 Private Damages 710 Parental Rights 710 Posting of Grades 711 Student-Graded Work 711 Owasso Independent School District v. Falvo 711
Chapter 14 School District Liability 721 Sovereign Immunity 722 Richardson v. Rankin County School District 723 State-Agent Immunity 725 Lentz v. Morris 726 Abrogation of Immunity 727 Discretionary Functions 728 Mosley v. Portland School District No. 1J 729 Ette ex rel. Ette v. Linn-Mar Community School District 730 Insurance Waiver of Immunity 734 Dugger v. Sprouse 734 Proprietary Functions 735
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xii
Contents
Licensees and Invitees 736 Tanari v. School Directors of District No. 502 736 Nuisance 738 Hendricks v. Southfield Public Schools 739 Attractive Nuisance 739 Collomy v. School Administrative District No. 55 740 Section 1983, Civil Rights Act Liability 743 “Persons” Under the Act 743 School Board Liability Under Section 1983 744 Official Negligence Under Section 1983 744 Individual Liability Under Section 1983 745 Constitutional Torts: Deliberate Indifference and State-Created Danger 745 Wood v. Strickland 747 Lee v. Pine Bluff School District 751 Eleventh Amendment Immunity and Local School Districts 753
Chapter 15 Certification, Contracts, and Tenure 761 Teacher Certification 762 Background 762 Requirements 763 Ambach v. Norwick 764 Wardwell v. Board of Education of the City School District of the City of Cincinnati 766 Richardson v. North Carolina Department of Public Instruction Licensure Section 767 In re Appeal of Timothy Morrill (New Hampshire State Board of Education) 770 Teacher Contracts 772 The Standard Contract 772 Feldhusen v. Beach Public School District No. 3 773 Tenure 775 Grounds for Termination of Tenured Teachers 775 Scheer v. Independent School District No. I-26 of Ottawa County 776 Incompetency 778 Collins v. Faith School District No. 46-2 779 Insubordination 782 Gaylord v. Board of Education, Unified District No. 218, Morton County 783 In re Termination of James E. Johnson 784 Immorality 786 Immoral Conduct 786 Toney v. Fairbanks North Star Borough School District 787 Board of Education of Hopkins County v. Wood 791 Elvin v. City of Waterville 793 Cause or Good Cause 795 Board of Directors of Lawton-Bronson v. Davies 796 Reduction in Force 799
Zoll v. Eastern Allamakee Community School District 799 Constitutional Protection of Contracts 801 State v. Project Principle, Inc. 803
Chapter 16 Teacher Rights and Freedoms 808 The Source of Rights 809 Academic Freedom 810 First Amendment: Primary Repository 810 Speech Rights of Public Employees 811 Pickering and the Balancing of Interests 812 Pickering v. Board of Education 813 Speech and the Connick Rule 816 Connick v. Myers 817 Garcetti and the Pursuant to Duty Test 823 Garcetti v. Ceballos 825 Weintraub v. Board of Education of the City District of the City of New York 828 Williams v. Dallas Independent School District 829 Lee v. York County School Division 831 Mayer v. Monroe County Community School Corporation 835 Mt. Healthy and Motivating Factors 836 Mt. Healthy City School District Board of Education v. Doyle 837 Givhan: Expressing Public Concerns in Private 840 Givhan v. Western Line Consolidated School District 840 Stroman v. Colleton County School District 841 Privacy 844 Teacher Workplace Searches 844 Mental and Physical Examinations of Teachers 845 Daury v. Smith 846 Drug Testing of Teachers 848 Knox County Education Association v. Knox County Board of Education 851 Freedom of Religion 856 Title VII 856 Promoting Religion 857 Religious Garb 857 Privilege Against Self-Incrimination 858
Chapter 17 Due Process Rights of Teachers 865 Four Aspects of Due Process 866 Substantive Due Process 866 Liberty Interests 867 Property Interests 868 Board of Regents v. Roth 870
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Contents Perry v. Sindermann 873 Harrah Independent School District v. Martin 876 Procedural Due Process 879 Hearing 880 Impartiality 881 Cleveland Board of Education v. Loudermill 881 Crump v. Board of Education of Hickory Administrative School Unit 885 The Vagueness Test 889 Loyalty Oaths 890 The Irrationality and Presumption Test 892 Resident Status 892 Pregnancy 893 Cleveland Board of Education v. LaFleur 893
Chapter 18 Discrimination in Employment 899 Constitutional and Statutory Protections 900 Federal Civil Rights Statutes 900 Enforcement of Employment Rights 901 Equal Protection Clause 902 Equal Protection of Gender 903 Three Equal Protection Tests 903 Title VI 905 Title VII 906 United States v. South Carolina 907 Hazelwood School District v. United States 911 Association of Mexican-American Educators v. State of California 914 Diversity and Affirmative Action 919 Wygant v. Jackson Board of Education 922 Sex Discrimination 925 Title VII 925 Title IX 926 Jackson v. Birmingham Board of Education 927 North Haven Board of Education v. Bell 930 Pregnancy 932 Employment Benefits Discrimination 932 Sexual Harassment 933 Quid Pro Quo 933 Hostile Environment 933 Retaliation 934 Clark County School District v. Breeden 935 Trautvetter v. Quick 938 Religious Discrimination 941 Ansonia Board of Education v. Philbrook 942 Cowan v. Strafford R-VI School District 944 Equal Pay Act 946 Age Discrimination 948 Discrimination Against Persons with Disabilities 950 School Board of Nassau County v. Arline 952
xiii
Chalk v. United States District Court Central District of California and Orange County Superintendent of Schools 955 Family and Medical Leave Act of 1993 957
Chapter 19 Bargaining
Collective 966
Background of Labor Relations 967 Private Versus Public Sector Bargaining 967 The Right of Public Employees to Bargain Collectively 968 Norwalk Teachers Association v. Board of Education of City of Norwalk 970 Anderson Federation of Teachers, Local 519 v. School City of Anderson 973 Board of Education v. New Jersey Education Association 974 City of Biddeford v. Biddeford Teachers Association 977 Scope of Bargaining 979 Kenai Peninsula Borough School District v. Kenai Peninsula Education Association 980 Pawtucket School Committee v. Pawtucket Teachers Alliance 981 Collective and Individual Rights 984 Bargaining Rights 984 Agency-Shop and Constitutional Rights of Individuals 985 Nonmember Union Fees 985 Davenport v. Washington Education Association 988 Ysursa v. Pocatello Education Association 991 City of Madison v. Wisconsin Employment Relations Commission 994
Chapter 20 Desegregation of Public Schools 1001 The American Dilemma 1002 Separate but Equal 1003 Plessy and Sanctioning Separation 1004 Separate-but-Equal Challenged 1005 Brown: Separation Inherently Unequal 1006 Brown v. Board of Education of Topeka 1007 Interpreting Brown 1009 Green v. County School Board of New Kent County 1011 Alexander v. Holmes County Board of Education 1013 Quotas and Busing 1013 Swann and the Four Student Assignment Issues 1014 Swann v. Charlotte-Mecklenburg Board of Education 1014 De Facto Segregation 1017
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xiv
Contents
Keyes v. School District No. 1, Denver 1017 Interdistrict Desegregation 1019 Milliken v. Bradley 1021 Unitariness 1023 Board of Education of Oklahoma City Public Schools, Independent School District No. 89 v. Dowell 1025 Freeman v. Pitts 1028 Remedial and Compensatory Remedies 1032 Diversity 1033 Narrow Tailoring 1035 Parents Involved in Community Schools v. Seattle School District No. 1, et al. and Meredith v. Jefferson County Board of Education, et al. 1036
Chapter 21
School Finance
1047
Taxation for Education 1048 Florida Department of Education v. Glasser 1049 Marion and McPherson Railway Co. v. Alexander 1049 Taxation and Equal Protection 1052 School Finance Equity Litigation 1053 Equal Protection Clause and School Finance 1053 Rodriguez and Its Aftermath 1054 Litigation Under State Constitutions 1055 Fundamentality and State Constitutions 1057 Edgewood Independent School District v. Kirby 1062 DeRolph v. State 1067 Bonner ex rel. Bonner v. Daniels, Governor, State of Indiana 1072 Committee for Educational Rights v. Edgar 1075 Budgeting and Accounting for School Funds 1078 San Benito Independent School District v. Farmers’ State Bank 1078
Petition of Auditors of Hatfield Township School District 1081 Public School Indebtedness 1083 Hewitt v. Board of Education 1083
Chapter 22 School Property and Buildings 1090 City of Baker School Board v. East Baton Rouge Parish School Board 1091 City of Bloomfield v. Davis County Community School District 1092 Edmonds School District No. 15 v. City of Mountlake Terrace 1093 School Buildings 1095 School Site Selection 1096 Mullins v. Board of Education of Etowah County 1096 Eminent Domain 1098 In re School District of Pittsburgh 1099 Dare County Board of Education v. Sakaria 1100 Adverse Possession 1103 Lovejoy v. School District No. 46, Sedgwick County 1104 Reversion of School Property 1105 Williams v. McKenzie 1106 Appendix A Selected Constitutional Provisions 1112 Appendix B Information Helpful in Legal Research 1116 Index
1119
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table of cases
The principal cases are in bold type. Cases cited or discussed in the text are roman type. References are to pages.
Albemarle Paper Co. v. Moody, 913, 915 Alden v. Maine, 95, 115, 116 Aldridge v. School District of North Platte, 158–161 Alexander v. Bartlett, 334 Alexander v. Holmes County Board of Education, 1013, 1024, 1042, 1046 Allen v. Town of Sterling, 999 Alliance for Children, Inc. v. City of Detroit Public Schools, 116 Alva v. Sequoia Union High School District, 160 Alvin Independent School District v. A. D., 586–589 Alvin Independent School District v. Cooper, 142 Ambach v. Norwick, 764–766 Ambroiggio v. Board of Education, 71 Ambus v. Ganite Board of Education, 965 American Civil Liberties Union of Kentucky v. Grayson County, Kentucky, 246 American Federation of Teachers-West Virginia, AFL-CIO v. Kanawha County Board of Education, 863, 864 American Power and Light Co. v. Securities and Exchange Commission, 116 Americans United Inc. v. Independent School District No. 622, 280 Anderson Federation of Teachers, Local 519 v. School City of Anderson, 973–974, 999 Anderson v. Anoka Hennepin Independent School District, 733 Anderson v. Banks, 388, 405 Anderson v. Brand, 803 Anderson v. City of Bessemer City, 1028 Andreucci v. Foresteire, 706 Andrews v. Independent School District No. 57, 790 Ankers v. District School Board of Pasco County, 654 Ansonia Board of Education v. Philbrook, 857, 864 Ansonia Board of Education v. Philbrook, 857, 864, 942–944
A A. E. v. Westport Board of Education, 584 A. G. v. Sayreville Board of Education, 558 A. H. Andrews Co. v. Delight Special School District, 174 A. J. M. v. State, 493 A. K. v. Alexandria City School Board, 584 A. W. v. Northwest R-1 School District, 629 Aaris v. Las Virgenes Unified School District, 668–670 Abdel-Hafiz v. ABC, Inc., 702 Abeel v. Clark, 336 Abington Township v. Schempp, 281 Abood v. Detroit Board of Education, 985, 988, 1000 Abraham v. Baldwin, 693 ACLU of Kentucky v. McCreary County, 281 ACLU v. McCreary Co., Kentucky, 246 Adams v. Campbell County School District, 862 Adams v. Richardson, 905, 963 Adams v. Roark, 682 Adams v. State of Oregon, 628 Adams v. State Professional Practices Council, 790 Adams v. Tanner, 345 Adarand Constructors, Inc. v. Pena, 902, 963, 1046 Addington v. Texas, 897 Adkins v. Children’s Hospital, 556 Aetna Life Insurance Co. v. Haworth, 25 AFSCME v. Woodward, 969, 999, 1000 Age v. Bullitt County Schools, 629 Agostini v. Felton, 202, 204–207, 221, 224, 227, 278, 279, 281, 603 Aguilar v. Felton, 198, 202, 204, 278, 279 Aguilera v. Board of Education of the Hatch Valley Schools, 801 Akins v. County of Sonoma, 655 Alabama v. Pugh, 760 Alamo Heights Independent School District v. State Board of Education, 628, 630
xv Copyright 2010 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.
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Table of Cases
Ansorge v. City of Green Bay, 862 Antkowiak v. Ambach, 609 Appelhaus v. McFall, 682 Aratari v. Leetonia Exempt Village School District, 682 Arcadia Unified School District v. State Dept. of Education, 75 Arias v. Las Virgenes Unified School District, 682 Arizona Governing Committee v. Norris, 964 Arizona State Board for Charter Schools v. U.S. Department of Education, 62, 74 Arkansas Department of Human Services v. Caldwell, 551–553 Arlington Central School District Board of Education v. Murphy, 88–90 Arlington Central School District v. Murphy, 115, 616–618 Arons v. New Jersey State Board of Education, 630 Ash v. Board of Education, 977, 1000 Ashuelot National Bank v. School District No. 7, 1084 Ashwander v. Tennessee Valley Authority, 25 Associated Enters, Inc. v. Toltec Watershed Improvement District, 174 Associated Schools of Independent District No. 63 v. School District No. 83 of Renville County, 173 Association of Community Organizations for Reform Now v. New York City Department of Education, 90 Association of Mexican-American Educators v. State of California, 914–919 Atascadero State Hospital v. Scanlon, 115, 116 Atkins v. City of Charlotte, 999, 1000 Atlantic Coast Line Railroad Co. v. City of Goldsboro, 807 Attorney General v. East Jackson Public Schools, 71 Attorney General v. Lowrey, 173 Attorney General v. School Committee of Essex, 281 Attorney General v. School Committee of Northampton, 161 Aubrey v. School District of Philadelphia, 682 Auran v. Mentor School District No. 1, 862 Austin Independent School District v. Robert M., 629 Avery v. Homewood City Board of Education, 795
B B.C. v. Plumas Unified School District, 495 B.W.A. v. Farmington R-7 School District, 423 Babb v. Independent School District No. I-5 of Rogers County, 801 Backie v. Cromwell Consolidated School District No. 13, 862 Bacus v. Lake County, 136 Baggett v. Bullitt, 891, 898 Bahr v. Boise Cascade Corp., 701 Bailey v. Truby, 174 Baker v. Adams, 281 Baker v. Carr, 154, 1088 Baker v. Owen, 557 Bakken v. Schroeder, 157 Ball v. James, 174 Ballard v. Independent School District No. 4 of Bryan County, 789 Balog v. McKeesport Area School District, 807 Baltimore City Board of School Commissioners v. City Neighbors Charter School, 75 Bank of Columbia v. Okely, 557
Barcheski v. Board of Education of Grand Rapids Public Schools, 807 Barnard v. Inhabitants of Shelburne, 405 Barner v. Spearfish School District No. 40-2, 798 Barnes v. Costle, 964 Barnett v. Collection Service Co., 681 Barnett v. Durant Community School, 999 Barnett v. Fairfax County School Board, 596 Barr v. Bernhard, 682 Barrett v. Omaha National Bank, 937 Bartels v. Iowa, 404, 557 Barton v. Independent School District No. I99, 801 Barton v. Rogers, 719 Basarich v. Rodeghero, 705 Baskett v. Crossfield, 719 Basmajian v. Board of Education, 682 Bates v. Little Rock, 557 Battle v. Pennsylvania, 574, 628 Batty v. Board of Education, 70 Bauch v. City of New York, 1000 Bauer v. Board of Education, Unified School District No. 452, 769 Baxter v. Palmigiano, 524 Baynard v. Malone, 548 Bayport–Blue Point School District v. State Division of Human Rights, 955 Beard v. Whitmore Lake School District, 469, 495 Beaufort County Board of Education v. Lighthouse Charter School Committee, 62, 74, 75 Beck v. Board of Education, 71 Beck v. James, 955 Beeching v. Levee, 707 Beehler v. Daniels, 759 Bego v. Gordon, 724 Beilan v. Board of Education, 105, 117, 859, 864 Belcourt v. Fort Totten Public School District, 782 Belier v. Wilson, 131 Bell v. Burson, 884 Bell v. Hood, 534 Bell v. Marseilles Elementary School, 495 Bell v. New Jersey and Pennsylvania, 89 Bell v. School City of Gary, 1046 Bellnier v. Lund, 494 Bell’s Gap Railroad Co. v. Pennsylvania, 1088 Beloit Education Ass’n v. Wisconsin Employment Relations Commission, 982, 983 Belotti v. Baird, 450 Belton v. Gebhart, 1045 Benedetto v. Travelers Insurance Co., 682 Benevolent and Protective Order of Elks, 705 Benitez v. New York City Board of Education, 672 Bennett v. City of Slidell, 759 Bennett v. Kentucky Dept. of Ed., 90 Bennett v. New Jersey, 90 Berea College v. Kentucky, 1004, 1045 Berg v. Glen Cove City School District, 331 Berghorn v. Reorganized School District No. 8, 281 Berkelman v. San Francisco Unified School District, 401 Berlanger v. Nashua, New Hampshire, School District, 715 Bernstein v. Lopez, 885 Betenbaugh v. Needville Independent School District, 453
Copyright 2010 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.
Table of Cases Beth v. Van Clay, 592–596 Bethel Park School District v. Krall, 794, 807 Bethel School District No. 403 v. Fraser, 413, 414–417, 425, 439, 442, 444, 451-452, 499, 556 Beussink v. Woodland R-IV School District, 443 Bishop v. Wood, 898 Bissell v. Davison, 336 Blaine v. Moffat County School District Region No. 1, 790 Blair v. Walker, 719 Bland v. Candioto, 682 Blatchford v. Native Village of Noata, 116 Blue v. Beach, 336 Blunt v. Marion County School Board, 806 Board of County Commissioners of Shelby County, Tennessee v. Burson, 174 Board of County Commissioners v. Idaho Health Facilities Authority, 280 Board of Curators of the University of Missouri v. Horowitz, 339, 387, 404–405, 518, 558 Board of Directors of Davenport Community School District v. Quad City Times, 170 Board of Directors of Lawton-Bronson v. Davies, 796–799 Board of Directors of Sioux City v. Mroz, 806 Board of Ed. of Hendrick Hudson Central School District, Westchester County v. Rowley, 115, 617 Board of Educ. of Louisville v. Society of Alumni of Louisville Male High School, 173 Board of Education of Aberdeen-Huntington Local School District v. State Board of Education, 173 Board of Education of Bath County v. Goodpaster, 137 Board of Education of Blount County v. Phillips, 1098 Board of Education of Borough of West Paterson v. Brophy, 1111 Board of Education of Central School District No. 1 v. Allen, 74, 187, 190–192, 198, 278, 281 Board of Education of Chicago v. Upham, 173 Board of Education of City of Asbury Park v. Asbury Park Education Ass’n, 976 Board of Education of City of Los Angeles v. Swan, 798 Board of Education of City of Minneapolis v. Public School Employees Union (1951), 974 Board of Education of City of New York v. Allen, 174 Board of Education of Golf School District No. 67 v. Regional Board of School Trustees, 335 Board of Education of Hendrick Hudson Central School District v. Rowley, 572 Board of Education of Hendrick Hudson Central School District v. Rowley, 572, 577–580, 606, 628–629 Board of Education of Hopkins County v. Wood, 791–793 Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls, 104, 117, 465–466, 480–485, 495 Board of Education of Jefferson County School District R-1 v. Wilder, 898 Board of Education of Kiryas Joel Village School District v. Grumet, 202, 278, 279 Board of Education of LaGrange School District No. 105 v. Illinois, 601, 604 Board of Education of Minot v. Park District of Minot, 1103
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Board of Education of Montgomery County v. Montgomery County, 1080 Board of Education of Mountain Lakes v. Maas, 326, 330, 336 Board of Education of North Bergen Township v. North Bergen Federation of Teachers, 984 Board of Education of Oak Park v. Illinois State Board of Education, 614 Board of Education of Oklahoma City Public Schools, Independent School District No. 89 v. Dowell, 1019, 1046 Board of Education of Ottawa Township High School District 140 v. Spellings, 116, 628 Board of Education of Roslyn Union Free School District v. Nyquist, 142 Board of Education of School District No. 1, Denver v. Booth, 61 Board of Education of Stamford v. Board of Finance, 972 Board of Education of the School District of Philadelphia v. Kushner, 806 Board of Education of the School District of Philadelphia v. Philadelphia Federation of Teachers AFL-CIO, 807 Board of Education of the Westside Community Schools v. Mergens, 258–265, 281 Board of Education of Town of Ellington v. Town of Ellington, 1081 Board of Education of Town of Stamford v. Board of Finance of Town of Stamford, 1081 Board of Education of Township High School District No. 211, Cook County, Illinois v. Corral, 614 Board of Education of Westside Community Schools v. Mergens, 279, 281 Board of Education v. Allen, 195, 201, 247 Board of Education v. Antone, 233 Board of Education v. Bakalis, 280 Board of Education v. Barnette, 247 Board of Education v. Calderon, 792 Board of Education v. County Board of School Trustees, 174 Board of Education v. Diamond, 628 Board of Education v. Dick, 70 Board of Education v. New Jersey Education Association, 974–977 Board of Education v. New Paltz United Teachers, 999 Board of Education v. Round Valley Teachers Ass’n, 976 Board of Education v. Sinclair, 71 Board of Education v. Stoddard, 173 Board of Education, Island Trees Union Free School District No. 26 v. Pico, 353, 354–357, 358, 404, 556, 862 Board of Regents of the University of Wisconsin System v. Southworth, 245 Board of Regents v. Roth, 21, 106, 117, 387, 405, 557, 838, 866–867, 870–873, 874, 897 Board of School Commissioners of the City of Indianapolis v. Walpole, 806 Board of Trustees v. Freedom of Information Commission, 175 Board of Trustees v. Judge, 790 Board of Trustees v. McMurtry, 336 Bobilin v. Board of Education, 350 Boddie v. Connecticut, 557
Copyright 2010 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.
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Table of Cases
Bohning v. Ohio, 404 Bolling v. Sharp, 117, 879, 902, 963, 1009, 1045 Bomhoff v. White, 897 Bond v. Public Schools of Ann Arbor School District, 71, 75 Bond v. Public Schools, 71 Bonds v. Milwaukee County, 863 Boneau v. Swift and Co., 759 Bonnell v. Lorenzo, 863 Bonner ex rel. Bonner v. Daniels, Governor, State of Indiana, 1072–1074 Bonvento v. Board of Public Instruction of Palm Beach County, 25 Boon v. Boon, 1109 Borden v. Louisiana State Board of Education, 192 Boring v. Buncombe County Board of Education, 350–352 Boring v. Buncombe County, 816, 863 Boucher v. School Board of the School District of Greenfield, 447 Boulder Valley School District RE-2 v. Colorado State Board of Education, 61, 75 Bounds v. Smith, 557 Bowen v. Kendrick, 279 Bowerman v. O’Connor, 280 Bowles v. Willingham, 174 Bown v. Gwinnett County School District, 248 Boy Scouts of America v. Dale, 989 Boyer-town Area School District v. Department of Education, 62 Boykins v. Fairfield Board of Education, 524 Boynton v. Casey, 524 Bradley v. Richmond School Board, 1046 Bragdon v. Abbott, 619, 630, 957 Bragg v. Swanson, 423 Brammer-Hoelter v. Twin Peaks Charter Academy, 837, 864 Brandenburg v. Ohio, 430 Brands v. Sheldon Community School, 508 Branit v. Finkel, 863 Brannum v. Overton County School Board, 491 Breen v. Runkel, 281 Brentwood Academy v. Tennessee Secondary Schools Athletic Ass’n 148 Brewer v. Austin Independent School District, 525, 526, 759 Brewer v. Ray, 71 Briggs v. Board of Directors, 796 Briggs v. Elliott, 1045 Brigham v. State, 1088 Brine v. City of Cambridge, 173 Brinson v. Jackson, 71 Brisson v. Minneapolis Baseball and Athletic Association, 682 Bristol, Virginia School Board v. Quarles, 174 Britton v. Koep, 706 Britton v. South Bend Community School Corp., 924, 963 Broadrick v. Oklahoma, 898 Brock v. Roadway Express, Inc., 884 Brockbill v. Ron Brown Charter School, 62 Bromley v. Michigan Education Ass’n—National Education Ass’n, 993
Brown v. Board of Education of Topeka, 105, 117, 118, 219, 280, 285, 319, 562, 627, 765, 902, 923, 1002, 1003, 1006, 1007–1009, 1011, 1014, 1018, 1021, 1045 Brown v. Hot, Sexy and Safer Productions, Inc., 345, 750 Brown v. Woodland Joint Unified School District, 369–372 Brownell v. Los Angeles Unified School District, 652–659 Bryan v. Yellowstone County Elementary School District No. 2, 164 Bryant v. Whisenant, 71 Bunger v. Iowa High Sch. Athletic Ass’n 149, 174 Burch v. Barker, 437, 442 Burke County Board of Education v. Denton, 629 Burlington County Faculty Ass’n v. Burlington County College, 982 Burlington ex rel. Board of School Commissioners v. Mayor of Burlington, 1111 Burlington Industries Inc. v. Ellerth, 913, 935, 938, 964 Burlington Northern Land & Santa Fe Railway Co. v. White, 934, 965 Burnet v. Coronado Oil and Gas Co., 25 Burnham v. West, 495 Burruss v. Wilkerson, 1054, 1088 Bush v. City of Norwalk, 759 Bush v. Gore, 6 Bush v. Smith, 655 Byars v. City of Waterbury, 450 Byer v. Rural High School District No. 4 of Brown County, 1085 Byram Township Board of Education v. Byram Township Education Ass’n, 999, 1000 Byrd v. Livingston Independent School District, 301 Byrne v. Board of Education, School of West Allis–West Milwaukee, 957 Byrne v. Public Funds for Public Schools, 278
C C. B. v. Bobo, 553 C. N. v. Ridgewood Board of Education, 716, 717 Cadieux v. Board of Education of the City School District for the City of Schenectady, 682 Calder v. Bull, 556 Cales v. Howell Public Schools, 495 Calhoun v. Gaines, 884 California Federal Savings and Loan Ass’n. v. Guerra, 963 California Teachers Assn. v. Board of Trustees, 58 California v. Bakke, 1038 Campaign for Fiscal Equity, Inc. v. State of New York, 1089 Campbell v. Aldrich, 173 Campbell v. Board of Education of Town of New Milford, 394–398, 404 Campbell v. St. Tammany Parish School Board, 269, 361, 362 Canady v. Bossier Parish School Board, 450–454 Cannon v. University of Chicago, 533, 534, 536 Cantwell v. Connecticut, 102, 117, 278, 326, 336, 862 Capacchione v. Charlotte-Mecklenburg Schools, 1024, 1046 Capistrano Unified School District v. Wartenberg, 629 Carbondale Area School District v. Fell Charter School, 75
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Table of Cases Cardiff v. Bismarck Public, 71 Carey v. Piphus, 743, 759, 886 Carlile v. South Routt School District RE-3J, 964 Carlisle Area School District v. Scott, 630 Carlson v. School District No. 6 of Maricopa County, 778 Carpio v. Tucson High School District, 71 Carrington v. Rash, 557 Carson v. Cook, 492 Carson v. State, 1111, 1095 Carter by Carter v. U.S. Steel Corp., 759 Cary v. Board of Education of Adams-Arapahoe School District 28-J, 994 Castaneda v. Pickard (Castaneda I), 398, 405 Castaneda v. Pickard (Castaneda II), 405 Castaneda v. Pickard (Castaneda III), 400 Cathe A. v. Doddridge County Board of Education, 558 Cavarretta v. Department of Children and Family Services, 553 Cedar Rapids Community School Dist. v. City of Cedar Rapids, 1093 Cedar Rapids Community School District v. Garret F., 607–609 Cefalu v. East Baton Rouge Parish School Board, 603 Center for Law and Education v. Department of Education, 90 Centranchis v. Parish of Jefferson, 759 Chalk v. United States District Court Central District of California and Orange County Superintendent of Schools, 955–957 Chalupnik v. Savall, 1051 Chambersburg Area School District v. Commonwealth, 1000 Chamlee v. Henry County Board of Education, 734 Chandler v. Jones, 281 Chandler v. McMinnville School Dist., 425, 452 Chandler v. Miller, 849, 850, 863, 864 Chandler v. South Bend Community School Corp., 71 Chaplinsky v. New Hampshire, 424, 426 Chapman v. Furlough, 719 Chapman v. Gorman, 153 Charles Gabus Ford, Inc. v. Iowa State Highway Commission, 759 Chee-Craw Teachers Ass’n v. Unified School District No. 247, 999, 1000 Chicago Board of Education v. Payne, 793 Chicago Teachers Union, Local No. 1 v. Hudson, 986, 1000 Chief of Police v. Town of Dracut, 999 Child Welfare Society of Flint v. Kennedy School District, 173 Childress v. Madison County, 676, 682 Chittenden Town School District v. Department of Education, 227–231 Churchill v. S.A.D. No. 49 Teachers Ass’n, 994 Cincinnati School Dist. Bd. of Edn. v. Walter, 1068 Cipriano v. City of Houma, 157 Cipu v. North Haven Board of Education, 778 Circillo v. Milwaukee, 681 Cirillo v. City of Milwaukee, 682 Citizens Mutual Building Ass’n v. Edwards, 807 Citizens United v. Federal Election Commission, 6, 25 City Board of Education of Athens v. Williams, 1051
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City of Baker School Board v. East Baton Rouge Parish School Board, 1091 City of Biddeford v. Biddeford Teachers Association, 977–979 City of Bloomfield v. Davis County Community School District, 1092–1093 City of Boerne v. Flores, 115, 116 City of Dallas v. Mosely, 142 City of Houston v. McCarthy, 1052 City of Los Angeles, Department of Water and Power v. Manhart, 964 City of Madison v. Wisconsin Employment Relations Commission, 994–996 City of New Haven v. Town of Torrington, 864 City of New York v. DeLury, 999 City of Ontario, California v. Quon, 863 City of Philadelphia v. Duda, 681 City of Richmond v. J. A. Croson Co., 902, 963, 1034, 1046 Claremont School District v. Governor, 1088 Clark County School District v. Breeden, 935–937 Clark v. Dallas Independent School District, 442 Clarke v. Redeker, 335 Clements v. Board of Trustees of Sheridan County School District No. 2, 524, 557 Cleveland Board of Education v. LaFleur, 893–895, 898 Cleveland Board of Education v. Loudermill, 518, 558, 881–885, 897, 898 Clinton Municipal Separate School District v. Byrd, 515 Coates v. City of Cincinnati, 898 Cochran v. Louisiana State Board of Education, 187, 188, 191, 278, 386 Cockrel v. Shelby County School District, 817, 863 Coffin v. Coffin, 719 Coffman v. State, 494 Coffman v. Tracker, 964 Cohen v. California, 863 Cohen v. State, 124 Cole v. Oroville Union High School District, 256 Cole v. Richardson, 892, 898 Colegrove v. Green, 154 Coleman v. Shoemaker, 1109 Coles v. Cleveland Board of Education, 255 Collins v. Faith School District No. 46-2, 779–782 Collins v. Iowa Liquor Control Commission, 782 Collins v. Janey, 160 Collomy v. School Administrative District No. 55, 740–742 Colon v. Marzec, 759 Colonial School Board v. Colonial Affiliate, 982 Columbus Board of Education v. Penick, 1046 Colvin ex rel. Colvin v. Lowndes County, 558 Committee for Educational Rights v. Edgar, 1075–1079 Committee for Public Education and Religious Liberty v. Nyquist, 198, 202, 278 Commonwealth v. Bey, 335 Commonwealth v. County Board of Arlington County, 999 Commonwealth v. Fahey, 174 Commonwealth v. Hall, 336 Commonwealth v. Hartman, 50–52, 74 Commonwealth v. Herr, 257, 864 Commonwealth v. Neilsen, 494
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Table of Cases
Commonwealth v. Smith, 495 Commonwealth, Department of Highways v. City of Winchester, 1103 Comprehensive Community Solutions v. Rockford School District, 62 Connally v. General Construction Co., 898 Connell v. Higginbotham, 891, 898 Conner v. Fort Gordon Bus Co., 964 Connett v. Freemont County School District No. 6, 681 Connick v. Myers, 817–823, 843, 863, 985 Connor v. Schnuck Markets, Inc., 964 Conover v. Board of Education, 161, 174 Constantine v. Rectors and Visitors of George Mason University, 116 Cook v. Griffin, 190 Cooper v. Aaron, 1045 Cooper v. McJunkin, 681 Cooper v. United States Ski Association, 676 Corales v. Bennett, 557 Corbett v. Regional Center for the East Bay, Inc., 630 Cordrey v. Euckert, 575, 628 Cormier v. Sinegal, 682 Corning Glass Works v. Brennan, 964 Cornwell v. State Board of Education, 404 Correa v. Vance, 630 Cottrell v. National Collegiate Athletic Association, 702 Council of Organizations and Others for Education About Parochiaid, Inc. v. Governor, 56, 74 Counts v. Cedarville School District, 358–362 County of Alleghany v. ACLU, 257, 281 County of McLean v. Humphrey, 334 County of Sacramento v. Lewis, 504, 506, 557 County School Board of Prince Edward County v. Griffin, 280, 334, 336 Covert v. Bensalem Township School District, 807, 889 Cowan v. Strafford R-VI School District, 944–946 Crager v. Board of Education of Knott County, Kentucky, 863 Craig v. Boren, 963 Craig v. County of Los Angeles, 916 Craig v. New Hanover County Board of Education, 734 Cram v. Lamson and Sessions Co., 964 Cramp v. Board of Public Instruction, 891, 898 Crane by Crane v. Indiana High School Athletic Ass’n, 174 Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee, 930 Crawford v. Pittman, 574, 628 Crawfordsville v. Hays, 862 Crisp County School System v. Brown, 727 Crisp v. Thomas, 758 Croft v. Governor of Texas, 246 Crowell v. School District No. 7, 758 Crump v. Board of Education of Hickory Administrative School Unit, 806, 885–889 Cruzan v. Director, Missouri Department of Health, 112 Cumming v. Board of Education of Richmond County, 1004, 1007, 1045 Cunico v. Pueblo School District No. 60, 963 Cunningham v. Beavers, 511, 557 Curcio v. Collingswood Board of Education, 965 Cureton v. Philadelphia School District, 725, 681
Curtis Publishing Co. v. Butts, 697, 700, 720 Cypress-Fairbanks Independent School District v. Michael F., 601, 628
D D. B. v. Lafon, 423 D. S. W. v. Fairbanks North Star Borough School District, 682 D.C., a Minor, v. R.R., a Minor, 682 D.F. v. Board of Education of Syosset Central School District, 429 Daddow v. Carlsbad Municipal School District, 754, 760 Dailey v. Los Angeles Unified School District, 654, 655 Daily v. Board of Education of Morrill County School District No. 62, 557 Dalehite v. United States, 758 Dallas Morning News Co. v. Board of Trustees of Dallas Independent School District, 175 Danenhoffer v. State, 681 Daniel R. R. v. State Board of Education, 629 Daniel S. v. Board of Education of York Community High School, 709, 720 Daniels v. Quinn, 839 Daniels v. Williams, 759 Danos v. Foret, 668 Dare County Board of Education v. Sakaria, 1100–1103 Dartmouth College v. Woodward, 74, 99 Dartmouth v. Woodward, 25 Daury v. Smith, 846–848, 863 Davenport v. Washington Education Association, 987, 988–991, 992, 999, 1000 Davidson v. Board of Governors, 965 Davidson v. Middlefort Clinic, Inc., 964 Davis v. Alaska, 525 Davis v. County School Board of Prince Edward County; Brown v. Board of Education of Topeka, 1011 Davis v. County School Board, 1045 Davis v. Harrison Community Schools Board of Education, 778 Davis v. Hillsdale Community School District, 558 Davis v. Monroe County Board of Education, 86, 117, 532, 539–543, 546, 558 Davis v. Scherer, 745 Davis v. Scherer, 759 Davis v. State, 330 Dawkins v. Billingsley, 719 Day v. South Park Independent School District, 1000 De Bolt v. McBrien, 719 De Jonge v. Oregon, 117, 862 Deal v. Cincinnati Board of Education, 1046 Deal v. Hamilton County Department of Education, 628 Dean v. Weakley County Board of Education, 638 Dearborn Fire Fighters Union Local No. 412 v. City of Dearborn, 999 Debra P. v. Turlington, 388, 389–393, 405 DeJesus v. Penberthy, 524 Delgado v. Freeport Public School District, 335 Delta Special School District No. 5 v. McGehee Special School District No. 17, 303, 335 DeMichele v. Greenburgh Central High School District No. 7, 889
Copyright 2010 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.
Table of Cases Dennis v. United States, 103, 117 Denver Board of Education v. Booth, 173 DeRolph v. State, 1057, 1067–1071, 1088 DeShaney v. Winnebago County Dept. of Social Servs., 752 Desselle v. Guillory, 693 Detroit Edison Co. v. East China Township School District No. 3, 174 Devries v. Fairfax County School Board, 629 Dickens by Dickens v. Johnson County Board of Education, 526 Dickman v. School District No. 62 C, 231–233, 281 Diefenderfer v. Budd, 161 Dilger v. School District 24 CJ, 235 Dillon v. Pulaski County Special School District, 526 District of Columbia v. Royal, 647 District v. Ault, 795 Dixon v. Alabama State Board of Education, 503, 516, 518–520, 557, 558, 880, 897 Dodge City NEA v. Unified School District No. 443, 999 Dodge v. Board of Education of City of Chicago, 116, 802, 803, 807 Doe A. v. Green, 558 Doe v. Belleville Public School District No. 118, 630 Doe v. Claiborne County, 759 Doe v. Defendant I., 629 Doe v. DeKalb County School District, 957 Doe v. Dolton Elementary School District No. 148, 630 Doe v. Duncanville Independent School District, 281 Doe v. Indian River School District, 255 Doe v. Knox County Board of Education, 965 Doe v. Little Rock School District, 485–488 Doe v. Maher, 628 Doe v. Manheimer, 655 Doe v. Pulaski County Special School District, 424, 425–430 Doe v. Renfrow, 466, 468, 495 Doe v. Smith, 573, 628 Doe v. Todd County School District, 614 Dohanic v. Department of Education, 807 Dominy v. Mays, 793 Doninger v. Niehoff, 443 Donohue v. Copiague Union Free School District, 677, 682 Douglas v. California, 557 Dowell v. School District, 71 Doyle v. Bowdoin College, 676, 682 Dresner v. Regional Board of School Trustees of Kane County, 335 Driving School Assoc. v. San Mateo Union High School District, 71 Dryden v. Marcellus Community Schools, 160 Due v. Florida Agricultural and Mechanical University, 516, 558 Duffield v. School District of Williamsport, 336 Dugger v. Sprouse, 734–735 Duke v. Grady Municipal Schools, 754, 760 Dunajewski v. Bellmore-Merrick Central High School District, 693 Duncan v. Coffee County, Tennessee, 174 Duncan v. Rzonca, 682 Dunn v. Blumstein, 766
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Dunn v. Fairfield Community High School District No. 225, 505–508 Dupont v. Mills, 1084 Dupree v. School Committee of Boston, 807 Dusckiewicz v. Carter, 682 Dwayne Kibbe v. Elida School District, 782
E Eagleton ex rel. Reorganized School District R-I of Miller County v. Van Landuyt, 142 East Canton Education Ass’n. v. McIntosh, 707 Easthampton v. County Commissioners of Hampshire, 1103 Eastman v. Williams, 681 Edelman v. Jordan, 115, 760 Edgewood Independent School District v. Kirby, 173, 1048, 1062–1067, 1088, 1089 Edmonds School District No. 15 v. City of Mountlake Terrace, 1093–1095 Edmundson v. Independent School District, 1085 Edwards v. Aguillard, 117, 281, 381, 384–387, 404 EEOC v. Townley Engineering Co., 864 Eggers v. Bullitt County School District, 630 Eisenberg v. Montgomery County Public Schools, 1046 Eisenstadt v. Baird, 112 Ekalaka Unified Board of Trustees v. Ekalaka Teachers Association, NEA, 983 Elkins v. United States, 461, 494 Ellerbee v. Mills, 707 Ellis v. Brotherhood of Railway, Airline, and S.S. Clerks, 1000 Elrod v. Burns, 1000 Elvin v. City of Waterville, 793–795 Employees v. Department of Public Health and Welfare, 116 Engel v. Vitale, 237, 281 Enquist v. Oregon, 903 Enterprise City Board of Education v. C.P. ex rel. J.P., 558 Environmental Charter High School v. Centinela Valley Union High School District, 75 Epperson v. Arkansas, 356, 386 Epperson v. State of Arkansas, 382–384, 404 Equal Employment Opportunity Commission v. Hickman Mills Consolidated School District No. 1, 965 Equal Employment Opportunity Commission v. Liberal R-II School District, 965 Equal Employment Opportunity Commission v. Madison Community Unit School District No. 12, 964 Equal Employment Opportunity Commission v. Tree of Life Christian Schools, 965 Erickson v. Board of Education, 630 Escatel v. Atherton, 558 Ette ex rel. Ette v. Linn-Mar Community School District, 681, 730–734 Evans v. Welch, 1104 Evans-Marshall v. Board of Education of Tipp City Exempted Village School District, 750 Everson v. Board of Education, 102, 187–190, 191, 217, 232, 233, 235, 277, 279, 280 Ex parte Trottman v. Russell County Board of Education, 758 ex rel. Beattie v. Board of Education, 627
Copyright 2010 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.
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ex rel. Burpee v. Burton, 556, 681 ex rel. Chambers v. School District No. 10, 281 ex rel. Douglas v. Calvary Academy, 335 ex rel. Douglas v. Faith Baptist Church, 335 ex rel. Hubbard v. Buffalo Independent School District, 336 ex rel. Labaugh v. Board of Education of District No. 2, 336 ex rel. McCollum v. Board of Education of School District No. 71, 281 ex rel. Oberti v. Board of Education of Clementon School District, 629 ex rel. Public School District No. 6 v. Taylor, 864 ex rel. Robinson v. Keefe, 174 ex rel. Vollmar v. Stanley, 280 ex rel. Warren v. Nusbaum (III), 280
F Fairfax Covenant Church v. Fairfax County School Board, 269 Faragher v. Boca Raton, 936 Faragher v. City of Boca Raton, 934, 938, 964 Farina v. Board of Education of City of New York, 336 Fazzolari v. Portland School District No. 1J, 647 FCC v. Pacifica, 447 Febres v. The Camden Board of Education, 965 Fedor v. Mauwehu Council, Boy Scouts of America, Inc., 676 Felder v. Johnson, 71 Feldhusen v. Beach Public School District No. 3, 773–775 Fellowship Baptist Church v. Benton, 335 Fennell v. Pauley, 1052 Fenton v. Stear, 526 Ferguson v. Thomas, 897 Ferrara v. Mills, 822 Ferrari v. American Home Products Corp, 331 Ferrell v. Dallas Independent School District, 449 Ferris v. Board of Education of Detroit, 759 Ferris v. Special School District No. 1, 876 Fertich v. Michener, 681 Fielder v. Board of Education, 524 Firefighter’s Institute for Racial Equality ex rel. Anderson v. City of St. Louis, 914 Fisher v. Clackamas County School, 281 Fiske v. Kansas, 862 Fitzgerald v. Barnstable School District, 548 Fitzgerald v. Camdenton R – III School District, 584 Fitzgerald v. Fairfax County School Board, 614 Fitzpatrick v. Bitzer, 116 Flast v. Cohen, 25 Fleischfresser v. Directors of School District 200, 372 Florence County School District Four v. Carter, 570, 597, 598–601, 628, 629 Florida Department of Education v. Glasser, 1049, 1088 Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 116 Flory v. Smith, 74 Floyd County Board of Education v. Slone, 769 Fogg v. Board of Education of Union School Dist. of Littleton, 74
Foley v. Special School District of St. Louis County, 602–604, 629 Folkers v. Lincoln County School District, 983 Ford v. Ford, 287, 334 Foreman v. Chester-Upland School Dist., 75 Forest Grove School District v. T.A., 598, 626, 627, 629 Forstrom v. Byrne, 336 Fort Zumwalt School District v. Clynes, 573, 601, 628 Foster v. Tupelo Public School District, 524 Fowler v. Clayton School District, 335 Fowler v. Unified School District No. 259, 603 Francine Delany New School for Children, Inc. v. Asheville City Board of Education, 63 Frank G. v. Board of Education of Hyde Park, 597, 629 Frank v. Orleans Parish School Board, 681 Franklin Central Gay/Straight Alliance v. Franklin Township Community School Corp., 264 Franklin Township Board of Education v. Quakertown Education Ass’n, 976 Franklin v. Gwinnett County Public Schools, 532, 533–535, 536, 558, 927, 957, 964 Franklin v. Lodge 1108, Frasca v. Andrews, 709, 720 Frazer v. St. Tammany Parish School Board, 680 Frazier v. State, 153 Fredrickson v. Denver Public School District No. 1 798 Freedom from Religion Foundation v. Hanover School Dist., 272 Freeman v. Pitts, 1024, 1028–1032, 1039, 1046 Freiler v. Tangipahoa Parish Public Schools, 386 Fremont RE-1 School District v. Jacobs, 174 Fresh Start Academy v. Toledo Board of Education, 90 Frontiero v. Richardson, 904, 963 Frost v. Hawkins County Board of Education, 368 Fuller v. Decatur Public School Board of Education, 558 Fullilove v. Klutznick, 921, 922, 963 Funston v. School Town of Munster, 664–666
G Gabrielli v. Knickerbocker, 282 Garcetti v. Ceballos, 823, 825–827, 828, 862, 863 Garcia v. Board of Education, 706 Garcia v. Miera, 512, 557, 558, 759 Garcia v. San Antonio Metropolitan Transit Authority, 91, 116 Gardner v. State, 681 Gargiul v. Tompkins, 863 Garrity v. New Jersey, 864 Gary Teachers Union, Local 4, American Federation of Teachers v. School City of Gary, 792 Gaspar v. Bruton, 387, 405 Gaylord v. Board of Education, Unified District No. 218, Morton County, 783–784 Gebser v. Lago Vista Independent School District, 532, 535–538, 545, 558, 964 Geick v. Kay, 719 Gentle v. Pine Valley Apartments, 759 Georgia Association of Retarded Citizens v. McDaniel, 628 Georgia Ass’n of Retarded Citizens v. McDaniel, 628, 629 Georgia State Conference Branches of NAACP v. Georgia, 1046
Copyright 2010 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.
Table of Cases Gerhardt v. Heid, 864 Gertz v. Robert Welch, Inc., 697, 699, 700, 705, 706, 720 Gfell v. Rickelman, 454 Giacona v. Tapley, 759 Giambrone v. Douglas, 758 Gibbons v. Ogden, 90, 92, 116 Gibbons v. Ogden, 90 Gillan v. Board of Regents, 862 Gilliland v. Board of Education of Pleasant View Consolidated School District No. 622, 806 Ginsberg v. New York, 447, 556 Gitlow v. New York, 117, 862 Givhan v. Western Line Consolidated School District, 826, 840–841, 863 Goetz v. Ansell, 272 Gohn v. Akron School, 71 Goldberg v. Kelly, 872, 897 Goldman v. Moore, 160 Goldsmith v. Board of Education, 862 Gong Lum v. Rice, 1004, 1008, 1045 Gonzaga University v. Doe, 710, 716, 720 Gonzales v. Carhart, 211 Good News Club v. Milford Central School, 266–269 Good v. Howard, 1098 Goodman v. City of LeClaire, 732 Goodman v. School District No. 1, 173 Goodwin v. Kennedy, 707 Gordon v. Board of Education of City of Los Angeles, 236 Gosnell v. Hogan, 164 Goss v. Lopez, 106, 117, 503, 504, 518, 520–526, 557, 558 Grabow v. Montana High School Association, 148–150, 174 Grace Bible Fellowship v. Maine School Administration #5, 281 Graham v. Connor, 504, 557 Grainger County v. State, 1088 Granfield v. Regional Board of School Trustees of Bureau County, 335 Granger v. Cascade Country School District, 70, 71 Gratz v. Bollinger, 921, 963, 1034, 1038, 1046 Gray v. Sanders, 174 Gray v. Union County Intermediate Education District, 897 Grayned v. City of Rockford, 432, 889, 898, 994 Great Northern Life Insurance Co. v. Read, 116 Green v. Clarendon County School District Three, 965 Green v. County School Board of New Kent County, 1011–1013, 1019, 1024, 1046 Green v. Jones, 161, 174 Green v. Mansour, 116 Greenland School District v. Amy N., 629 Griffin v. County School Board of Prince Edward County, 280, 334, 336, 1012, 1045 Griffin v. Illinois, 1088 Griffin v. Prince Edward County Schools, 1010 Griggs v. Duke Power Co., 906, 910, 915, 963 Griswold v. Connecticut, 112, 117, 502, 557, 844, 863, 969 Grit v. Wolman, 278 Groh v. Ramirez, 494 Grosz v. City of Miami Beach, 335 Grove City College v. Bell, 535, 558, 618, 630 Grove v. Mead School District No. 354, 370
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Gruenke v. Seip, 681 Grutter v. Bollinger, 921, 963, 1038, 1046 Guadalupe Organization, Inc. v. Tempe Elementary School District No. 3, 405 Guardians Association of New York City Police Department v. Civil Service Commission of City of New York, 914 Guilford School Township v. Roberts, 862 Gunnip v. Lautenklos, 160 Gurmankin v. Costanzo, 965 Gurney v. Ferguson, 233 Guzick v. Drebus, 409, 449
H H. H. v. Moffett, 557 Hackett v. Brooksville Graded School District, 281 Hackworth v. Board of Education for the City of Atlanta, 175 Hadley v. Junior College District of Metropolitan Kansas City, Mo., 155–158, 174 Hadley v. Rush Henrietta Central School District, 331 Hale v. Mann, 958, 965 Hall v. Tawney, 511, 557 Hall v. Vance County Board of Education, 628 Hallett v. Post Printing & Publishing Co., 173 Halstead v. Rozmiarek, 173 Hamer v. Board of Education, 71, 75 Hamilton v. Regents, 305, 335 Hammond v. Board of Education of Carroll County, 670–673 Hanes v. Board of Education of City of Bridgeport, 807 Haney v. County Board of Education, 1046 Hannibal and St. J. Railroad Co. v. Husen, 173 Hans v. Louisiana, 116 Hansen v. Vermillion School District No. 13-1, 801 Harding v. Wiley, 1051 Harfst v. Hoegen, 281 Harlow v. Fitzgerald, 759 Harper v. Edgewood Board of Education, 454 Harper v. Virginia State Board of Elections, 557 Harrah Independent School District v. Martin, 806, 876–879 Harris v. County of Forsyth, 516, 681 Harris v. Forklift Systems, Inc., 934, 936, 964 Harris v. Mechanicville Central School District, 806 Harris v. Nordquist, 164 Harris v. Victoria Independent School District, 823 Harrison v. Sobol, 335 Harry A. v. Duncan, 759 Hartpence v. Youth Forestry Camp, 782 Hartzell v. Connell, 66–71, 75 Harwood v. Johnson, 681 Hassan v. Lubbock Independent School District, 516, 681 Hawkins v. Sarasota County School Board, 543 Hazelwood School District v. Kuhlmeier, 351, 354, 363, 404, 413, 417, 435, 436, 437, 438–442, 451, 452 Hazelwood School District v. United States, 911–914, 924 Hazen Paper Co. v. Biggins, 949, 965 Hazen v. Strong, 336 Hebel v. School District R-1, Jefferson County, 1085 Hedges v. Musco, 485
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Hedges v. Swan Lake and Salmon Prairie School District No. 73, 758 Hedrich v. Board of Regents of University of Wisconsin System, 963 Heffington v. Jackson, 334 Helena Elementary School District No. 1 v. State, 173, 1089 Helvering v. Davis, 84, 115 Hemry ex rel. Hemry v. School Board of Colorado Springs, 442 Hendricks v. Southfield Public Schools, 739 Henson v. Dunde, 933, 964 Herald v. Board of Education, 1108 Herdahl v. Pontotoc County School District, 256 Hering v. State Board of Education, 282 Hess v. Dewey, 1088 Hess v. Indiana, 430 Hess v. Mullaney, 1088 Hesse v. Board of Education of Township High School District No. 211, Cook County, Illinois, 840 Hett v. Ploetz, 691–693 Hewitt v. Board of Education, 1083–1085 Hickman v. Valley Local School District, 1000 Hill v. Bickers, 336 Hill v. Independent School District No. 25, 789 Hill v. Stone, 174 Hinds County School Dist. v. R.B., 515 Hines v. Davidowitz, 98 Hirabayashi v. United States, 1046 Hirman v. Rogers, 704, 706 Hobbs v. County of Moore, 25 Hobson v. Bailey, 558 Hobson v. Hansen, 405 Hoff v. Pure Oil Co., 720 Hoffman v. Board of Education of City of New York, 682 Hoffman v. Jannarone, 863 Hogenson v. Williams, 557 Hohe v. San Diego Unified School District, 676 Hoke County Board of Education v. State of North Carolina, 1089 Hole v. San Diego Unified School District, 682 Holland v. District of Columbia, 629 Holler v. Lowery, 654 Holler v. Rock Hill School District, 70 Holloman v. Harland, 272 Holmes v. Board of Trustees of School District Nos. 4, 801 Holmes v. Jennison, 116 Holt Civic Club v. City of Tuscaloosa, 174 Home Building and Loan Ass’n v. Blaisdell, 116 Home Telegraph and Telephone Co. v. Los Angeles, 759 Honig v. Doe, 572, 610–615, 628, 629, 630 Hooks v. Clark County School District, 336 Hoover v. Jordan, 719 Hopwood v. Texas, 963 Horne v. Flores, 399, 400 Horton v. Goose Creek Independent School District, 467, 495 Horton v. Jefferson City–DuBois Area Vocational Technical School, 807 Horton v. Meskill, 397, 1088 Hortonville Joint School District No. 1 v. Hortonville Education Association, 140–142, 174, 887, 898
Hovet v. Hebron Public School District, 168–170 Howard County Board of Education v. Cheyne, 738 Howard v. Colonial School District, 557 Howard v. West Baton Rouge Parish School Board, 790 Howell Education Association MEA/NEA v. Howell Board of Education, 170 Hoyem v. Manhattan Beach City School District, 681 Hudson v. Bloomfield Hills Public School, 595 Hughes v. Bizzell, 693 Hughes v. Outlaw, 70 Hunt v. Sycamore Community School District Board of Education, 745, 760 Hunt v. University of Minnesota, 704 Hunter v. Board of Education of Montgomery County, 682 Hunterdon Central High School Board of Education v. Hunterdon Central High School Teachers’ Ass’n., 864 Hurtado v. California, 556, 557 Hutchinson v. Proxmire, 720 Hutchison v. Toews, 666–668 Hutton v. State, 557 Hysong v. School District of Gallitzin Borough, 864
I Illinois ex rel. McCollum v. Board of Education of School District No. 71, Champaign County, Illinois, 234–236 Imbler v. Pachtman, 750 Immediato v. Rye Neck School District, 345–350 In re School District of Pittsburgh, 1099–1100 In the Petition to Transfer Territory from High School District No. 6, Lame Deer, Rosebud County, Montana, to High School District No. 1, Hardin, Big Horn County v. Lame Deer High School District, 135–138 Indiana ex rel. Anderson v. Brand, 116, 802, 807 Ingraham v. Wright, 105, 117, 510, 513–516, 556, 557 Inhabitants of Warren v. Inhabitants of Thomaston, 302, 335 International Brotherhood of Teamsters v. Shapiro, 972 International Brotherhood of Teamsters v. United States, 911 Irvin v. Gregory, 75 Irving Independent School District v. Tatro, 604, 605–607, 608, 629 Isley v. School District No. 2 of Maricopa County, 1080 Isquith v. Levitt, 404
J J. D. v. Commonwealth, 525 J.M. v. Webster County Board of Education, 558 J.P. v. West Clark Community Schools, 720 Jackson Education Ass’n. v. Board of Education, 922 Jackson v. Benson, 231, 280 Jackson v. Birmingham Board of Education, 927–930, 964 Jackson v. Franklin County School Board, 630 Jackson v. Waco Independent School District, 70 Jacksonville Branch, NAACP v. Duval County School Board, 1028 Jacob v. School Board of Lee County, 398 Jacobson v. Commonwealth of Massachusetts, 325, 329, 336
Copyright 2010 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.
Table of Cases Jager v. Douglas County School District, 281 Jarrett v. Goodall, 173 Jasperson v. Anoka-Hennepin Ind. School District, No. 11, 682 Jee v. New York Post Co., Inc., 706 Jefferson County School District No. 509-J v. FDAB, 790 Jefferson School Township v. Jefferson Township School Building Co, 1085 Jensen v. Reeves, 720 Jerideau v. Huntington Union Free School District, 666 Jerkins v. Anderson, 648–652 Jersey v. T.L.O., 463 Jewett v. School District No. 25 in Fremont County, 1089 Jibson v. Michigan Education Ass’n, 993 Johanson v. Board of Education of Lincoln County School District No. 1, 884 John Ellis “Jeb” Bush v. Holmes, 42–45 John T. v. Marion Independent School District, 630 Johnson v. Board of Junior College No. 508, 705 Johnson v. Burmaster, 127–130 Johnson v. Charles City Community Schools Board of Education, 310 Johnson v. City of Boston, 647 Johnson v. Glick, 558 Johnson v. Independent School District No. 4 of Bixby, 575, 628 Johnson v. Prince William County School Board, 310 Johnson v. Robbinsdale Independent School District No. 281, 702–707 Johnson v. Sampson, 680 Johnson v. School District of Millard, 682 Johnson v. Southwestern Newspaper Corp., 707 Johnson v. St. Paul City Railway Co., 681 Johnson v. Transportation Agency, Santa Clara County, 963 Johnston v. Corinthian Television Corp., 705 Joint Anti-Fascist Refugee Committee v. McGrath, 558, 898 Jokinen v. Allen, 174 Jones v. Board of Education of Laurel County, 778 Jones v. Clear Creek Independent School District, 239, 281 Jones v. Kansas City, 759 Jones v. Latexo Independent School District, 467, 495 Jones v. Opelika, 270, 282 Jones v. School District, 17 Jones v. West Virginia State Board of Education, 321–323 Jones v. Wyoming, 331 Joseph v. New York City Board of Education, 924 Junior-Spence v. Keenan, 707 Jurva v. Attorney General of State of Michigan, 984, 999
K K.R. v. Anderson Community School Corp., 629 Kadrmas v. Dickinson Public Schools, 113, 117 Kansas Board of Regents v. Pittsburgh State University Chapter of Kansas–National Education Ass’n, 982 Kansas City Star Co. v. Fulson, 175 Kapiloff v. Dunn, 706 Karnstein v. Pewaukee School Board, 398 Kathryn Nurre (student) v. Carol Whitehead (Superintendent of Schools), 255 Katzman v. Cumberland Valley School District, 405 KDM v. Reedsport School District, 602, 629
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Keeper v. State, 124 Kees v. Smith, 1085, 1089 Kelley v. Bonney, 705 Kelley v. City of Tulsa, 790 Kelly v. Dickson County School District, 404 Kelo v. City of New London, Conn., 1111 Kenai Peninsula Borough School District v. Kenai Peninsula Education Association, 980–981, 1000 Kendrick v. Jefferson County Board of Education, 965 Kennedy v. County Board of Education, 71, 75 Kent v. School, 161 Keough v. Tate County Board of Education, 526 Kerin v. Board of Education, Lamar School District, 798 Kevin G. ex rel. Robert G. v. Cranston School Committee, 595 Keyes v. School District No. 1, Denver, 1017–1019, 1046 Keyes v. School District No. 1, Denver, 1046 Keyishian v. Board of Regents, 383, 404, 810, 814, 819, 862 Khowry v. Saik, 682 Kibbe v. City of Springfield, 759 Kiddie Korner Day Schools, Inc. v. Charlotte–McKlenbury Bd. of Education, 70 Kilpatrick v. Wright, 807 Kimel v. Florida Board of Regents, 101, 116, 948, 958, 965 King v. Kartanson, 647 King v. Lake, 719 King v. Saddleback Junior College District, 448 Kinsella v. Board of Education, 806 Kinsey v. Salado Independent School District, 822 Kirkland v. Greene County Board of Education, 512, 558 Kirkland v. Northside Independent School District, 816, 863 Kissinger v. School District No. 49 of Clay County, 1081 Kitsap County Transportation Co. v. Harvey, 681 Kitzmiller v. Dover Area School District, 381, 404 Klein Independent School District v. Mattox, 170 Knapp v. Whitaker, 863 Knisley v. Pike County Joint Vocational School District, 469, 495 Knodrad v. Bismarck Park District, 673, 682 Knowlton v. Baumhover, 225, 242, 278, 280, 281 Knox County Board of Education v. Fultz, 174 Knox County Education Association v. Knox County Board of Education, 851–856, 863 Knox v. O’Brien, 334, 335 Kobza v. Kutac, 734 Koehn v. Board of Education of City of Newton, 759 Kolcum v. Board of Education, 999 Kolender v. Lawson, 898 Korunka v. Department of Children and Family Services, 553 Kosydar v. Wolman, 278 Kotterman v. Killian, 201 Kramer v. Union Free School District No. 15, 113, 157, 174 Kristin Nat., Inc. v. Board of Education of City of Marietta, 71 Kryston v. Board of Education, East Ramapo Central School District, 720 Kuehn v. Reston School District No. 403, 495 Kuhlmeier v. Hazelwood School District, 404
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Kuhns v. Brugger, 681 Kusper v. Pontikes, 1000
L L.P.M. v. School Board of Seminole County, 174 Laba v. Board of Education of Newark, 174 Lachman v. Illinois State Board of Education, 595, 629 Lake View School District No. 25 of Phillips County v. Huckabee, 1066, 1088 Lamb v. Danville School Board, 159 Lamb v. Panhandle Community School District No. 2, 525 Lamb’s Chapel v. Center Moriches Union Free School District, 265, 278, 281, 432–434, 447 Lamont Independent School District v. Swanson, 759 Lamphere Schools v. Lamphere Federation of Teachers, 977 Lampkin v. District of Columbia, 335 Lander v. Seaver, 499, 556 Landeros v. Flood, 550, 559 Landgraf v. USI Film Products, 924 Landwehr v. Regents of University of Colorado, 335 Laneheart v. Orleans Parish School Board, 647 Larrison v. John Marshall High School, 682 Larson v. Portage Township School Corporation, 946 Larson v. Valente, 202, 278 Latham v. Board of Education of City of Chicago, 25 Latour v. Riverside Beaver School District, 429 Lau v. Nichols, 398, 399–401, 405 Lauren W. v. DeFlaminis, 601, 604 Lautermilch v. Findlay City Schools, 873 LaVine v. Blaine, 425 Lawrence County v. Lead-Deadwood School District No. 40-1, 98 Lawrence v. Lorain County Community College, 682 Lawrence v. Texas, 863 Lazarus v. Morris, 1103 Leahy v. School Board of Hernando County, 672 Leakey v. Georgia Real Estate Commission, 884 Leandro v. State, 1089, 1060 Ledbetter v. Good-year Tire & Rubber Co., 947, 964 Lee v. Macon County Board of Education, 1046 Lee v. Mitchell, 769 Lee v. Pine Bluff School District, 751–753 Lee v. Weisman, 202, 218, 239, 249–251, 252, 278, 279, 280, 281, Lee v. York County School Division, 831–835 Leebaert v. Harrington, 373–375 Leech v. State, 174 Leeper v. State, 74, 173 Lehmuth v. Long Beach Unified School District, 681 Lehnert v. Ferris Faculty Association, 986, 1000 Lehto v. Board of Education of the Caesar Rodney School District, 794 Lemelle v. State ex rel. Board of Secondary and Elementary Education, 682 Lemon v. Kurtzman, 193–197, 199, 206, 226, 244, 247, 259, 280, 281, 434, 857, 864, 942, 964 Lentz v. Morris, 726–727 Leoles v. Landers, 282 LePage v. Wyoming, 331 Leslie v. Oxford Area School District, 797 Lewis v. Harrison School District No. 1, 822
Lewis v. Spagnolo, 1078 Lewis v. Spaulding, 236 Lewis v. St. Bernard Parish School Board, 681 Libby, McNeill, and Libby v. Longshoremen Local 142, 999 Liles v. Smith, 1105, 1111 Lindahl v. Independent School District No. 306, 157 Linhart v. Lawson, 758 Linwood v. Board of Education, 524 Livingston v. Davis, 1092 Livoisi v. Hicksville Union-Free School District, 682 Locke v. Davey, 211, 218, 224, 280, 282, 987, 1000 Lockett v. Board of Education of Muscogee County School District, 1028 Londonderry School District v. State of New Hampshire, 1061, 1089 Long v. Eastfield College, 964 Longwood Center School District v. Springs Union Free School District, 335 Los Angeles City and County Employees Union v. Los Angeles City Board of Education, 999 Lott v. Strang, 681 Louisville Trust Co. v. Nutting, 759 Louisville, New Orleans and Texas Railway Co. v. Mississippi, 1045 Louviere v. Mobil County Board of Education, 758 Lovejoy v. School District No. 46, Sedgwick County, 1104–1105 Loving v. Virginia, 112, 557 Lowery v. Euverard, 508 Lujan v. Colorado State Board of Education, 173 Luper v. Black Dispatch Publishing Co., 705 Luques v. Luques, 334 Luthens v. Bair, 201 Lyerley v. Manila School District 15, 174 Lynch v. Donnelly, 202, 257, 278, 280, 281, 847 Lysicki v. Montour School District, 1105
M M. C. ex rel. J. C. v. Central Regional School, 584, 615, 630, Maack v. School District of Lincoln, 331 MacQueen v. City Commission of City of Port Huron, 173 Maddox v. City of New York, 672 Maddox v. State, 174 Mahoney v. Adirondack, 702 Main v. Claremont Unified School District, 174 Major v. Cayce, 70 Major v. Nederland Independent School District, 301 Malone v. Carrico, 719 Maltz v. Board of Education of New York City, 682 Mancusi v. DeForte, 863 Manigault v. Springs, 807 Mapp v. Ohio, 460, 461, 494 Marbury v. Madison, 534 Marbury v. Madison, 1, 5, 8, 12, 25 Marchioni v. Board of Education of the City of Chicago, 719 Marcy v. Oshkosh, 70 Marion and McPherson Railway Co. v. Alexander, 25, 1049–1052 Marrs v. Matthews, 803 Marsh v. Chambers, 201, 217, 278, 280
Copyright 2010 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.
Table of Cases Marshall v. Alabama High School Athletic Ass’n, 174 Marshall v. Cortland Enlarged City School District, 647 Marshall v. Jerrico, Inc., 888 Marshall v. School District, 71 Martin v. Hunter’s Lessee, 115 Martinez v. Bynum, 297, 301–303, 304, 335, Martinez v. Cui, 750 Martinez v. School Board of Hillsborough County, 621–623 Massachusetts Board of Retirement v. Murgia, 965 Matawan Regional Teachers Ass’n v. Matawan-Aberdeen Regional School District Board of Education, 160, 161 Mathews v. Board of Education of City of Chicago, 1051 Mathews v. Eldridge, 388, 405, 517, 558, 880, 881, 897, 898 Mathis v. Gordy, 75 Matson v. Kivimski, 759 Matthews v. Quinton, 224, 280 Maurice River Board of Education v. Maurice River Township Teachers Ass’n, 159 Mavis v. Sobol, 591, 629 Maxey v. McDowell County Board of Education, 806 May v. Evansville-Vanderburgh School Corp, 281 Mayer v. Chicago, 557 Mayer v. Monroe County Community School Corporation, 835–837 Mayor v. Miln, 124 McAuliffe v. Mayor of New Bedford, 819, 862 McCarthney v. Griffin-Spalding County Board of Education, 964 McCarthy v. Boozman, 331 McCarthy v. Philadelphia Civil Service Commission, 806 McCemas v. Board of Education of Fayette County, 175 McClelland v. Paris Public Schools, 767 McCloskey v. School District, 769 McCollum v. Board of Education, 236, 404 McCoy v. Thompson, 782 McCreary County, Kentucky v. American Civil Liberties Union, 245 McCulloch v. Maryland, 91, 116, McCullough v. Lohn, 873 McCurry v. Tesch, 335 McCutcheon v. Moran, 705 McDaniel v. Thomas, 1088 McDonald v. Santa Fe Trail Transportation Co., 963 McDonald v. State, 550, 559 McDonnell Douglas Corp. v. Green, 906, 949, 963, 964, 965 McDonnell v. Brozo, 681 McDuffy v. Secretary of the Executive Office of Education, 31–32, 74 McGee v. Board of Education, 672 McGee v. South Pemiscot School District R-V., 840 McGilvra v. Seattle School District No. 1, 126–127, 173 McGowan v. Maryland, 909 McGowen v. Prentice, 690 McGreevy v. Stroup, 750, 822 McInnis v. Ogilvie, 1088 McInnis v. Shapiro, 1053, 1088 McKinney v. O’Conner, 157 McLain v. Phelps, 74 McLaughlin v. Holt Public School Board of Education, 595
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McLaurin v. Oklahoma State Regents for Higher Education, 1008, 1045 McLean v. Arkansas Board of Education, 381, 404, 405 McLeod v. Grant County School District No. 128, 646 McQueen v. Beecher Community Schools, 753, 759 McQueen v. Fayette County School Corp, 692 Medeiros v. Kiyosaki, 404 Medeiros v. Sitrin, 643–648 Meek v. Pittenger, 201 Melvindale–Northern Allen Park Federation of Teachers, Local 1051 v. Melvindale–Northern Allen Park Public Schools, 976 Memorial Hospital v. Maricopa County, 766 Meredith v. Jefferson County Board of Education, 1046 Meritor Savings Bank, FSB v. Vinson, 933, 964 Mersey Trustees v. Gibbs, 758 Messina v. Burden, 726 Metropolitan Government v. Tennessee Department of Education, 630 Metzger v. Osbeck, 512, 557, 558 Meyer v. Board of Education, 681 Meyer v. Naperville Manner, Inc., 676 Meyer v. Nebraska, 74, 106, 117, 289, 290, 295, 311, 335, 340, 343–345, 348, 355, 404, 501, 502, 556, 557, 844, 863, 867, 871, 897 Michael H. v. Gerald D., 112 Michigan Central Railroad Co. v. Hasseneyer, 681 Michigan ex. rel. Kies v. Lowry, 121 Miles v. Denver Public Schools, 822, 862 Milkovich v. Lorain Journal Co., 698–701 Miller v. California, 412 Miller v. Korns, 1068 Miller v. Skumanick, 448 Milliken v. Bradley, 1021–1023, 1026, 1038, 1046, 1088 Mills v. Board of Education of District of Columbia, 563–567, 627, 629 Minersville School District v. Gobitis, 270, 272, 282 Minneapolis Federation of Teachers Local 59, AFLCIO v. Obermeyer, 974 Minnesota State Board for Community Colleges v. Knight, 984 Minton v. St. Bernard Parish School Board, 760 Mississippi Employment Security Commission v. McGlothin, 864 Mississippi University for Women v. Hogan, 904, 963 Mississippi v. Gordy, 71 Missouri ex rel. Gaines v. Canada, 1005, 1045 Missouri v. Fiske, 116 Missouri v. Jenkins (Jenkins I), 117, 1033, 1046 Mitchell v. Board of Trustees of Pickens County School District A, 964 Mitchell v. Forsyth, 759 Mitchell v. Helms, 203, 207–211, 278, 279, 280, 281, 386, MM ex rel. DM v. School District of Greenville County, 628 Mogle v. Sevier County School District, 767 Mohammed v. School District of Philadelphia, 682, 759 Molitor v. Kaneland Community Unit District No. 302, 116, 758 Monell v. Department of Social Services of City of New York, 743, 759, 760 Monroe v. Pape, 421, 557, 743, 759
Copyright 2010 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.
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Table of Cases
Monsanto Chemical Co. v. Chemical Workers Local 12, 999 Montauk Bus Co., Inc. v. Utica City School District, 965 Monteiro v. Tempe Union High School District, 365 Montenegro-Riehm Music Co. v. Board of Education of Louisville, 160 Montgomery v. Carr, 153 Montgomery v. Maryland, 965 Montoy v. State of Kansas, 1059, 1066, 1089 Moonan v. Clark Wellpoint Corporation, 759 Mooney v. Holohan, 889 Moore v. Board of Education, 173 Moore v. City of East Cleveland, 112 Moore v. Fennville Public Schools Board of Education, 165 Moore v. Greensburg High School, 759 Moore v. Monroe, 242 Moore v. Willis Independent School District, 511, 557 Mora Federation of Teachers, Local 1802 v. Independent School District No. 332, 979 Moran v. School District No. 7, 174 Morning Call v. Board of School Directors, 174 Morris v. Clarksville-Montgomery County Consolidated Board of Education, 799 Morris v. Douglas County School District, 681 Morris v. Morris, 334 Morris v. Vandiver, 71 Morrison v. Mobile County Board of Education, 719 Morrison v. State Board of Education, 334, 789, 798, 807, 863 Morrow v. Los Angeles Unified School District, 691 Morse v. Frederick, 414, 417–421, 456 Mosaica Academy Charter School v. Commonwealth Department of Education, 63 Moseley v. Welch, 173 Moses v. Bayport Bluepoint Union Free School District, 331 Mosier v. Barren County Board of Health, 336 Mosley v. Portland School District No. 1J, 729–730 Moss v. Stockard, 707 Mower v. The Inhabitants of Leicester, 722 Mozert v. Hawkins County Board of Education, 365–369 Mt. Healthy City School District Board of Education v. Doyle, 759, 760, 800, 836, 837–840, 863 Mueller v. Allen, 198, 199–201, 202, 217, 278, 280, 281 Muir v. Alabama Educational Television Commission, 361 Muller ex rel. Muller v. Committee on Special Education of East Islip Free Union School District, 584, 629 Mullins v. Board of Education of Etowah County, 1096–1098 Munson v. Board of Education, 681 Murdock v. Mingus Union High School District, 876 Murphy v. Bajjani, 682 Murphy v. State of Arkansas, 318–320, 335 Murphy v. Steeplechase Amusement Co., 672 Murray v. Chicago Youth Center, 647 Murray v. Curlett, 281 Murray v. Montrose County School Dist., 596 Muskopf v. Corning Hospital District, 758 Muskrat v. United States, 25 Myers v. Loudoun County Public Schools, 272
N N. B. and C. B. v. Hellgate Elementary School District, 629 N.A.A.C.P. v. Alabama ex rel. Patterson, 557, 969, 1000
Nagy v. Evansville-Vanderburgh School Corporation, 71, 1073 Narin v. Lower Merion School District, 965 National Education Ass’n v. South Bend Community School Corp., 976 National Law Center on Homelessness and Poverty v. New York, 335 National League of Cities v. Usery, 91, 116 National Mutual Ins. Co. v. Tidewater Transfer Co., 871 National Treasury Employees Union v. Von Raab, 849, 863 Natke v. North Branch Area School District, 508 NEA v. Unified School District No. 259, 999 Neal v. Fulton County Board of Education, 512, 557, 681 Neal v. Shields, Inc., 759 Near v. Minnesota, 117, 862 Neill v. Cook, 124 Nelson v. Moline School District No. 40, 442 Nevada v. Hall, 115 New Jersey v. 419 New Jersey v. Biancamano, 524 New Jersey v. T. L. O., 117, 419, 469–474, 494, 495, 499, 556, 845, 863 New York Charter Schools Ass’n, Inc. v. DeNapoli, 74 New York Times Co. v. Sullivan, 435, 696, 700, 703, 704, 705, 706, 719, 863 Newburg Area Council, Inc. v. Board of Education, 1046 Newburg Area Council, Inc. v. Gordon, 1046 Newdow v. U.S. Congress, 282 Newsome v. Batavia Local School District, 525, 526 Nicholas B. v. School Committee, 557 Nichols v. United States, 758 Nichols v. University of Southern Mississippi, 879 Nodar v. Galbreath, 705, 720 Norman v. Ogallala Public School District, 654 North Haven Board of Education v. Bell, 926, 930–933, 964 Northvale Board of Education v. Northvale Education Association, 976 Norton v. Board of Education, 70 Norwalk Teachers Association v. Board of Education of City of Norwalk, 970–973 Norwin School District v. Cortazzo, 758 Nottingham v. Akron Board of Education, 681 Noxubee County v. Long, 161 Null v. Board of Education of County of Jackson, 335 Null v. Board of Education of Jackson, 336 Nunez by Nunez v. City of San Diego, 292 Nunez v. Simms, 873 Nylander v. Oregon, 647
O Oakland Unified School District of Alameda County v. Olicker, 782 Odomes v. Nucare, Inc., 964 Ogden v. Saunders, 807 Ohio Ass’n of Public School Employees, AFSCME v. Lakewood City School District Board of Education, 884 Ohio v. Robinette, 494 Ohman v. Board of Education of City of New York, 681 Oleske v. Hilliard City School District Board of Education, 798
Copyright 2010 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.
Table of Cases Oregon v. Hass, 25 Oregon v. Smith, 316 Orozco ex rel. Arroyo v. Sobol, 301 Ortbals v. Special School District, 807 Osborne v. Montgomery, 681 Osius v. City of St. Clair Shores, 173 Otten v. Schutt, 692 Ottinger v. Ferrell, 719 Otto v. Pennsylvania State Education Association—NEA, 988, 1000 Owasso Independent School District v. Falvo, 710, 711–717, 720 Owens v. Colorado Congress of Parents, Teachers and Students, 131–133, 173 O’Conner v. Francis, 769 O’Connor v. Hendrick, 864 O’Connor v. Ortega, 863
P P. v. Newington Board of Education, 595 P. v. Riles, 405 P.B. v. Koch, 512, 558 Paine v. Board of Regents of University of Texas System, 524 Palella v. Ulmer, 655 Palmer v. Bennington School District, 707 Palmer v. Board of Education of the City of Chicago, 856, 864 Papason v. Allain, 113, 115, 117, 557 Parate v. Isibor, 862 Parents Involved in Community Schools v. Seattle School District No. 1, et al. and Meredith v. Jefferson County Board of Education, et al., 963, 1036–1041 Parents v. Caruthersville School District, 71 Parham v. J. R., 897 Parker v. Hurley, 375–379 Parratt v. Taylor, 759 ParsippanyTroy Hills Education Assoc. v. Board of Education, 71 Pasadena City Board of Education v. Spangler, 1019 Passantino v. Board of Education of City of New York, 682 Paster v. Tussey, 281 Patterson v. Masem, 964 Paul v. Davis, 752 Pauley v. Kelley, 65 Pauley v. Kelly, 1057, 1088 Paulson v. Minidoka Country School District, 71, 75 Paulton v. Volkmann 164 Pawtucket School Committee v. Pawtucket Teachers Alliance, 981–984 Pederson v. South Williamsport Area School District, 1000 Pelletier v. Maine Principals Association, 336 Pembaur v. Cincinnati, 744, 759 Penn Harris Madison School Corporation v. Howard, 666 Pennhurst State School and Hospital v. Halderman, 86, 88, 115, 116, 617 Pennsylvania Association for Retarded Children v. Pennsylvania, 582 Pennsylvania Ass’n for Retarded Children v. Commonwealth, 627
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Pennsylvania Federation of Teachers v. School District of Philadelphia, 1105 Pennsylvania Interscholastic Athletic Association, Inc. v. Greater Johnstown School District, 303, 335 People ex rel. Community Unit School District No. 1 v. Decatur School District No. 61, 137 People ex rel. Fish v. Sandstrom, 282 People ex rel. Hopf v. Barger, 164 People ex rel. Latimer v. Board of Education of City of Chicago, 235 People ex rel. Lewis v. Graves, 235 People ex rel. McCollum v. Board of Education, 353 People ex rel. Smith, Co. Collector v. Wabash Railway Co., 1051 People ex rel. Taylor v. Camargo Community Consolidated School District No. 158, 1095 People v. Baltimore and Ohio Southwestern Railway Co., 1051 People v. Becker, 174 People v. Berger, 336 People v. Board of Education, 862 People v. Deatherage, 1095 People v. DeJorge, 336 People v. Draper, 173 People v. Dukes, 495 People v. Ekerold, 336 People v. Gorman, 798 People v. Johnson, 798 People v. Maxwell, 807 People v. McIlwain, 336 People v. Overton, 492 People v. Pierson, 334 People v. Pruit, 495 People v. Reinberg, 174 People v. William G., 494 Peres v. Oceanside Union Free School District, 879 Perry Education Association v. Perry Local Educators’ Association, 430, 994 Perry v. School District No. 81, 236 Perry v. Sindermann, 117, 557, 819, 838, 866, 873–876, 897 Peter W. v. San Francisco Unified School District, 682 Peters v. South Kitsap School District No. 402, 778 Peterson v. Baker, 512, 558 Peterson v. Independent School District, No. 811, 558 Petrowski v. Norwich Free Academy, 888 Pettit v. State Board of Education, 807 Phaneuf v. Fraikin, 488 Pheasant Grove City, Utah v. Summum, 245 Philadelphia Newspapers, Inc. v. Hepps, 700 Philbrook v. Ansonia Board of Education, 944 Pickering v. Board of Education, 811, 812, 813–817, 819, 830, 835, 838, 863, 874 Pierce v. Society of Sisters, 53, 74, 112, 117, 191, 287, 290, 293, 305, 307, 335, 502, 557, 844, 863 Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary, 293–295, 334, 335, 348, 557 Pike Township Educational Foundation, Inc. v. Rubenstein, 775 Pilditch v. Board of Education, 924 Pinsker v. Joint District No. 28J, 864 Pirschel v. Sorrell, 174
Copyright 2010 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.
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Table of Cases
Pittman v. Board of Education of Glen Cove, 404 Pittman v. Chicago Board of Education, 804 Planned Parenthood v. Casey, 112 Plessy v. Ferguson, 1001, 1002, 1004, 1007, 1008, 1045 Plyler v. Doe, 113, 115, 117, 174, 297–30, 302, 304, 334, 335 Pocahontas Community School District v. Levene, 807 Poe v. San Antonio Express-News Corp., 705 Polk v. Central Susquehanna Intermediate Unit 16, 575, 628 Pontiac School District v. Department of Education, 976 Pontiac School District v. Secretary of U.S. Department of Education, 116 Porter v. Ascension Parish School Board, 429 Pottgen v. Missouri State High School Activities Ass’n, 585 Potts v. Breen, 336 Pratt v. Independent School District No. 831, 354, 404 Pred v. Board of Public Instruction of Dade County, 897 Press, Inc. v. Verran, 707 Price v. New York City Board of Education, 447 Price v. Young, 398 Price Waterhouse v. Hopkins, 964, 965 Prier v. Horace Mann Insurance Co., 681 Prince v. Massachusetts, 186, 278, 287, 288–292, 309, 311, 329, 334, 335, 336, 502, 557 Printz v. United States, 116 Prohm v. Non-High School District No. 216, 1085 Pruessner v. Benton, 336 Pruett v. City of Rosedale, 723 Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, 116 Purzyski v. Town of Fairfield, 655 Pushkin v. Regents of the University of Colorado, 965
Q Quern v. Jordan, 116 Quimby v. School Dist. No. 21 of Pinal County, 149
R R. v. Roberts, 174 R.A.V. v. St. Paul, 429 R.D.L. v. State, 494 Racine Charter One v. Racine Unified School District, 63 Racine Unified School District v. Thompson, 524 Rado v. Board of Education of the Borough of Naugatuck, 889 Ragsdale v. Wolverine World Wide, Inc., 965 Railroad Co. v. Husen, 124 Ramirez v. Rogers, 719 Randolph County Board of Education v. Adams, 64–66, 71 Rankin v. McPherson, 822 Rankin v. School District No. 9, 759 Rankins v. Louisiana State Board of Elementary and Secondary Education, 392, 393 Rathbun v. State, 1109 Rathjen v. Reorganized School District R-11 of Shelby County, 1111 Ratner v. Loudoun County Public Schools, 527, 558 Rawlings v. Butler, 864 Ray v. School District of Desoto County, 630 Reaves v. Foster, 706
Redman v. Department of Education, 778 Reed v. A.W. Lawrence and Co., 964 Reed v. Reed, 903, 904, 963 Reed v. Rhea County, 759 Regan v. Taxation With Representation of Wash, 992 Regents of the University of California v. Bakke, 862, 963, 1045, 1046 Regents of the University of Michigan v. Ewing, 405, 558 Regents of University of California v. Bakke, 922, 963, 1046 Reid v. Covert, 862 Reno v. American Civil Liberties Union, 442, 447 Reno v. Bossier Parish School Board, 157 Requa v. Kent School District No. 415, 443 Rettig v. Kent City School District, 609 Reynolds v. Pierson, 680 Reynolds v. Sims, 174 Reynolds v. United States, 178, 189, 217, 230, 277, 280 Rhode Island Affiliate, American Civil Liberties Union, Inc. v. Bernasconi, 163–165 Rhodes v. Laurel Highlands School District, 807 Ricci v. DeStefano, 913, 914 Rice v. Commonwealth, 330, 335 Richards v. Raymond, 175 Richardson v. Braham, 556 Richardson v. North Carolina Department of Public Instruction Licensure Section, 767–769 Richardson v. Rankin County School District, 723–725 Richmond Newspapers, Inc. v. Lipscomb, 705 Ricker v. Board of Education of Millard County School District, 25 Riddick ex rel. Riddick v. School Board of City of Norfolk, 1046 Riddick v. School Bd. of City of Norfolk, 1026 Riddick v. School Board of City of Portsmouth, 681 Ridgecrest Charter School v. Sierra Sands Unified School Dist., 63 Ridgewood Board of Education v. N. E., 615, 630 Rivera v. East Otero School District R-1, 442 Rivera v. Houston Independent School District, 753 Rixmann v. Somerset Public Schools, 682 Roberson v. Oliver, 70, 71 Roberts v. City of Boston, 899, 1004, 1045 Roberts v. Van Buren Public Schools, 839 Roberts v. Wilson, 70 Robinson v. Cahill, 74, 1056, 1088 Robinson v. Dunn, 680 Rochin v. California, 889 Rodgers v. Magnet Cove Public Schools, 957 Rodiriecus v. Waukegan School District No. 60, 614, 615 Rodriguez v. San Antonio Independent School District, 1088 Roe v. Wade, 112, 557, 716, 844, 863 Rogers v. Gooding Public Joint School District No. 231, 558 Romer v. Evans, 963 Roncker v. Walter, 590, 629 Rose v. Board of Education, 759 Rose v. Council for Better Education, Inc., 38–42, 173, 1067, 1087, 1088, 1089 Rosenberger v. Rector and Visitors of the University of Virginia, 202, 245, 278 Rosenblatt v. Baer, 697, 719, 720
Copyright 2010 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.
Table of Cases Rosenfeld v. Montgomery County Public Schools, 965 Rosenow v. City of Estherville, 759 Ross v. Consumers Power Co., 759 Roth v. United States, 412 Rousselle v. Plaquemines Parish School Board, 405 Rubek v. Barnhart, 744, 759 Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 115 Runyon v. McCrary, 336 Russell v. The Men Dwelling in the County of Devon, 722 Russman v. Board of Education, 603 Russo v. Central School District No. 1, 864 Rutgers Council of American Ass’n of University Professors v. New Jersey Board of Higher Education, 982 Ruth Fisher Elementary School v. Buckeye Union High School District, 70 Ryan v. Sawyer, 71
S S-1 v. Turlington, 610, 630 S. A. v. Indiana, 524 S.G. as Guardian of A.G. v. Sayreville Board of Education, 429 Sacramento City School District v. Rachel H., 629 Saenz v. Roe, 113 Safford Unified School District No. 1 v. Redding, 494, 495 Safford Unified School District v. Redding, 464, 474–477, 494, 495 Sailors v. Board of Education of Kent County, 157 Saint Francis College v. Al-Khazraji, 963 Salazar v. Eastin, 71 Salek v. Passaic Collegiate School, 692 Salem Community School Corp. v. Easterly, 334 Samson v. O’Hara, 759 San Antonio Independent School District v. Rodriguez, 74, 107, 109–113, 115, 117, 280, 557, 963, 1088 San Benito Independent School District v. Farmers’ State Bank, 1078 Sanders v. Board of Education, 782 Sanderson v. St. Louis University, 964 Sandlin v. Johnson, 342–343 Santa Fe Independent School District v. Doe, 239, 251–258, 279, 281 Sauls v. Pierce County School District, 543–548 Savage v. Jones, 98 Sawaya v. Tucson High School District No. 1, 759 Saylor v. Board of Education, 512, 557 Scanlon v. Wedger, 682 Scarano by Scarano v. Town of Ela, 759 Schaffer v. Weast, 571 Schaffer v. Weast, 571, 580–585 Scheer v. Independent School District No. I-26 of Ottawa County, 776–778 Schenck v. United States, 340, 404 Schill v. Wisconsin Rapids School District, 170 Schinck v. Board of Education of Westwood Consolidated School Dist., 174 School Board of Nassau County v. Arline, 618, 630, 951, 965, 952–954 School Board of Osceola County v. UPC of Central Florida, 62
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School Board of Prince William County v. Malone, 630 School Board of the City of Richmond v. Parham, 999 School City of Elwood v. State ex rel. Griffin, 807 School Comm. of Burlington v. Department of Ed. of Mass., 583, 599 School Committee of New Bedford v. Commissioner of Education, 138 School Committee of Town of Burlington v. Department of Education, Massachusetts, 596, 629 School District No. 1, Multnomah County v. Bruck, 173 School District No. 12, Phillips County v. Hughes, 174 School District No. 25 of Woods County v. Hodge, 1088 School District No. 3 of Town of Adams v. Callahan, 174 School District No. 6 in Chase County v. Robb, 1089, 1109 School District No. 8 of Sherman County v. State Board of Education, 137 School District No. 8, Pinal County v. Superior Court of Pinal County, 778, 806 School District No. 89 v. Dowell, 1025–1028 School District of Abington Township v. Schempp and Murray v. Curlett, 240–243, 281, 404 School District of Cambria Township v. Cambria Co. Legion Recreation Ass’n, 1051 School District of City of York v. Lincoln-Edison Charter School, 62 School District of Harrisburg v. Pennsylvania Interscholastic Ass’n, 174 School District of Pittsburgh v. Commonwealth Department of Education, 190 School District of Pontiac v. Spellings, 116 School District of the City of Grand Rapids v. Ball, 198, 202, 278, 279 School District of the City of Pontiac v. Duncan, 116 School District of the City of Pontiac v. Secretary of the United States Department of Education, 115 Schuldt ex rel. Schuldt v. Mankato Independent School District No. 77, 596 Schumacher v. Lisbon School Board, 164 Schutes v. Eberly, 1088 Schware v. Board of Bar Examiners of New Mexico, 885 Schwing v. McClure, 130 Scobey School District v. Radaovich, 801 Scott County Board of Education v. Pepper, 1109 Scott v. Commonwealth, 1089 Scott v. Greenville Pharmacy, 681 Scott v. News-Herald, 706 Scott v. Pacific W. Mountain Resort, 676 Scott v. School Board of Alachua County, 421–424 Scown v. Czarnecki, 74 Seal v. Morgan, 558 Sears v. Ryder Truck Rental, 937 Seattle School Dist. No. 1 v. State, 173 Seminole Tribe of Florida v. Florida, 115, 116, 117, 744, 759 Serna v. Portales Municipal Schools, 401 Serrano v. Priest, 59, 1054, 1088 Sewell v. Brookbank, 705 Shamberg v. State, 494 Shapiro v. Thompson, 557, 766 Sharon v. City of Newton, 673, 676, 682 Sharp v. Lindsey, 885 Shelby S. v. Conroe Independent School District, 584
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Sheldon v. School Committee of Hopedale, 862 Shelmadine v. City of Elkhart, 174 Shelton v. Tucker, 383 Shepheard v. Godwin, 96–98 Sheppard v. State, 336 Sherbourne v. School Board of Suwannee County, 792 Sheridan Road Baptist Church v. Department of Education, 335 Sherman v. Community Consolidated School District 21, 272 Sherman v. Mamaroneck Union Free School, 585 Sherman v. Township High School District 214, 248 Sherr v. North-port-East Northport Union Free School District, 330 Shofstall v. Hollins, 1088 Shohadaee v. Metropolitan Government of Nashville and Davidson County, 913 Shrick v. Thomas, 897 Shrout v. Black Clawson Co., 937 Shuman v. Penn Manor School District, 488 Shumway v. Albany County School District No. 1 Board of Education, 269, 281 Silano v. Sag Harbor Union Free School District Board of Education, 897 Simien v. City of San Antonio, 767 Sims v. Board of Trustees, Holly Springs, 806 Sioux City & Pacific R. Co. v. Stout, 759 Sioux City Community School District v. Iowa Department of Education, 144–146 Sisson v. Schultz, 334 Skinner v. Oklahoma, 112, 557, 894 Skinner v. Railway Labor Executives’ Association, 848, 863 Skoros v. City of New York, 258 Slaney v. Westwood Auto, Inc., 676 Sloan v. Lemon, 278 Slochower v. Board of Higher Education, 858, 864 Slocum v. Holton Board of Education, 405 Slotterback v. Interboro School District, 442 Smith v. Alameda County Social Services Agency, 682 Smith v. Allwright, 157 Smith v. Board of School Commissioners of Mobile County, 368 Smith v. City Board of Education of Birmingham, 1103 Smith v. Dorsey, 151–153 Smith v. East Baton Rouge Parish School Board, 965 Smith v. Half Hollow Hills Central School District, 682 Smith v. Helbraun, 719 Smith v. Miller, 526 Smith v. Ricci, 404 Smith v. Robinson, 607, 615, 630 Smith v. State, 25 Smuck v. Hobson, 405 Sneed v. Greensboro Board of Education, 71 Snyder v. Charlotte Public School District, 237 Snyder v. Massachusetts, 897 Snyder v. Town of Newton, 280 Solow v. General Motors Truck Co., 720 Sony Corp. of America v. Universal City Studios, Inc., 159 Soper v. Hoben, 759 Sorenson v. Perkins & Co., 127 Soroko v. Gosling, 630
Souderton Area School District v. Souderton Charter School Collaborative, 62 South Bend Community School Corp. v. Britton, 963 South Dakota v. Dole, 115, 617 South Dakota v. Elizabeth H. Dole, Secretary, U.S. Department of Transportation, 88 South Gibson School Board v. Sollman, 528–531 Southside Public Schools v. Hill, 822 Spangler v. Pasadena City Board of Education, 1026 Spanierman v. Hughes, 873 Spaulding v. Campbell County Board of Education, 1098 Spears v. Board of Education of Pike County, 964 Spears v. Honda, 225, 280 Spears v. Jefferson Parish School Board, 636–643 Special School District v. Bangs, 70 Speilberg v. Henrico County Public Schools, 629 Speiser v. Randall, 874, 898 Spencer v. Unified School District, No. 501, 558 Spevack v. Klein, 864 Spiewak v. Board of Education, 778 Springer v. Fairfax County School Board, 629 Springfield School District v. Department of Education, 190 Squires v. City of Augusta, 280 St. Amant v. Thompson, 704, 707 St. Louis–San Francisco Railway Co. v. McCurtain County, Oklahoma Excise Board, 1080 Stahl v. Cocalico School Dist., 759 Stanley v. Illinois, 112 Stansberry v. Argenbright, 807 Star Tribune v. Board of Education, 165 Startzel v. Pennsylvania Department of Education, 790 State Board of Dental Examiners v. Savell, 798 State Board of Education v. Drury, 885 State Board of Elementary and Secondary Education v. Ball, 153 State ex rel. Andrews v. Webber, 340–342 State ex rel. Bartmess v. Board of Trustees of School District No. 1, 174 State ex rel. Board of Education for the County of Grant v. Manchin, 65 State ex rel. Board of Education v. Thompson, 1085 State ex rel. Clark v. Haworth, 122–124 State ex rel. Clark v. Henderson, 43 State ex rel. Edmundson v. Board of Education, 160 State ex rel. Holcomb v. Armstrong, 330 State ex rel. Ohio Congress of Parents and Teachers v. State Board of Education, 75 State ex rel. Rogers v. Board of Education of Lewis County, 142 State ex rel. School District No. 56 v. Superior Court, 127 State ex rel. Winsor v. Mayor and Council, 126 State of Iowa v. Jones, 488–493 State of Michigan ex rel. Kies v. Lowry, 173 State of Pennsylvania v. Riley, 98 State Tax Commission v. Board of Education of Jefferson County, 173 State v. Anderson, 336 State v. Benny, 1052 State v. Biancamano, 493 State v. Board of Trustees of School Dist. No. 1, 405 State v. Bowman, 335
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Table of Cases State v. Davis, 282 State v. Defley, 706 State v. Drake, 493 State v. Drew, 326, 336 State v. Edgington, 335 State v. Garber, 335 State v. Hay, 336 State v. Hoyt, 336 State v. Ingram, 680 State v. Kinnear, 174 State v. Lewis, 1071 State v. Lowry, 336 State v. Merlin, 336 State v. Perricone, 334 State v. Peterman, 336 State v. Priest, 336 State v. Project Principle, Inc., 803–804 State v. Randall, 556 State v. Redman, 778 State v. Slattery, 494 State v. Smith, 282 State v. Stein, 494 State v. Turner, 336 State v. Van Lare, 164 State v. Whisner, 335 State v. Whittle, 158 State v. Will, 336 Station v. Travelers Insurance Co., 668 Steirer ex rel. Steirer v. Bethlehem Area School District, 349, 404 Stell v. Savannah-Chatham County Board of Education, 1046 Stephens v. Alabama State Tenure Commission, 806 Stevens v. Central School District No. 1, 682 Stevens v. Tillman, 707 Stiver v. State, 806 Stone v. Belgrade School District No. 44, 913 Stone v. Graham, 238, 243–246, 281 Stone v. Mississippi, 124, 807 Stout v. Grand Prairie Independent School District, 759 Stout v. Jefferson County Board of Education, 1046 Stowers v. Clinton Central School Corporation, 676 Straights and Gays for Equality v. Osseo Area Schools— District No. 279, 265 Strangway v. Allen, 334 Stroman v. Colleton County School District, 841–843 Stuart v. School District No. 1 of Village of Kalamazoo, 74 Stull v. Reber, 326, 336 Sturgis v. County of Allegan, 404 Sturgis v. Washington, 335 Suits v. Glover, 681 Sullivan v. Little Hunting Park, Inc., 928, 964 Sund v. City of Wichita Falls, 359 Sutton v. United Airlines, Inc., 955 Swann v. Charlotte-Mecklenburg Board of Education, 1014–1016, 1040, 1046 Swanson v. Guthrie Independent School District I-L, 315–318, 336 Swany v. San Ramon Valley Unified School District, 405 Sweatt v. Painter, 1008, 1045
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Sweezy v. New Hampshire, 352, 404, 862 Swenson-Davis v. Martel, 695
T T. G. v. Board of Education of Piscataway, 630 T. W. Phillips Gas and Oil Co. v. Lingenfelter, 1111 Tanari v. School Directors of District No. 502, 736–738 Tannahill v. Lockney Independent School District, 484 Tarka v. Cunningham, 715, 720 Tarka v. Franklin, 714 Tasby v. Estes, 524 Tatum v. Orleans Parish School Board, 689–691 Tax Deferred Annuities Corp. v. Cleveland Board of Education, 130 Taxman v. Board of Education of Township of Piscataway, 925, 963 Taylor v. Ledbetter, 759 Taylor v. Vermont Department of Education, 720 Teachers v. Hudson, 988 Tennessee Secondary School Athletic Association v. Brentwood Academy, 174 Tennessee Small School Systems v. McWherter, 1088 Tenney v. Brandhove, 750 The Bronx Household of Faith v. Board of Education of the City of New York, 269 Thompson R2 – J School District v. Luke P., 580 Thompson v. Wake County Board of Education, 806 Timmis v. Bennett, 695 Timothy W. v. Rochester School District, 573, 628 Tinker v. Des Moines Independent Community School District, 337, 356, 360, 404, 407, 409–412, 415, 417, 421, 423, 452, 503, 508, 557 Todd v. Rochester Community Schools, 404 Todd v. Rush County Schools, 484 Tomczik v. State Tenure Commission, 807 Toney v. Fairbanks North Star Borough School District, 787–790 Torcaso v. Watkins, 857, 864 Tot v. United States, 898 Trans World Airlines, Inc. v. Hardison, 857, 864, 941, 964 Trautvetter v. Quick, 21 938–941 Tri-County Educators’ Ass’n v. Tri-County Special Education Co-op No. 607, 983, 999 Trinity United Methodist Parish v. Board of Education of the City School District of the City of Newburgh, 269 Trotta v. Mobil Oil Corp., 938 Troxel v. Granville, 112 Truax v. Corrigan, 117 Truby v. Broadwater, 405 True v. Ladner, 705, 719, 720 Trustees of the Dartmouth College v. Woodward, 807 Trustees v. Brooks, 160 Trustees, Missoula County School District No. 1 v. Anderson, 806 Tucker v. Calloway County Board of Education, 601, 604 Tumey v. Ohio, 888 Turcotte v. Fell, 672 Turic v. Holland Hospitality, Inc., 963 Turner v. Bucher, 682 Turner v. Department of Employment Security, 898 Turner v. Fouche, 174
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Tuttle v. Arlington County School Board, 1046 Tyska By Tyska v. Board of Education of Township High School District 214, 124, 173
U U.S. and LULAC v. Texas, 399 U.S. v. Fuller, 681 U.S. v. Marshall, 494 U.S. v. Uscanga-Ramirez, 494 Ulichny v. Merton Comm. School District, 876 Underwood v. McVeigh, 897 Unified School District No. 1 v. Redding, 750 Unified School District No. 434, Osage County v. Hubbard, 807 United Federation of Postal Clerks v. Blount, 999 United States and LULAC v. Texas, 401 United States v. American Library Association, Inc., 447 United States v. Associated Press, 404 United States v. Board of Education of School District of Philadelphia, 864 United States v. Board of School Commissioners, 1023 United States v. Butler, 84, 115 United States v. Calandra, 494 United States v. Cors, 1103 United States v. Hinton, 494 United States v. Hyson, 494 United States v. Jefferson County Board of Education, 1046 United States v. Lopez, 91, 92–94, 115, 116 United States v. Montoya de Hernandez, 863 United States v. Orleans Parish School Board, 965 United States v. Overton, 1046 United States v. O’Brien, 450 United States v. Paradise, 1046 United States v. Place, 863 United States v. Powell, 898 United States v. Scotland Neck City Board of Education, 1046 United States v. South Carolina, 907–911 United States v. Sprague, 115 United States v. United Mine Workers, 974 United States v. Virginia Military Institute, 904, 963 United Steelworkers v. Warrior and Gulf Nav. Co., 875 United Teachers of New Orleans v. Orleans Parish School Board, 863 University of Alabama v. Garrett, 116 University of the Cumberlands v. Rev. Albert M. Pennybacker, et al, 280 Upshur v. Love, 965 Urban v. Jefferson County School Dist. R-1, 595, 628 Utah School Boards Association v. Utah State Board of Education, 61, 75
V Valentine v. Independent School District of Casey, 405 Vallelly v. Board of Park Commissioners, 1085 Valley National Bank of Phoenix v. Glover, 556 Van Allen v. McCleary, 720 Vance v. Bradley, 965 Vandevender v. Cassell, 71 Vanelli v. Reynolds School District No. 7, 889 Vanvactor v. State, 681
Vaughns v. Board of Education, 1046 Vernonia School District 47J v. Acton, 104, 117, 419, 465, 477–480, 481, 484, 495, 752, 849, 863 Victoria L. v. District School Board of Lee County, 630 Viemeister v. White, 325, 336 Village of Hoffman Estates v. Flipside, 898 Villanueva v. Carere, 62, 74 Vincent v. County Board of Education, 71, 75 Virgil v. School Board of Columbia County, Florida, 362–365, 404 Virginia v. Black, 429, 681 Vitek v. Jones, 882 Vlandis v. Kline, 892, 893, 898 Vogulkin v. State Board of Education, 806 Vukadinovich v. Board of School Trustees of North Newton School Corp., 823
W W. B. v. Matula, 957 Waddel v. Forney, 884, 897 Wagenblast v. Odessa School District No. 105-157-166J, 673–676, 682 Wall v. M. and R. Sheep Co., 1051 Wallace v. Jaffree, 178, 198, 217, 238, 246–249, 277, 278, 280, 281 Wallace v. Shoreham Hotel Corp., 681 Waller v. Georgetown Board of Education, 1089 Waller v. Moore ex rel. Quitman County School District, 153 Wallmuth v. Rapides Parish School Board, 659–664 Walsh v. West Coast Coal Mines, 682 Walter v. West Virginia Board of Education, 281 Walz v. Egg Harbor Township Board of Education, 256 Walz v. Tax Commission, 195, 196 Wangsness v. Watertown School District No. 14-4, 864, 964 Ward v. Flood, 67 Ward v. Scott, 173 Wards Cove Packing Co. v. Atonio, 907, 963 Wardwell v. Board of Education of the City School District of the City of Cincinnati, 766–767, 806 Wardwell v. School Board, 964 Ware v. Morgan Cty. School D. No. RE-3, 784 Ware v. Unified School District No. 492, Butler County, State of Kansas, 822 Warner ex rel. Warner v. Lawrence, 75 Warren Education Ass’n v. Adams, 977 Warren G. v. Cumberland County School District, 601, 604 Warwick School Committee v. Warwick Teachers’ Union, 979 Washington v. Davis, 389, 405, 908, 909, 963, 1046 Waterloo Education Assoc. v. Iowa Public Employment Relations Board, 983 Waters v. Churchill, 811, 862, 863 Watson v. City of Cambridge, 627 Watson v. Fort Worth Bank and Trust, 963 Watson v. North Panola School District, 873 Watts v. United States, 426 Weathers v. West Yuma County School Dist. R-J-1, 877 Webb v. McCullough, 557 Webster v. New Lenox School District No. 122, 836 Weems v. North Franklin School District, 807 Weiman v. Updegraff, 404
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Table of Cases Weinbaum v. City of Las Cruces, New Mexico, 245 Weinberger v. Salfi, 893, 898 Weintraub v. Board of Education, 828–829 Weissman v. Board of Education of Jefferson County School District No. R-1, 798, 807 Weixel v. Board of Education of the City of New York, 630 Welling v. Board of Education, 404 Wellner v. Minnesota State Junior College Board, 897 Wenger v. Canastota Central School District, 630 West Hartford Education Ass’n v. Dayson DeCourcy, 999 West v. Derby Unified School District No. 260, 423, 424 West Virginia Education Association v. Preston County Board of Education, 153 West Virginia State Board of Education v. Barnette, 104, 117, 270–272, 282, 290, 470, 557 Westchester Area School District v. Bruce C., 629 Western Air Lines, Inc. v. Criswell, 949, 965 Wethersfield Board of Education v. Connecticut State Board of Labor Relations, 999 Whalen v. Roe, 716 Wheeler v. Barrera, 115 White v. Ascension Parish School Board, 595 Whiteside v. Kay, 524 Whitney v. California, 407 Widmar v. Vincent, 258, 259, 281, 431, 434, 994, Wiemerslage v. Maine Township High School District, 207, 499–501 Wilbur v. Mahan, 863 Wilhelm v. Board of Education of City of New York, 682 Wilkinsburg v. School District, 1111 Williams ex rel. Williams v. Ellington, 468, 495 Williams v. Board of Trustees of Stanton Common School District, 231 Williams v. Cambridge Board of Education, 523 Williams v. Dallas Independent School District, 829–831 Williams v. Kearbey, 681 Williams v. McKenzie, 1106–1109 Williams v. School District No. 40 of Gila County, 792 Williams v. School District of Springfield R-12, 719 Williams v. Smith, 70 Willoughby v. Lehrbass, 681 Wilson v. Marana Unified School District No 6 of Pima County, 596 Wilson v. Sanford, 71 Wilson v. State Board of Education, 56–63, 74, 75 Winchester Creek Corporation v. New York City School Construction Authority, 1100 Winegar v. Des Moines Independent Community School District, 897 Winkelman v. Parma City School District, 618, 627 Winser v. School District for the City of Pointiac, 543 Winters v. Arizona Board of Education, 807 Wisconsin v. White, 310 Wisconsin v. Yoder, 117, 278, 287, 305 306–310, 334, 335, 336, 348 Wise v. Bossier Parish School Board, 790
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Wise v. Pea Ridge School District, 512, 558 Wisniewski v. Board of Education of the Weedsport Central School District, 443, 444–448 Withrow v. Larkin, 888 Witters v. Washington Department of Services for the Blind, 202, 206, 278, 279 Witters v. Washington Department of Services for the Blind; Zobrest v. Catalina Foothills School District; Agostini v. Felton, 279 Wofford V. Evans, 523 Wolman v. Walter, 190 Wood v. Battle Ground School District, 164 Wood v. Board of Supervisors of Halifax County, 174 Wood v. Omaha School District, 965 Wood v. School District, 161 Wood v. Strickland, 530, 743, 747–750, 759 Woodsmall v. Mt. Diablo Unified School District, 681 Woodson v. School District No. 28, 1111 Workman v. Mingo County Schools, 327–330 Wren v. Harrison, 759 Wright v. City of Jackson, 766 Wright v. Council of the City of Emporia, 1046 Wright v. DeWitt School District No. 1, 330 Wright v. School District, 280 Wygant v. Jackson Board of Education, 920, 922–925, 963 Wynn v. Board of Education of Vestavia Hills, 494
Y Yanero v. Davis, 725, 758 Yanzick v. School District No. 23, 807 Yaris v. Special School District of St. Louis, 628 Ye v. U.S., 759 Yick Wo v. Hopkins, 113 York v. Wahkiakum School District No. 200, 484 Young v. Commonwealth, 897 Young v. Linwood School District No. 17, 1111 Ysursa v. Pocatello Education Association, 988, 991–994, 1000
Z Zablocki v. Redhail, 112 Zager v. Chester Community Charter School, 166–168 Zamora v. Pomeroy, 466, 495 Zanders v. Louisiana State Board of Education, 558 Zellers v. Huff, 864 Zelman v. Simmons-Harris, 219, 220–223, 278, 279, 280, 281 Zivich v. Mentor Soccer Club, Inc., 676 Zobrest v. Catalina Foothills School District, 202, 278, 281, 570, 601, 628, 629 Zoll v. Eastern Allamakee Community School District, 799–801 Zorach v. Clauson, 236–237, 242, 281 Zucht v. King, 330 Zuni Public School District No. 89 v. Department of Education, 98 Zykan v. Warsaw Community School Corp., 379
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P R E FA C E
T
his Eighth Edition of American Public School Law builds on 42 years of earlier editions that have sought to capture the essence of the evergrowing field of public education law. When this book was first published in the late 1960s, most education law emanated from state court precedents based on common law and state statutes, with relatively few cases rendered by the federal courts. Since then, the nature and sources of education law has changed dramatically, with federal court decisions involving both the U.S. Constitution and federal statutes taking center stage in number and substantive relevance. Today, education law decisions rendered by federal courts fill many volumes, and state court decisions have continued to increase, resulting in an exponential rise in precedents. One will notice that this new edition embodies several structural changes that were not in earlier editions, including an extensive discussion in the first chapter of legal research techniques that will enable the instructor and the student to locate relevant law using the latest electronic information sources. In addition to the research methodology suggested in Chapter 1, each succeeding chapter cites basic sources for various legal topics that can be accessed via the Internet. Also, a new section has been added at the end of each chapter, Summation of the Case Law, which gives the student a nutshell synopsis, a recapitulation, of the most important points of law presented in the chapter. The legal precedents presented and discussed herein deal with the multitude of issues occurring
in a country that has developed an extraordinary reliance on public schools as a mechanism for social and economic justice and improvement. The desire to educate the nation’s masses to a high degree of competency has resulted in the emergence of public schools as the common ground of learning for all backgrounds and persuasions. An undertaking of the magnitude of public schools, involving such an amalgam of people, is naturally fertile ground for conflicting differences and perceptions. This book is about those conflicts that could not be resolved through the normal political processes and ultimately required judicial resolution. What the courts have said in enunciating legal precedents is valuable information for all those involved with the public schools. The public school system in America is large, diverse, and, unlike most European systems, federalistic. All fifty states have unique origins, and therefore perspectives that add strength and vitality to the whole. Because of the decentralized nature of our educational structure, it is often difficult to identify any single rule of law that prevails in all states. Even with the broad sweep of constitutional precedents that have developed under the hand of the U.S. Supreme Court, the law governing our schools is often difficult to accurately assess and summarize. Beyond constitutional law, which is more focused because the Supreme Court can give the final word, we have a large mass of law pertaining to contracts, property, torts, general administrative law, and so on, all bearing on the administration of the schools. Also, substantial variation may
xxxvii Copyright 2010 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.
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Preface
be found from state to state, not merely because of the differing statutory bases, but also because of widely varying perspectives and philosophies of education that the judges themselves may have in viewing particular school litigation; and, of course, the social contexts of the cases may have strong influences on the outcome of particular disputes. Therefore, the reader of this book should keep in mind that we, the authors, have had to select cases from among the hundreds of jurisdictions in this country that appear to best exemplify the prevailing view of the courts in the various areas of law. The precedents that we have identified may not neatly fit the numerous situations and conditions that can exist in all the local school districts across the nation. For this reason, the reader is well advised to carefully compare the precedents in the book with the rule of law in her or his own jurisdiction before drawing hard and fast conclusions. This book employs the “case” or “discussion” method for teaching the law. Over the years, this approach to instruction has been largely used in business schools and law schools and has been a very effective instructional methodology for immersing the student in the learning process. This approach to teaching enables the instructor to depart from merely lecturing or “telling” about the law and instead employs a Socratic method to facilitate classroom discussion. Using this technique, the instructor, assisted by the text, encourages classroom dialectic, invoking discussion to discover and expose the reasoning of the law. Here, the instructor can circumscribe the law for the students and then, by reviewing actual cases and engaging the student by questioning, probing, and challenging, bring forth the rules of law. The student is thereby able to relate a rule of law to a particular set of facts that will clarify or distinguish an educational dispute in question. By relating concrete factual situations to the law, students will be better able to recognize similar experiences when they encounter them as practicing teachers or school administrators. For the fledgling educator, the study of real cases may well substitute for actual experience and prevent costly on-the-job repetition. In some instances, a more comprehensive knowledge of both education and the law may prevent having to resort to the courts for redress. The case approach gives
graduate students the opportunity to study the law in a setting where the consequences of misjudgment are not actually visited upon their careers and professions. Learning by discussing and examining the experiences of others is, of course, not new; as early as 1570, Roger Ascham suggests in his dissertation, titled “The Schoolmaster,” that by conveying not only the rule of law but also the experiences of predecessor educators, the case method affords an efficient method for learning valuable lessons. learning teacheth more in one year than experience in twenty; and learning teacheth safely, when experience maketh more miserable than wise. He hasardeth sore that waxeth wise by experience. . . . It is costly wisdom that is brought by experience.
An effort is made herein to present an encompassing book, ranging across civil, criminal, and constitutional laws as they touch the student, teacher, and administrator. Several chapters in the book may be of primary interest to teachers who are directly concerned with such matters as curriculum, tenure, contracts, student rights, and collective bargaining. These aspects of the law are also essential information for the school administrator, though the administrator may also have a vital interest in the law of finance, property, desegregation, and intergovernmental relations. It is with cognizance of the needs of all educators that additional and separate chapters are included on various topics. Because of the profusion of litigation that has emanated from federal statutes in recent years, separate chapters are provided for issues concerning the education of persons with disabilities and employment discrimination. In total, the book represents an attempt to convey a fully comprehensive treatment of the law, regardless of whether it emerges from common law, statute, or constitutional law. This edition evidences the inexorable march of new precedents that continue to form the law of education. The evolution of the law gives new shape to the public schools that emerge from the social forces that prescribe and portend the direction of the law. Contained therein is a discernible pattern of the ebb and flow of student and teacher rights and freedoms that ultimately define the nature and context of the public schools. It would be redundant to discuss here all the text modifications from the earlier editions that
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Preface
reveal these changes, yet a few are particularly noteworthy. This edition reflects an apparent general pattern of a growing reticence of today’s increasingly conservative judiciary to enhance the expansion by earlier courts of rights and freedoms of students and teachers. One will notice a hesitancy on the part of courts to add new meaning to constitutional rights while expending increased energy on the interpretation of the extensive array of federal statutes that affect education policy. Also, as observed in the last edition, there appears to be a discernable tendency for the courts to revert to the logic of common-law precedents for their rationale. From this discussion, one can see the redefinition of students’ constitutional rights as the federal courts in the last decade appeared to grasp for rationale found in earlier common-law concepts to address constitutional law issues. For example, in freedom-of-the-press decisions applicable to student newspapers, the courts appear to have sought stability by relying on earlier common-law precedents. Additional precedents regarding students’ privacy against illegal search and seizure and drug testing, as well as the various applications of substantive and procedural due process, are viewed more conservatively, tending to limit student rights by reverting to older common-law reasoning. This edition also reflects the judicial response to an ever-widening influence of federal statutes in the governance of education. For example, this book devotes extensive attention to the considerations of the rights of children with disabilities as prescribed by Congress to the Individuals with Disabilities Education Act (IDEA) and No Child Left Behind (NCLB). The employment of teachers and its multifaceted ramifications is further addressed in this new edition. In this context, the book deals with the nature of the teacher-school board employment relationship as affected by the ever-widening litigation pursuant to Title VII of the Civil Rights Act. Moreover, the various Supreme Court decisions tending toward a dissection of freedom of speech in schools into public and private contexts has led to a plethora of new litigation, with the result of more narrowly circumscribing teachers’ rights of free speech. Also, this new edition elucidates the reversal of perspective of the Supreme Court on churchstate matters. As observed in the Seventh Edition,
xxxix
recent decisions of the present “conservativeactivist” Supreme Court marks a departure from historic legal precedents that constitutes a major shift toward diminishing the uniquely American “wall of separation” between church and state. The Court’s enfeebling of the Establishment Clause of the First Amendment prescribes a new doctrine that allows for expanded use of public tax dollars for parochial schools and the public funding of the so-called faith-based initiatives of churches. Further, this edition reveals that the courts are tending to be more restrained in their view of curricular and instructional matters, exhibiting a reemerging reluctance to intervene in school board decisions. This judicial deference to school boards concerning curricular matters suggests the possibility of newfound strength of school boards establishing and implementing school policy. Finally, developments in several other areas of the law have inspired the expansion of sections of the book, including discussions of the federal Supremacy Clause and No Child Left Behind (NCLB), sovereign powers of states, charter schools, vouchers, and the refinement of the legal definition of free public schools, as well as questions surrounding the equality of financial resources among local school districts. Expansion of law is found in sections of the book concerning federal civil rights statutes that prohibit racial, sexual, religious, and age discrimination in public school employment. Additional discussion is devoted to sexual harassment and Title IX issues, as indicated by prevailing precedents that affect students, teachers, and administrators. Sexual harassment, in its many shapes and forms, is revealed as an area of the law that is expanding very rapidly, and new precedents are continually creating new law. The authors are furthermore most appreciative of the able assistance of the fine staff at Wadsworth/Cengage. In particular we wish to acknowledge the attention given to this project by the editor, Mark Kerr, who worked with us in the overall conduct and direction of the project; Kara Kindstrom, for her creative marketing and sales initiatives; and Caitlin Cox, assistant editor, and Ashley Cronin, media editor, for helping develop the companion website to the text; and Genevieve Allen, editorial assistant, for her help
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xl
Preface
throughout the process. We also wish to acknowledge the production manager, Melena Fenn, for advancing the project with a high degree of professional efficiency; and the art director, Maria Epes. And very importantly, we would like to acknowledge the thoughtful and thorough assistance of Melissa Kelleher, development editor. Projects of this magnitude always require the unremitting dedication of a central figure who coordinates the entire endeavor from the authors’ side of the process. As with the Seventh Edition, Mrs. Shari Hall was the prime mover and essential player to whom the authors are profoundly grateful. The excellence of her managerial skills was readily apparent from the initiation to the completion of the project. In addition to her supervision responsibilities she bore much of the technical burden of the legal research, information retrieval, copyediting, verification of endnotes, and other essential details so critical throughout the many months of revision. Too, we would be remiss in not expressing our thanks to Kate Kemball and Nadia Geagea Pupa, who both played integral parts in the success of this entire undertaking. We also wish to acknowledge the continuing support of Karen Price, David Price, and the thoughtful commentary of Kane Alexander, a lawyer, whose grasp of the law was of great benefit. We are very much obliged to them for all their good services.
We must also extend thanks to those in the College of Education and College of Law at the University of Illinois, Urbana-Champaign, and the College of Education at Virginia Tech, who helped provide an agreeable study environment for this project. Finally, we wish to thank the following colleagues in academia who have used this book for their courses and have provided us with valuable suggestions for improving this new edition: Patrick C. Coggins, Stetson University, Deland, Florida; Robert J. Colon, Purdue University, Calumet; Lisa Driscoll, University of North Carolina, Charlotte; George Foldesy, Arkansas State University–Jonesboro; Mary Jane Guy, Winona State University, Wisconsin; Richard Moore, Trevecca Nazarene University, Nashville, Tennessee; Gary Schumacher, University of Houston–Clear Lake, Texas; David Thompson, University of Louisville; Lewis Wasserman, University of Texas, Arlington; and R. Craig Wood, University of Florida, Gainesville. In acknowledging those most helpful in the completion of this revision, we are, of course, more aware than ever of the unfailing support of our wives, Elizabeth and Nancy, who, with faithful understanding, have persevered with good humor and thoughtful encouragement. Kern Alexander, Urbana-Champaign, Illinois M. David Alexander, Blacksburg, Virginia
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1st Pass Pages
American Public School Law
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CHAPTER 1
The Legal System Definition of Law: [A] rule of civil conduct prescribed by the supreme power of a state (or nation), commanding what is right, and prohibiting what is wrong. —Blackstone The powers of the legislature are defined and limited; and that those limits are not mistaken, or forgotten, the Constitution is written. —Chief Justice John Marshall, Marbury v. Madison We must not expect a good constitution because those who make it are moral men. Rather it is because of a good constitution that we may expect a society composed of moral men. —Immanuel Kant
CHAPTER OUTLINE ■
INTRODUCTION
■
THE PURPOSE OF LAW
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THE NATURE OF PUBLIC SCHOOL LAW
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STARE DECISIS
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SOURCES OF LAW
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HOW TO READ A CASE
Constitutions
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CASE OR CONTROVERSY
Statutes
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THE AMERICAN COURT SYSTEM
Judicial Decisions (Case Law)
State Courts
Administrative Law
Federal Courts
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POLITICAL NEUTRALITY AND THE COURTS
■
PROCESS OF GOING TO COURT
■
POWERS AND FUNCTIONS OF COURTS
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FINDING THE LAW
Applying Principles
Citations
Interpreting Statutes
Sources of Legal Material
Determining Constitutionality
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2 ■
Chapter 1
The Legal System
Introduction
The law of the school includes all those areas of jurisprudence that bear on the operation of public elementary and secondary schools in the United States. School law, or education law, as a field of study is a generic term covering a wide range of legal subject matter including the basic fields of contracts, property, torts, constitutional law, and other areas of law that directly affect the educational and administrative processes of the educational system. Due to the breadth of the subject matter involved, it is necessary for the school law student to be versed in certain fundamental concepts of the American legal system and to be able to apply this knowledge to situations that daily affect school operation.
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The Nature of Public School Law
Because a public school is a governmental agency, its operation is circumscribed by precedents of public administrative law supplemented by those legal and historical traditions surrounding an educational organization that is state established, yet locally administered. In this setting, legal and educational structural issues that define the powers to operate, control, and manage the schools must be considered. In analyzing the American educational system, and comparing it to central state systems of education in foreign countries, one is struck by the diversity of authority under which the American public schools are governed. As a federal and not a national system, the U.S. government comprises a union of states united under one central government. The particular form of American federalism creates a unique educational system that is governed by laws of 50 states, with component parts amounting to several thousand local school district operating units. Through all of this organizational multiformity and, indeed, complexity runs the basis for justice on which the entire educational and legal systems are founded. The fundamental principles of legal control are those generally prescribed by our constitutional system, from which the basic organic law of the land emanates: the written constitutions of
the 50 states and the federal government. Constitutions at both levels of government are basic because the positive power to create public educational systems is assumed by state constitutions, and provisions of both the state and federal constitutions serve as restraints to protect the people from the unwarranted denial of basic constitutional rights and freedoms.
THE CONCEPT OF JUSTICE Justice embraces three elements. The first element has to do with one’s relations and dealings with other persons; it is ‘inter-subjective’ or interpersonal. There is a question of justice and injustice only where there is a plurality of individuals and some practical question concerning their situation and/or interactions vis-à-vis each other. The second element in the relevant concept of justice is that of duty, of what is owed (debitum) or due to another, and correspondingly of what that other person has a right to (viz. roughly) twhat is his ‘own’ or at least his ‘due’ by right. The third element in the relevant concept of justice can be called equality. . . . proportionality, or . . . equilibrium or balance. —John Finnis
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Sources of Law
The power of operation of the public educational system, therefore, originates with a constitutional delegation to the legislature to provide for a system of education. With legislative enactments forming the foundation for public school law, it then becomes the role of the courts to interpret the will of the legislature. The combination of constitutions, statutes, and judicial decisions (case law) and administrative law forms the legal structure on which the public schools are based.
SOURCES OF THE LAW 1. 2. 3. 4.
Constitutions (State and federal) Statutes (State and federal) Judicial Decisions (State and federal) Administrative Law (Agencies of government; federal, state and local)
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Sources of Law
CONSTITUTIONS A written constitution is a body of precepts that provides a framework of law within which orderly governmental processes can operate. An eminent English judge, Tom Bingham, in his book Rule of Law, noted the worldwide importance of the U.S. Constitution: The Constitution of the United States was a crucial staging-post in the history of the rule of law. . . . [T]he U.S. Constitution was groundbreaking in its enlightened attempt to create a strong and effective central government while at the same time preserving the autonomy of the individual states and . . . preserving the fundamental rights of the individual. . . .1
No one . . . would pay attention to a constitution if everyone thought it had been put together by a tribe of monkeys with quills. —Richard S. Kay The federal and state constitutions of this country are characterized by their provisions for securing fundamental liberty, property, and political rights. One of the basic principles embodied in a constitution is the provision for authorized modification of the document. Experience in human and governmental relations teaches that to be effective a constitution must be flexible and provide for systematic change processes. The U.S. Constitution expressly provides in Article V a process for proposing amendments by a two-thirds vote of each house of Congress or by a convention that shall be called by Congress upon application by two-thirds of the state legislatures. Amendments must be ratified by the legislatures of three-fourths of the states or by conventions in three-fourths of the states. [T]he purpose of a constitution is to lay down fixed rules that can affect human conduct and thereby keep government in good order. Constitutionalism implements the rule of law: It brings about predictability and security in the relations of individuals to the government by defining in advance the powers and limits of that government. —Larry Alexander
3
Another precept reflected in the state and federal constitutions of this country is the importance of a government of separated powers. Although all state constitutions do not expressly provide for a separation of all legislative, executive, and judicial departments, in actual practice, all states have governments of separated powers. No requirement in the federal constitution exists that the states have constitutions that require a separation of powers. Theoretically, if a state so desired, it could clothe an officer or an agency with not only executive but also plenary judicial and legislative powers. However, as indicated previously, this is not the case, and all states have governments with separate branches, each of which exercises checks and balance on the powers of other branches. All state constitutions provide for a system of free public schools. Such provisions range from very specific educational requirements to broad mandates that the legislature of the state shall provide funds for the support of a public school system.
STATUTES A statute is an act of government expressing legislative will and constituting a law of the state. Statute is a word derived from the Latin term statutum, which means “it is decided.” Statutes, in our American form of government, are the most viable and effective means of making new law or changing old law. Statutes enacted at the state or federal level may either follow custom or forge ahead and establish new laws that shape the future. Statutes in this country are subject to review by the judiciary to determine their constitutionality. This procedure is different from that used in England, where the legislature has ultimate authority and there are no means by which the courts can hold legislation unconstitutional. This is true primarily because in England the constitution, for the most part, is unwritten, and the legislature, Parliament, may amend the constitution when it so desires. The U.S. public schools are governed by statutes enacted by state legislatures. The schools have no inherent powers, and the authority to operate them must be found in either the express or implied terms of statutes. The specificity of statutes governing the operation of public schools varies from state to state and from subject to subject. As an example, one
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Chapter 1
The Legal System
state may generally require appropriate measures to be followed in budgeting and accounting for public funds, whereas in another state the legislature may actually specify each line item of the budget for school systems and prescribe intricate details for fund accounting. Rules and regulations of both state and local boards of education fall within the category of statutory sources of school law. As a general rule, the legislature cannot delegate its legislative powers to govern the schools to a subordinate agency or official. Boards of education must, in devising rules and regulations for the administration of the schools, do so within the limits defined by the legislature and cannot exercise legislative authority. However, the legislature may confer, expressly or impliedly, administrative duties upon an agency or official through statute. These administrative powers must be well defined and “canalized” within definitely circumscribed channels.
JUDICIAL DECISIONS (CASE LAW) The third source of school law derives from judicial opinions or case law. The term case law is used to distinguish the rules of law that originate within legislative bodies. The term common law, in its broadest sense, may be used to contrast the entire system of Anglo-American law with the law of non–English-speaking countries that sometimes are referred to as having systems of civil law. Civil law is a system of statutes which does not rely on case law precedent. Not all case law can be categorized as common law. Case law rendered by courts in interpreting the meanings of statutes or constitutions are not, per se, common law. Common law originated in England, where judicial precedents from various parts of the country became common to the entire country. This customary law eventually crystallized into legal principles that were applied and used as precedent throughout England—common to the entire country. Common Law. Thus, “common law is a body of general rules prescribing social conduct” 2 that has five recognizable attributes. First, it is a general, overarching precedent that applies throughout the state or country. Second, the general rules are applied and enforced by the courts without necessarily involving either the
executive or legislative branches of government. Third, the common law enunciates principles derived from actual legal controversies. Fourth, the common law emanates from use of the jury system to ascertain the facts to which the law is applicable. Fifth, the common law is premised upon the rule of law or doctrine of supremacy of law—that is, the rule of law and not of man, the rule of established principles and not acts of caprice or arbitrariness.3 Hogue says that these five principles prescribe a positive definition: “[T]he common law is a body of general rules prescribing social conduct, enforced by ordinary . . . courts, and characterized by the development of its own principles in actual legal controversies, by the procedure of trial by jury, and by the doctrine of the supremacy of law.”4 The subject matter most prevalent in common law involves torts, contracts, property, and trusts. Lawrence M. Friedman in his popular work, A History of American Law, describes what he calls the “‘liability explosion’: the vast increase in liability in tort, mostly for personal injuries.”5 He attributes most of this explosion in common-law tort to the invention of the automobile and all the injuries that emanate from that one source. Automobiles cannot take all the blame. The commonlaw tort explosion has resulted from other sources of injury as well: product liability, medical malpractice, and other professional malpractice suits against lawyers, accountants, financial institutions, etc., as well as the full panoply of toxic torts, best represented by the asbestos litigation, and other injuries both physical and mental, limited only by the imagination and ingenuity of knowledgeable lawyers. Since common law, including torts, is so diverse, by and large emanating from many state courts, the American Law Institute (ALI) began in 1923 to publish Restatements of Law, researched and written by committees of legal experts, judges, lawyers, and professors. The Restatements seek to enunciate “an orderly restatement of the general common law of the United States, including in that term not only the law developed solely by judicial decision, but also the law that has grown from the application by the courts of statutes that were generally enacted and were in force for many years.”6 These Restatements are
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Political Neutrality and the Courts
considered to be authoritative sources by the courts.
ADMINISTRATIVE LAW A fourth source of law is constituted of those rules and regulations promulgated by administrative agencies of government at the local, state, and federal levels. As we discuss later in this book, administrative agencies are a part of the executive branch of government. They, however, possess aspects of all three branches of government. Their rule-making function is quasi-legislative; their administrative function is that of the executive branch, and their enforcement of these rules is quasi-judicial in nature. State education agencies, usually headed by a state superintendent of public instruction or a commissioner of education, are agencies that form, implement, and adjudicate matters of administrative law for the public schools. At the local level the school board formulates policy and enacts regulations that are administered by a school superintendent, and the school board sets as an administrative tribunal when conflicts arise regarding the regulations or their implementation. At the federal level, the U.S. Department of Education is the main administrative agency that promulgates regulations affecting the public schools. All of such regulations must be authorized and approved by Congress and must be within the scope and intent of acts of Congress. For example, the myriad regulations promulgated by the U.S. Department of Education constitute a large body of administrative law to which state and local education agencies must adhere if they are to benefit from the largesse of federal educational funding. The administrative structure at the federal level, which oversees the use of federal funds for education, differs from the administrative law agencies at the state level in that the U.S. Department of Education regulations are not promulgated by a board but rather by the U.S. secretary of education. Moreover, the secretary is empowered by Congress to administer the laws of Congress and the regulations made pursuant thereto and to render judgments as to violations. However, not all federal agencies act only through the singularity of a secretary or one appointed official. For example, some
5
agencies are governed by appointed boards authorized by legislation such as the National Labor Relations Act, under which the National Labor Relations Board not only enacts agency policy, but oversees its administration and sits as a tribunal to hear cases involving labor disputes in the private sector.
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Political Neutrality and the Courts
The notion that the judiciary should be above pedestrian politics and factionalism is an ideal that has found only limited success in the United States. Madison was concerned about the detrimental effects of political factions—the danger of factions in securing the public good. 7 The Founders relied to a large extent on two features of the Constitution to mitigate the effects of national factions: first was the reservation of rights to the state governments, and second was the vesting of elections. Unfortunately, the nation was barely out of the starting gates when the conflict between the Federalists and the Republicans materially infected the Supreme Court and its judgments. The great Chief Justice John Marshall was not immune; rather, he was a carrier of the political virus. As an ardent Federalist, he opposed in his decisions virtually everything that the Republicans, led by Thomas Jefferson and James Madison, envisioned for the new nation. Most notably, the decision by Marshall in the seminal 1819 Dartmouth College case,8 that formed the boundaries of contract law and corporate charters, granted the Federalist Party an important victory in national and state politics. Also, politics greatly influenced Marshall’s decision in the structural constitutional law case of Marbury v. Madison.9 In Marbury, Marshall, the Federalist, again check-mated Madison and Jefferson and the Republicans, by upholding the appointments of the “midnight judges” by President Adams. Thus, the politicizing of the judiciary in the United States is of early vintage. Such political influences over the judiciary continue and are possibly even more pronounced today. In his relevant essay on the “rule of law,” Tom Bingham 10 observes that the appointment of U.S. Supreme Court justices is “a matter of acute
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6
Chapter 1
The Legal System
political controversy,” and he points to the highly partisan U.S. Supreme Court decision in Bush v. Gore, 2000, as the ultimate political act where the Court departed from all judicial restraint and effectively appointed the president of the United States. The Supreme Court, in supporting Bush, ignored precedents and exhibited little concern for the vaunted ideal of the “rule of law.” Bingham buttressed his argument by pointing to Justice Brandeis’s involvement with Democrat President Woodrow Wilson’s legislative program, Justice Frankfurter’s strategy sessions with President Roosevelt regarding the New Deal legislation, and Justice Fortas’s counsel to President Johnson regarding the Vietnam War, steel price increases, and labor union issues.11 The departures from the rule of law in favor of political considerations were notably illustrated in the U.S. Supreme Court 2010 decision, Citizens United v. Federal Election Commission,12 that disregarded earlier precedents, and upheld, as a corporate speech right, the film Hillary: The Movie, labeled by the New York Times to be a “90-minute stew of political commentary.”13 The decision dramatically favored the position of the Republican Party, permitting unlimited financing of political campaigns by large corporations.
POLITICS AND THE COURT On the morning of Jefferson’s inauguration, Marshall (whom Jefferson, in a conciliatory move, asked to administer the oath) had written a letter to a friend making clear where his political allegiances rested now that the judiciary was the only branch of government that his party, the Federalists, controlled. “Of the importance of the judiciary at all times but more especially the present, I am very fully impressed and I shall endeavor in the new office (Chief Justice) to which I am called not to disappoint my friends,” he wrote pointedly. Perhaps to put himself into a less partisan frame of mind, he conceded that Jefferson was not as extreme as some of his supporters. “The democrats are divided into speculative theorists and absolute terrorists,” he observed. “With the latter I am not disposed to class Mr. Jefferson.” The letter then broke off so Marshall could administer the oath of office, but he returned after the ceremony to add some wan praise for the
inaugural address he had just witnessed, in which Jefferson declared, “We are all republicans, we are all federalists,” referring to the political principles of majority rule and national union. “It is in the general well judged and conciliatory,” Marshall wrote. “It is in direct terms giving the lie to the violent party declamation which has elected him, but it is strongly characteristic of the general cast of his political theory.” —Jeffrey Rosen
A half century earlier, Robert A. Dahl,14 a respected political scientist from Yale, wrote about the “politics” dilemma expressing the view that the Supreme Court is simply a part of the ordinary partisan political machinery of the nation. He said: “As a political institution, the Court is highly unusual, not least because Americans are not quite willing to accept the fact that it is a political institution and not quite capable of denying it; so that frequently we take both positions at once.”15 Michael Kammen,16 the outstanding constitutional historian at Cornell, however, advances a more positive view of the encroachment of politics into the presumed sanctity of the judiciary. He cites Theodore Roosevelt’s reasoning when, in 1902, he was considering the great jurist Oliver Wendell Holmes, Jr., for appointment to the Supreme Court. Roosevelt asked the influential Henry Cabot Lodge, T. R.’s friend, for his opinion regarding Holmes’s partisanship and whether such would be a deterrent to his reasoning of cases before the Supreme Court. Roosevelt wrote to Lodge saying: “In the ordinary and low sense which we attach to the words ‘partisan’ and ‘politician,’ a judge of the Supreme Court should be neither. But in the higher sense, in the proper sense, he is not in my judgment fitted for the position unless he is a party man, a constructive statesman, constantly keeping in mind his adherence to the principles and policies under which this nation has been built up and in accordance with which it must go on.”17 Of course, Roosevelt’s observations regarding judges are equally applicable to all people in all walks of life, and are particularly expected of public officials, regardless of their political leanings.
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Powers and Functions of Courts
Brooks Adams, writing in 1913, lamented the inadequacy of the politicized courts. He wrote: [Under the American system] the Constitution, or fundamental law, is expounded by judges, and this function, which, in essence, is political, has brought precisely that quality of pressure on the bench which it has been the labor of a hundred generations of our ancestors to remove. On the whole, the result has been not to elevate politics, but to lower the courts toward the political level. . . . In 2010, six of the nine justices on the U.S. Supreme Court were appointed by Republican Party presidents and among the judges on 13 federal circuits, U.S. Courts of Appeals, 59 percent were appointed by Republican presidents.18 Among the federal circuits, only the Ninth has a majority of judges appointed by Democrat presidents. A careful examination of education law decisions reveals a more conservative bent of the federal courts due to the presidencies of Reagan, Bush I, and Bush II, as reflected in opinions regarding school desegregation, separation of church and state, student/teacher equal protection rights and due process interests, the emergence of Eleventh Amendment precedents protecting states from liability, etc. These precedents are discussed in the sections below. Thus, although most persons would, presumably, prefer the sanctity of the rule of law, and would desire political neutrality of the judiciary, the record of practical application of the concept unfortunately finds the political nonpartisanship screen to be porous and highly permeable.
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Powers and Functions of Courts
The question of what powers may be exercised by the judiciary in reviewing decisions or enactments by the other two branches of government is essential to our system of government. The courts have traditionally maintained and enforced the concept of “separation of powers” when confronted with cases involving education. They do not usually question the judgment of either the administrative agencies of the executive branch or the legislative branch. This is true at the federal level as well as the state level.
7
One court, in describing the hesitancy of the courts to interfere with the other two branches of government, said: This reluctance is due, in part, to an awareness of the sometimes awesome responsibility of having to circumscribe the limits of their authority. Even more persuasive is an appreciation of the importance in our system of the concept of separation of powers so that each division of government may function freely within the area of its responsibility. This safeguarding of the separate powers is essential to preserve the balance which has always been regarded as one of the advantages of our system.19
In accordance with this reasoning, the courts presume that legislative or administrative actions were enacted conscientiously with due deliberation and are not arbitrary or capricious.20 When the courts do intervene, they perform three types of judicial functions: (1) settle controversies by applying principles of law to a specific set of facts, (2) construe or interpret enactments of the legislature, and (3) determine the constitutionality of legislative or administrative actions.
APPLYING PRINCIPLES In applying principles of law to factual situations, the court may find the disputants to be school districts, individuals, or both. Although school law cases generally involve the school district itself, they may, in some instances, concern litigation between individuals; for example, a teacher and a student. In many cases, the principles of law governing the situation are vague, and statutory and constitutional guidance are difficult to find. In such instances, the judges must look to judicial precedent for guidance. Cardozo related the process in this manner: Where does the judge find the law he embodies in his judgment? There are times when the source is obvious. The rule that fits the case may be supplied by the constitution or by statute. If that is so, the judge looks no further. The correspondence ascertained his duty is to obey. The constitution overrides a statute, but a statute, if consistent with the constitution, overrides the law of judges. In this sense, judge-made law is secondary and subordinate to the law that is made by legislators. . . . We reach the land of mystery when constitution and statute are silent, and the judge must look to the common law for the rule that fits the case. He is the “living oracle of the law” in Blackstone’s vivid phrase.21
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Chapter 1
The Legal System
INTERPRETING STATUTES
DETERMINING CONSTITUTIONALITY
The second function of the courts, the task of construing and interpreting statutes, is the most common litigation involving public school operation. Because statutes are merely words, to which many definitions and interpretations may be applied, courts may actually affect the meaning of the legislation. Pound conceives of four ways with which legislation may be dealt by the courts once litigation arises:
The functions and responsibilities of the judiciary in determining the constitutionality of legislation were set out early in Marbury v. Madison24 in prescribing the power of the U.S. Supreme Court. This case shaped the American view of the role of the judiciary. Chief Justice Marshall’s landmark opinion stated:
1. They might receive it fully into the body of the law as affording not only a rule to be applied but a principle from which to reason, and hold it, as a later and more direct expression of the general will, of superior authority to judge-made rules on the same general subject; and so reason from it by analogy in preference to them. 2. They might receive it fully into the body of the law to be reasoned from by analogy the same as any other rule of law, regarding it, however, as of equal or coordinate authority in this respect with judge-made rules upon the same general subject. 3. They might refuse to receive it fully into the body of the law and give effect to it directly only; refusing to reason from it by analogy but giving it, nevertheless, a liberal interpretation to cover the whole field it was intended to cover. 4. They might not only refuse to reason from it by analogy and apply it directly only, but also give it a strict and narrow interpretation, holding it down rigidly to those cases it covers expressly.22 The last hypothesis is probably the orthodox, traditional approach; however, the courts today, in interpreting statutes, tend to adhere more and more to the second and third hypotheses. The philosophy of the courts toward statutory interpretation varies not only among judges and courts but also in the content of the legislation being interpreted. The courts are generally more willing to grant implied authority to perform educational programs where large sums of public monies are not involved. For cases in which taxing authority is in question or in which large capital outlay programs are at issue, the courts tend to require very specific and express statutory authority in order for a school board to perform.23
It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So, if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case, conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If then the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.
In determining the constitutionality of statutes, the courts first presume the act to be constitutional and anyone maintaining the contrary must bear the burden of proof. The Florida Supreme Court has related the principle in this manner: “[W]e have held that acts of the legislature carry such a strong presumption of validity that they should be held constitutional if there is any reasonable theory to that end. . . . Moreover, unconstitutionality must appear beyond all reasonable doubt before an act is condemned. . . .”25 If a statute can be interpreted in two ways, one by which it will be constitutional, the courts will adopt the constitutional interpretation.26 With specific regard to the U.S. Supreme Court’s review of legislation, either state or federal, the judicial duty in the eyes of Justice Brandeis was that “[i]t must be evident that the power to declare legislative enactment void is one which the judge, conscious of the fallibility of human judgment, will shrink from exercising in any case where he can conscientiously and with due regard to duty and official oath decline the responsibility.”27 Using this basic philosophy, Justice Brandeis, in 1936, set out certain
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Stare Decisis
criteria for judicial review that are still generally referred to today when considering the standing of litigants before the Supreme Court. 1. The Court will not pass upon the constitutionality of legislation in a friendly, nonadversary proceeding, declining because to decide such questions is legitimate only in the last resort, and as a necessity in the determination of real, earnest, and vital controversy between individuals. 2. The Court will not anticipate a question of constitutional law in advance of the necessity of deciding it. It is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case. 3. The Court will not formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied. 4. The Court will not pass upon a constitutional question, although properly presented by the record, if there is also present some other ground upon which the case may be disposed of. This rule has found most varied application. Thus, if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter. 5. The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he or she is injured by its operation. Among the many applications of this rule, none is more striking than the denial of the right of challenge to one who lacks a personal or property right. Thus, the challenge by public officials interested only in the performance of their official duty will not be entertained. 6. The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself or herself of its benefits. 7. When the validity of an act of Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether the construction of the statute is fairly possible by which the question may be avoided.28
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The Purpose of Law An Invitation to Jurisprudence, Harry W. Jones Reprinted with permission: Colum. L. Rev. 1023, 1031–32 (1974).
[F]ive of law’s most viable ends-in-view [are]: Preservation of the public peace and safety, the settlement of individual disputes, the maintenance of security of expectations, the resolution of conflicting social interests, and the channeling of social change. This is no complete inventory of law’s tasks, nor is it a neat set of mutually exclusive teleological pigeon holes. There are manifest overlappings—for example, the resolution of conflicting social interests is one of the ways in which law helps to channel the forces of social change— and some of the law’s ends-in-view can come into collision with others, as when law’s adjustment to social change involves some unavoidable impairment of the security of individual expectations. In law as in ethics, the hardest task is often not the identification of values, but the assignment of priorities when, in a specific problem context, one value cannot be fully served without some sacrifice of another. But even and particularly when values cut across one another, disinterested and informed judgment on legal and social problems requires that each of the competing ends-in-view be understood in its full claim as an aspect or dimension of what law is for: the creation or preservation of a social environment in which, to the degree manageable in a complex and imperfect world, the quality of human life can be spirited, improving and impaired.
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Stare Decisis
Implicit in the concept of common or case law is the reliance on past court decisions that reflect the historical development of legal controversies. Precedents established in past cases form the groundwork for decisions in the future. In the United States, the doctrine of precedent or the rule of stare decisis, “Let the decision stand,” prevails, and past decisions are generally considered to be binding on subsequent cases that have the same or substantially the same factual situations. The rule of stare decisis is rigidly
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Chapter 1
The Legal System
adhered to by lower courts when following decisions by higher courts in the same jurisdiction. Courts can limit the impact of the doctrine of precedent by distinguishing carefully the facts of the case from those of the previous case that established the rule of law. Aside from distinguishing factual situations, courts of last resort can reverse their own previous decisions and change a rule of law that they themselves established. Stare decisis in American law does not constitute the strict adherence to older decisions that is found in English courts. The American rule of today is probably best stated by Justice Brandeis when he said that “stare decisis is usually the wise policy . . . ”29 and by Justice Cardozo, who observed that “I think adherence to precedent should be the rule and not the exception.”30
Nature and Authority of Judicial Precedents, Henry Campbell Black The Law of Judicial Precedents 10–11 (1912).
Not as a classification, but as exhibiting the chief aspects or applications of the doctrine of precedents, the subject might be broadly divided into five branches, in each of which there is to be noted one general rule or governing principle, as follows: First. Inferior courts are absolutely bound to follow the decisions of the courts having appellate or revisory jurisdiction over them. In this aspect, precedents set by the higher courts are imperative in the strictest sense. They are conclusive on the lower courts, and leave to the latter no scope for independent judgment or discretion. Second. The judgments of the highest court in any judicial system—state or national—are binding on all other courts when they deal with matters committed to the peculiar or exclusive jurisdiction of the court making the precedent. Thus, when the U.S. Supreme Court renders a decision construing the federal constitution or an act of Congress, that decision must be accepted by all state courts, as well as the inferior federal courts, as not merely persuasive, but of absolutely conclusive authority. In the same way, when a state supreme court pronounces judgment upon the interpretation of a statute of the state, its decision has imperative
force in the courts of the United States, as well as in the courts of another state. Third. It is the duty of a court of last resort to abide by its own former decisions, and not to depart from or vary them unless entirely satisfied, in the first place, that they were wrongly decided, and, in the second place, that less mischief will result from their overthrow than from their perpetuation. This is the proper application of the maxim, “stare decisis.” Fourth. When a case is presented to any court for which there is no precedent, either in its own former decisions or in the decisions of any court whose rulings, in the particular matter, it is bound to follow, it may consult and be guided by the applicable decisions by any other court, domestic or foreign. In this case, such decisions possess no constraining force, but should be accorded such a measure of weight and influence as they may be intrinsically entitled to receive, the duty of the court being to conform its decision to what is called the “general current of authority” or the “preponderance of authority,” if such a standard can be ascertained to exist with reference to the particular question involved. Fifth. On the principle of judicial comity, a court that is entirely free to exercise its independent judgment upon the matter at issue, and under no legal obligation to follow the decision of another court on the same question, will nevertheless accept and conform to that decision, as a correct statement of the law, when such a course is necessary to secure the harmonious and consistent administration of the law or to avoid unseemly conflicts of judicial authority. But comity does not require any court to do violence to its own settled convictions as to what the law is.
Rule of Law 1 Commentaries on the Laws of England, William Blackstone, Vol. I, pp. 69–70.
For it is an established rule to abide by former precedents, where the same points come again in litigation: as well to keep the scale of justice even and steady, and not liable to waver with every new judge’s opinion; as also because the law in
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How to Read a Case
that case being solemnly declared and determined, what before was uncertain, and perhaps indifferent, is now become a permanent rule, which it is not in the breast of any subsequent judge to alter or vary from according to his private sentiments: he being sworn to determine, not according to his own private judgment; but according to the known laws and customs of the land; not delegated to pronounce a new law, but to maintain and expound the old one. Yet this rule admits of exception, where the former determination is most evidently contrary to reason; much more if it be clearly contrary to the divine law. But even in such cases the subsequent judges do not pretend to make a new law, but to vindicate the old one from misrepresentation. For if it be found that the former decision is manifestly absurd or unjust, it is declared, not that such a sentence was bad law, but that it was not law; that is, that it is not the established custom of the realm, as has been erroneously determined. And, hence, it is that our lawyers are with justice so copious in their encomiums on the reason of the common law; that they tell us, that the law is the perfection of reason, that it always intends to conform thereto, and that what is not reason is not law. Not that the particular reason of every rule in the law can at this distance of time be always precisely assigned; but it is sufficient that there be nothing in the rule flatly contradictory to reason, and then the law will presume it to be well founded.
THE RULE OF LAW The rule of law has two basic relevant meanings: First, “that no man is punishable or can lawfully be made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land.” Second, “no man is above the law . . . every man, whatever his rank or condition, is subject to the ordinary law . . . and amenable to the jurisdiction of the ordinary tribunals.” —A. V. Dicey
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How to Read a Case
Karl N. Llewellyn,31 late professor of law at the University of Chicago, in his work The Bramble Bush, probably offers the best and most concise
11
explanation of what to look for when reading case law. Since the case method is employed in presenting most of the materials in this book, it seems appropriate to quote a portion of Llewellyn’s comments on reading and analyzing judicial opinions. The first thing to do with an opinion, then, is read it. The next thing is to get clear the actual decision, the judgment rendered. Who won? The plaintiff or defendant? And watch your step here. You are after in first instance the plaintiff and defendant below, in the trial court. In order to follow through what happened you must therefore first know the outcome below; else you do not see what was appealed from, nor by whom. You now follow through in order to see exactly what further judgment has been rendered on appeal. The stage is then cleared of form—although of course you do not yet know all that these forms mean, that they imply. You can turn now to what you peculiarly do know. Given the actual judgments below and above as your indispensable framework—what has the case decided, and what can you derive from it as to what will be decided later? You will be looking, in the opinion, or in the preliminary matter plus the opinion, for the following: a statement of the facts the court assumes; a statement of the precise way the question has come before the court—which includes what the plaintiff wanted below, and what the defendant did about it, the judgment below, and what the trial court did that is complained of; then the outcome on appeal, the judgment; and finally the reasons this court gives for doing what it did. This does not look so bad. But it is much worse than it looks. For all our cases are decided, all our opinions are written, all our predictions, all our arguments are made, on certain four assumptions. . . . (1) The court must decide the dispute that is before it. It cannot refuse because the job is hard, or dubious, or dangerous. (2) The court can decide only the particular dispute which is before it. When it speaks to that question it speaks ex cathedra, with authority, with finality, with an almost magic power. When it speaks to the question before it, it announces law, and if what it announces is new, it legislates, it makes the law. But when it speaks to any other question at all, it says mere words, which no man needs to follow. Are such words worthless? They are not. We know them as judicial dicta; when they are wholly off the point at issue we call them obiter dicta—words dropped along the road, wayside remarks. Yet even wayside remarks shed light on the remarker. They may be very useful in the future to him, or to us. But he will not feel bound to them, as
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Chapter 1
The Legal System
to his ex cathedra utterance. They came not hallowed by a Delphic frenzy. He may be slow to change them; but not so slow as in the other case. (3) The court can decide the particular dispute only according to a general rule which covers a whole class of like disputes. Our legal theory does not admit of single decisions standing on their own. If judges are free, are indeed forced, to decide new cases for which there is no rule, they must at least make a new rule as they decide. So far, so good. But how wide or how narrow, is the general rule in this particular case? That is a troublesome matter. The practice of our case law, however, is I think, fairly stated thus: It pays to be suspicious of general rules which look too wide; it pays to go slow in feeling certain that a wide rule has been laid down at all, or that, if seemingly laid down, it will be followed. And there is a fourth accepted canon: (4) Everything, everything, everything, big or small, a judge may say in an opinion, is to be read with primary reference to the particular dispute, the particular question before him. You are not to think that the words mean what they might if they stood alone. You are to have your eye on the case in hand, and to learn how to interpret all that has been said merely as a reason for deciding that case that way. . .
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Case or Controversy
Article III of the U.S. Constitution limits the power of the federal judiciary to “decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision.”32 The federal judicial branch may settle conflicts that involve only actual “cases” and “controversies.”33 The determination of what constitutes a case and controversy is left to the judgment of the Supreme Court. The U.S. courts do not sit to decide questions of law presented in a vacuum, but only to decide such questions as arise in a case or controversy.34 The two terms can be used interchangeably for we are authoritatively told that a controversy, if distinguishable at all from a case, is distinguishable only in that it is a less comprehensive term and includes only suits of a civil nature.35 Whether it is a case or controversy—justiciable in the federal courts—was defined by Chief Justice Hughes in a classic and cryptic statement. He said: “A ‘controversy’ in this sense must be one that is appropriate for judicial determination. A justiciable controversy is thus distinguished from a difference or dispute of a hypothetical character;
from one that is academic or moot. The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests. It must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.”36 Later, Chief Justice Warren said of the case or controversy requirement that “those two words have an iceberg quality, containing beneath their surface simplicity submerged complexities which go to the very heart of our constitutional form of government. Embodied in the words ‘cases’ and ‘controversies’ are two complementary but somewhat different limitations. In part, those words limit the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process. And in part those words define the role assigned to the judiciary in a tripartite allocation of power to assure that the federal courts will not intrude into areas committed to the other branches of government. Justiciability is the term of art employed to give expression to this dual limitation placed upon federal courts by the case and controversy doctrine.”37 It should also be noted that the limitation to “case or controversy” is intimately related to the doctrine of judicial review. In Marbury v. Madison,38 it was central to Marshall’s argument that a court has power to declare a statute unconstitutional only as a consequence of the power of the court to decide a case properly before it. There may be unconstitutional statutes, but unless they are involved in a case properly susceptible of judicial determination, the courts have no power to pronounce that they are unconstitutional. The reluctance of courts to pass on constitutional issues, unless absolutely necessary, has led to a rigorous set of rules as to what constitutes a justiciable case or controversy.
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The American Court System
In our federal form of government, it is necessary to have a dual judicial system: state and federal. Cases involving public schools may be litigated at either level, and although most actions involve nonfederal questions and are decided by
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The American Court System
state courts, recent years have brought on a substantial increase in the number of school case decisions handed down by federal courts.
STATE COURTS State constitutions generally prescribe the powers and the jurisdiction of the primary or main state courts. The legislature, through power granted in the constitution, provides for the specific operation of the constitutional courts, and it may create new and additional courts. State courts may be called upon to rule on the constitutionality of either state or federal laws, and their rulings are final unless there is a conflict with federal judicial precedents. State courts are the final interpreters of state constitutional law and state statutes.39 The importance of state supreme courts in the judicial system is noted by Nowak and Rotunda:
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highest court. A mandatory case refers to an “appeal of right,” which the court must hear and decide on the merits.41 Discretionary jurisdiction of appellate courts refers to cases in which a party must file a petition to seek redress of the court. The court, then, must exercise its discretion in accepting or rejecting the case.42 Intermediate Appellate Courts
State courts can be classified into four categories: courts of last resort, intermediate appellate courts, courts of general jurisdiction, and courts of limited jurisdiction.
These courts have been established in 38 states to hear appeals from trial courts and administrative agencies as specified by state statute.43 The role of these appellate courts is to review specific trial court proceedings to correct errors in the application of law and procedure44 and to serve to extend and expand the law for the good of the community. Both of these generic purposes are held in common by both the intermediate appellate courts and the courts of last resort. The intermediate appellate courts hear both mandatory and discretionary cases. In the two-tier appellate state systems, a pattern exists that indicates that the highest court, the court of last resort, tends to control the docket by accepting more discretionary appeals than the intermediate appellate court.45 Today, as appellate caseloads increase, there is a trend toward creation of new intermediate appellate courts. During the last 30 years, 25 states created two-tier systems establishing intermediate appellate courts.46
Courts of Last Resort
Courts of General Jurisdiction
These courts are found at the top of the judicial hierarchy in each state and are established by the state constitution. In 43 states, the official name of this highest court is the Supreme Court. The exceptions are Maryland (Court of Appeals), Maine (Supreme Judicial Court sitting as Law Court), Massachusetts (Supreme Judicial Court), New York (Court of Appeals), and West Virginia (Supreme Court of Appeals). Oklahoma and Texas are unique because they have dual-headed systems that have, respectively, a Supreme Court and a Court of Criminal Appeals as the courts of last resort. Except for Texas and Oklahoma, where civil and criminal cases are separated, all of the courts of last resort have mandatory and discretionary jurisdiction for civil, criminal, and administrative cases. State statute prescribes where types of cases must be taken and which ones may be heard at the discretion of the
These courts are major courts of record from which there exists a right of appeal to the intermediate appellate court or, in some cases, to the court of last resort. The jurisdiction of these courts covers all cases except those reserved for limited or special jurisdiction. Courts of general jurisdiction have court filings in broad areas of civil, criminal, juvenile, and traffic cases, and these are heard by judges in the state court systems throughout the country.47 These courts hold a variety of names, including common circuit, chancery, district, superior, and juvenile.
The supreme court of a state is truly the highest court in terms of this body of law; it is not a “lower court,” even relating to the Supreme Court of the United States. It must follow the Supreme Court’s ruling on the meaning of the Constitution of the United States or federal law, but it is free to interpret state laws or the state constitution in any way that does not violate principles of federal law.40
Courts of Limited Jurisdiction
These courts are lower trial courts with specified jurisdiction, named municipal, district justice, justice of the peace, small claims, traffic, and probate. About three-fourths of all the cases in these courts deal with traffic offenses. Presently,
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14
Chapter 1
FIGURE 1.1
The Legal System
The United States Court System SUPREME COURT OF THE UNITED STATES
U.S. Tax Court and various Administrative Agencies Federal Trade Comm. National Labor Relations Board Federal Power Comm. Etc.
Court of Customs and Patent Appeals
U.S. Courts of Appeals circuits
Court of Claims
U.S. District Courts with Federal and Local Jurisdiction
Canal Zone Guam Virgin Islands
there are over 13,000 courts of limited jurisdiction in the 50 states.
FEDERAL COURTS Article III of the U.S. Constitution provides in part that: “The judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish.”48 Pursuant to this provision, Congress has created a network of courts. Today, the U.S. federal court system includes district courts, circuit courts of appeals, special federal courts, and the Supreme Court. Each state has at least one district court, and usually more than two; California, Texas, and New York have four each, with a total of 94 district courts in the nation. Cases litigated before federal district courts may largely be classified into two types: (1) cases between citizens of different states and (2) cases involving litigation of federal statutes or the federal constitution. Cases before district courts are usually presided over by one judge. Decisions of district courts may be appealed to the federal circuit courts of appeals and, in some instances, directly to the U.S. Supreme Court. The 13 circuit courts of appeals include: one for the District of Columbia, one for all federal districts, and 11 for numbered circuits (see Figures 1.1, 1.2, and 1.3).
U.S. District Courts with Federal Jurisdiction Only
Districts in 50 States Puerto Rico District of Columbia
Customs Court
Appeals from State Court in 50 States, from the Supreme Court of Puerto Rico and the District of Columbia Court of Appeals
In addition, federal courts have been established by the Congress to handle special problems or to cover special jurisdictions. These courts are the courts of the District of Columbia, and the Court of Claims, the Tax Court, the FIGURE 1.2 General Structure of State Court Systems Court of Last Resort (Usually Supreme Court)
Intermediate Appellate Court (Usually Court of Appeals)
Court of General Jurisdiction (Usually Circuit, Chancery, District, Superior, Juvenile Courts)
Court of Limited Jurisdiction (Usually Municipal, Justice of Peace, County, Probate, Magistrate, Small-Claims Courts)
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ALASKA
CALIFORNIA
NEVADA
9 UTAH
GUAM
NEW MEXICO
10
COLORADO
Denver
WYOMING
HAWAII
NORTHERN MARIANA ISLANDS
9
ARIZONA
IDAHO
MONTANA
TEXAS
8
ARKANSAS
MISSOURI
6
Cincinnati
OHIO
ALABAMA
TENNESSEE
11
4
3
Richmond
VA
DC
Philadelphia
PA
2 NY
SOUTH CAROLINA
NORTH CAROLINA
W VA
GEORGIA
Atlanta
KENTUCKY
INDIANA
H
New Orleans
SIP SIS MIS
7
PI
I C
ILLINOIS
Chicago
LOUISIANA
5
M
WISCONSIN
St. Louis
IOWA
MINNESOTA
OKLAHOMA
KANSAS
NEBRASKA
SOUTH DAKOTA
NORTH DAKOTA
A N
9
OREGON
WASHINGTON
The Thirteen Federal Judicial Circuits
I G
San Francisco
FIGURE 1.3
MD
RI
D.C. CIRCUIT
3
VIRGIN ISLANDS
PUERTO RICO
1
Washington, D.C.
FEDERAL CIRCUIT
Washington, D.C.
Boston
New York
CONN
DEL
NJ
NH
MA
VT
1 MAINE
The American Court System
15
FL OR A ID
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Chapter 1
The Legal System
Customs Courts, the Court of Patent Appeals, the Emergency Court of Appeals, and the appeals courts for the U.S. territories. The U.S. Supreme Court is the highest court in the land, beyond which there is no redress. Cases may be brought before the Supreme Court by appeal, writ of certiorari, or through the original jurisdiction of the court. Most school cases that go to the Supreme Court are taken on writs of certiorari, certiorari being an original action whereby a case is removed from an inferior to a superior court for trial. Cases may be taken to the Supreme Court from state courts by writ of certiorari where a state statute or federal statute is questioned as to its validity under the federal Constitution or where any title, right, privilege, or immunity is claimed under the Constitution. Since most school law cases fall within this category, the writ of certiorari is the most common means of getting a case before the Supreme Court.
Vertical Judicial Federalism: The Legal Context Reprinted with permission: G. Alan Tarr and Mary Cornelia Aldis Porter, State Supreme Courts in State and Nation (New Haven and London: Yale University Press, 1988), pp. 5–13.
Federal law is extremely influential in structuring the relations between state supreme courts and federal courts. First of all, it defines the jurisdiction of the federal courts. For although Article III of the United States Constitution grants the federal judicial power to the national government, it does not create a separate system of federal courts (save for the U.S. Supreme Court), leaving Congress free to establish inferior federal courts to assign them the jurisdiction it deems appropriate. Historically Congress has not vested in the courts it created the full range of judicial power that might be assigned to them. Prior to 1875, for example, the federal district courts did not have general original jurisdiction in cases raising federal questions; that is, cases arising under the Constitution, laws, and treaties of the United States. And although the federal judicial power extends to all civil cases between citizens
of different states (the so-called diversity-ofcitizenship jurisdiction), the Judiciary Act of 1789 permitted initiation of such suits in federal courts only when the amount in dispute exceeded a specified minimum amount in order to prevent citizens from being summoned long distances to defend small claims. Furthermore, in conferring diversity jurisdiction on federal courts, Congress has also determined what restrictions shall be placed on the removal of a suit from a state court to a federal district court. Lastly, it is Congress alone that decides whether federal jurisdiction is to be exclusive, thereby precluding initiation of actions in state court, or concurrent. By determining what sorts of cases may be initiated in federal courts and what sorts may not be initiated in state courts, federal law does more than affect the business of federal and state trial courts. Since state supreme courts serve as appellate tribunals within state judicial systems, the mix of cases they receive is vitally affected by the mix of cases at the trial level. Perhaps not surprisingly, then, comparative analysis of the dockets of federal courts of appeals and state supreme courts reveals major differences in the sorts of issues each addresses. Generally speaking, state supreme courts are much more likely to address issues of state law, and federal courts to address issues of federal law, especially federal statutory law. In more substantive terms, state supreme courts issue many more rulings involving tort law, family law and estates, and real property than do federal courts of appeals. On the other hand, federal appellate courts confront public law issues much more frequently— indeed, they compose the single largest category of business for those courts. Despite these differences, each system of courts may have occasion to rule on issues of both federal and state law. And since federal constitutional or statutory claims may be advanced in a state proceeding, a state court may need to resolve issues of both state and federal law in reaching its decisions. Three legal principles govern the exposition and interrelation of these two bodies of law. First is the supremacy of federal law. Under the Supremacy Clause of the United States Constitution, all inconsistencies between federal and state law are to be resolved in favor of the federal law. Indeed, the Constitution expressly mandates that “the Judges in
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Process of Going to Court
every state” are bound by this principle and requires that they take an oath to support the Constitution. Second is the authority of each system of courts to expound its own body of law: state courts must not only give precedence to federal law over state law but also interpret that law in line with the current rulings of the U.S. Supreme Court. As the Mississippi Supreme Court put it in striking down a state law prohibiting the teaching of evolution in public schools, “In determining this question we are constrained to follow the decisions of the Supreme Court of the United States wherein that court has construed similar statutes involving the First Amendment to the Constitution of the United States.”49 Conversely, in interpreting state law, the federal courts are obliged to accept as authoritative the interpretation of the highest court of the state. Third is the so-called autonomy principle; that is, when a case raises issues of both federal and state law, the U.S. Supreme Court will not review a ruling grounded in state law unless the ruling is inconsistent with federal law. . . . [W]hen a state ruling rests on an “independent state ground,” it is immune from review by the U.S. Supreme Court. As this reference to review by the Supreme Court implies, Congress has established mechanisms to ensure the accuracy and faithfulness of state interpretations of federal law. Foremost among these is the provision for review by the Supreme Court of state rulings that present issues of federal constitutional or statutory law. The result, as the Supreme Court has . . . noted, is that “a state [court] may not impose greater restrictions [on state powers] as a matter of federal constitutional law when this court specially refrains from imposing them.”50 This augmentation of the Supreme Court’s authority to supervise the development of federal constitutional law by state courts has become increasingly important in recent years. . . .51 Several observations can be made on the legal context of state supreme courts’ relations with federal courts. First, it is emphatically federal law rather than state law that structures these relationships. Second, whereas the legal principles governing these relationships have not changed over time, the institutional arrangements and procedures designed to vindicate those principles clearly have, affecting both the division of
17
responsibilities between state and federal courts and the avenues for interaction between them. Third, although some changes in the applicable federal statutory law have resulted from a concern for more efficient or rational judicial administration, more frequently they have reflected substantive policy concerns, in particular, a dissatisfaction with or suspicion of rulings by state courts. Efforts during the 1980s to limit the power of federal courts to hear abortion and school prayer cases likewise reflected the injection of policy concerns into jurisdictional issues, although these proposals were, of course, premised on the assumption that state courts would be more likely to rule in line with their sponsors’ wishes.52 Fourth, despite these recent proposals, the trend has been toward an increased availability of federal forums, which—when combined with decisional and statutory limitations on the powers of state courts—has affected the sorts of cases brought to state supreme courts and the finality of their rulings. Thus, congressional expansion of the types of issues that can be litigated in federal court, as exemplified by the extension of the courts’ jurisdiction over federal questions in 1875, has in effect diverted some types of cases to federal forums that might otherwise have been brought to state supreme courts on review. And the expansion of habeas corpus has transformed federal review of state supreme courts’ criminal justice rulings from occasional intervention to a more regularized and consistent oversight.
■
Process of Going to Court
Cases referred to in this book are opinions as rendered by courts of appellate jurisdiction for civil actions in both state and federal courts. In each instance an action was brought in a lower court of original jurisdiction and was appealed by the loser to a higher court for a more favorable determination. The party that appeals is the appellant and the respondent is the appellee. Thus, in the title or style of the case on appeal the first named party, as in Jones v. School District, is the appellant, the loser in the lower court who has appealed. The school district is the appellee. However, we should note that in some states, such as California, for convenience
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Chapter 1
The Legal System
of recordkeeping, the party that originally files the complaint remains the first named party on appeal. In this book, we read what the appellate courts have written in rendering a judgment in a particular dispute. These appeals courts are courts of record, where the record of the lower court is brought forth and argued by the attorneys for each side. Every case in this book began at the lower trial court at either the federal or state level where the aggrieved party brought an action, a trial was conducted, and a judgment rendered on the evidence presented. It may be helpful here to very briefly review how a case gets started, the procedure, the terminology, the pretrial process, and a bit about the trial itself. School law cases nearly always involve civil law rather than criminal law, so the process discussed here in Figure 1.4 is what transpires in civil cases. Beginning the Action
Two types of actions exist: civil and criminal. Civil actions generally occur where an injured party seeks to be compensated for monetary damages, or in equity, where a party seeks an injunction (to prevent an action) or mandamus (to require an action). Civil actions typically involve a wrong against an individual, called a tort, where the burden of proof standard that must be met by the plaintiff is “a preponderance of the evidence.” Criminal actions, which are much less frequent in school law, occur where the police arrest the offender and the state prosecutes FIGURE 1.4
for violation of a criminal statute. Some criminal cases arise when a teacher has been charged with criminal assault and battery, public funds are not properly accounted for, or sexual misconduct occurs. Drugs in today’s schools are also a major criminal issue. The burden of proof standard in a criminal case is “beyond a reasonable doubt.” At the outset of a civil action, a party is aggrieved and believes that resort to the law is necessary to remedy the situation. This person first contacts a lawyer, establishes a lawyer–client relationship, and a determination is made as to whether going to court is actually necessary. If a decision is made to proceed to court, the plaintiff’s attorney must begin by choosing the proper court in which to sue. The attorney must consider three limitations in choosing a court. First, the court must have appropriate “subject-matter jurisdiction” over the action. Normally, this will be the court of general jurisdiction, not a special court of limited jurisdiction such as a traffic court, a domestic relations court, or the like. Second, a court of proper venue must be chosen. Venue refers to geographic location. State statutes define venue in state courts, and federal statutes define venue in federal courts. Third, a court must be chosen that can obtain “personal jurisdiction” over the defendant. Personal jurisdiction is the power of the court to impose a remedy upon the defendant. For example, if a school board is the defendant and statute places it in the jurisdiction of a particular court of general jurisdiction other than where the school board is located, then the plaintiff’s case may be stymied at the outset.
Difference between Civil and Criminal Law Civil Law
Criminal Law
Initiating an Action
Party (plaintiff ) Sues Another Individual or Corporation
Government Prosecutes Offender
Types of Offenses
Tort, Contract, Property, Trusts, Assault and Battery, Constitutional and Statutory Interpretations, etc.
Felonies or Misdemeanors: Treason, Theft, Drugs, Murder, Rape, Assault and Battery, Traffic Violations, etc.
Purpose
Compensation Deterrence
Public Peace and Quiet Punishment Deterrence Rehabilitation
Burden of Proof
Preponderance of Evidence
Beyond a Reasonable Doubt
Redress
Money Damages Equitable Remedies
Capital Punishment Prison Fines
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Process of Going to Court
After the plaintiff and attorney decide to begin a lawsuit and the appropriate court has been selected, the suit may be commenced formally. The party who initiates an action by filing a complaint is called the plaintiff (sometimes called the petitioner). Once the complaint is filed with the appropriate court, a copy (together with a summons) is served on the party named as the defendant. The defendant then has a certain number of days, usually 30, within which he or she must file an answer to the complaint. Failure of the defendant to appear by filing an answer may result in a default judgment. Federal statutes and statutes of many states require the commencement of an action by filing a complaint. The complaint sets forth the allegations that the plaintiff believes justify a judgment against the defendant. Filing of the complaint does not automatically notify the defendant of the action; therefore, the plaintiff must then proceed with a service of process on the defendant. Pleading
The defendant in an action must be notified by service of process and be given information about the nature of the claim. The information is conveyed by a complaint, declaration, or petition. This document is the first pleading in an action. Under federal rules and in most states, the complaint requires the plaintiff to give sufficient factual information to sustain a cause of action and to permit the case to be pled with the necessary specificity. After receiving the complaint and being served with summons, the defendant can respond by denial, introducing an affirmative defense, by seeking independent relief from the plaintiff, or any combination of these responses. Briefly, there are several types of denials, the three most common being a general denial, a specific denial of certain allegations in the complaint, and qualified denials that refer to particular averments within allegations. An affirmative defense may be couched in statutes of limitations (time has expired), res judicata (the matter has already been decided), or assumption of risk (in a tort action, plaintiff assumed the risk of injury). A third response by a defendant may be a counterclaim against the plaintiff. Here the defendant seeks recovery against the plaintiff in a cross-complaint.
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Discovery
Before trial, both parties may resort to discovery as a means of identifying and focusing on the issues in question as revealed by the pleadings. Discovery can record and preserve evidence of witnesses who may not be available for trial, reveal additional facts, and aid in formulating specific issues. Discovery has five basic types. First, a deposition is the testimony of a party or witness taken before trial and recorded. Depositions may be oral or written, and are conducted by the opposing attorneys who are responsible for following the procedural rules of a particular state or federal court. A second type of discovery procedure is for the parties to pose written interrogatories to each other, to which each party must respond with written answers. Discovery can also involve a procedure known as a request for the production of documents and things. Similar to interrogatories, this procedure permits parties to request in writing that the other side provide copies of documents, information, and data that may be used in the trial. A fourth type of discovery procedure is a request for admission that may be utilized by each party asking that the other party admit certain matters of fact or application of law to the facts. A fifth frequently used discovery procedure is a request for a physical or mental examination of one of the parties to the suit. The requesting party must show “good cause” for this procedure, but, of course, such cause may be readily apparent, particularly in personal injury cases where a defendant may seek to discover if there is an actual injury to a plaintiff and if so, the nature and extent of the injury. Disposition without Trial
The court may dispose of a suit before the trial in five basic ways: (1) the judge may enter a default judgment against the defendant if the defendant does not respond to the plaintiff’s summons and complaint; (2) the judge may make a judgment on the pleadings if there is sufficient information in the plaintiff ’s complaint and the defendant’s response; (3) either party may file a motion for summary judgment if there is no dispute as to the facts involved, making a trial unnecessary to establish the facts at issue, and the court then renders a judgment based on this motion and any response; (4) the plaintiff may decide not to pursue the action, in which case
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Chapter 1
20
The Legal System
Outline of Civil Procedure Process for Going to Court
FIGURE 1.5
Plaintiff or Defendant Appeals
Cause of Action Arises
Plaintiff Engages Attorney, Explains Situation
Motion to Alter or Amend; For a New Trial
Attorney Sends Demand Letter to Defendant
Remedy (Damages, Injunction, Restitution)
Attorney Prepares Complaint and Selects the Court
Judgment Plaintiff Files Complaint and Summons
Trial
Defendant Served Summons and Complaint
Settlement Conference or Mediation May Be Ordered
Defendant Responds (Files Answer/ CounterClaim, CrossClaim, or Motion to Dismiss)
Pretrial Conference (If Summary Judgment Not Granted)
Judge Rules on Motion
Motions for Summary Judgment (Plaintiff and/or Defendant)
he or she can move for a voluntary dismissal (an involuntary dismissal also can be obtained against the plaintiff if he or she fails to prosecute the action in a timely manner); and (5) a settlement is reached out of court by the parties (most civil actions can be settled out of court). Trial
The case may be tried before a judge or a jury. If tried before a jury, the first matter of business is to select the members of the jury. After the jury is impaneled, the plaintiff’s attorney makes an opening statement. The defendant’s attorney can
Plaintiff and Defendant Discovery (Depositions, Document Requests, Disclosures, etc.)
make an opening statement or reserve it until such time as the defendant’s case is put before the court. The trial then proceeds; the plaintiff bears the burden of proof. Judgment and Remedy
A judgment is rendered as the official decision of the court for or against the plaintiff. Three common types of remedies include: (1) damages, a monetary award to the prevailing party; (2) restitution, which seeks to prevent the defendant from benefiting from the plaintiff’s loss; and (3) coercive remedy, which enjoins a party through
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Finding the Law
the issuance of an injunction—a court order commanding that the losing party either do or cease doing something.
citation of a state court decision can be seen in the chart below.
Appeal
The party that loses may appeal to a higher court. Most states have at least two levels of courts for civil appeals, as the charts in this chapter indicate. In the federal system, trials begin at the federal district court level and may be appealed to the respective federal appellate courts.
■
Finding the Law
The sources of the law emanate from the three branches of government: statutes from the legislative branch, administrative regulations from the executive branch, and court opinions or case law from the judicial branch. All three are subject to constitutions that provide the basic law of both state and federal governments. The law of education presented in this book is primarily case law rendered by appellate courts that primarily interpret the constitutional validity of statutes as enacted by the legislative branch and rules and regulations of administrative agencies. Public schools are, by definition, in the executive branch of government. Decisions of both federal and state courts are located in case reporters housed in law libraries. In the new age of technology, court decisions can be accessed on the Internet through legal websites or official court websites. The primary sources for computerized access are Westlaw and LexisNexis. Each case is reported on a standard format that contains the citation, or legal reference, and the full text of the case as rendered by the court that handed down the decision.
CITATIONS The court’s opinion, as set forth in a case and officially reported, is the primary source of law for purposes of research and citation. The citation contains the case name, parties, somebody versus somebody, and the case reporter name, for example, Supreme Court Reporter or Federal Reporter (circuit court decisions or reporters for state appellate courts). An example of the
21
Case Name Stein v. Ashville City Board of Education
Case Name Stein v. Ashville City Board of Education
Volume Number
State Reporter
First Page
360
N.C.
321
Regional Reporter Volume and First Year of Number Series Page Decision 626
S.E.2d.
263
(2006)
The same case is reported in both a state reporter and a regional reporter. The regional reporters are published by West Publishing Company, St. Paul, a foremost law book publishing company, and are part of the West National Reporter System. In addition, the regional reporters of the West National Reporter System report state appellate cases as well as cases rendered by the federal courts. These include the Supreme Court Reporter for decisions of the U.S. Supreme Court, the Federal Reporter for decisions of the U.S. Circuit Courts of Appeals, and the Federal Supplement for decisions of the federal district courts in each of the federal circuits. In addition, the U.S. Supreme Court publishes its own opinions in the United States Reports, and Lawyer’s Cooperative publishes the Lawyer’s Edition. A U.S. Supreme Court case usually includes all three case reporter citations. For example: Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701 (1972). Some cases may be cited with the case name; a case file number, such as No. 108625; and with a Westlaw (WL) computerized reporter number of 2007 (year) and a long number such as 2046825, indicating the first page in the Westlaw identification. Too, citations both federal and state, hard copy or computerized, will show the designation of the court. A decision by the U.S. Court of Appeals will indicate the number of the federal circuit. For example, the Seventh Circuit case, Trauvetter v. Quick, 916 F.2d 1140 (7th Cir., 1990).
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Chapter 1
The Legal System
Map of the National Reporter System53
FIGURE 1.6
Pacific
North Western
South Western
North Eastern
South Eastern
Southern
Atlantic
WA VT
ND
MT OR
NH ME
MN SD
ID
MA
WI MI
WY IA
NE
NV UT CA
AZ
NY PA
IL CO
OH WV
KS
MO
VA
KY
NC
TN
OK
NM
IN
RI CT NJ DE MD DC
AR
SC MS
AL
GA
LA
TX
FL AK
HI Source: Reprinted with permission of Thomson Reuters, Legal Research Illustrated, J. Myron Jacobstein, Roy M. Mersky, Donald J. Dunn, Copyright 1994 by The Foundation Press, Inc.
Below are the names of the reporters in the West National Reporter System and the states encompassed by each reporter. P.
Pacific Reporter Alaska, Arizona, California, Colorado, Hawaii, Idaho, Kansas, Montana, Nevada, New Mexico, Oklahoma, Oregon, Utah, Washington, Wyoming
S.E.
Southeastern Reporter Georgia, North Carolina, South Carolina, Virginia, West Virginia
S.W.
Southwestern Reporter Arkansas, Kentucky, Missouri, Tennessee, Texas
F.
Federal Reporter The 13 federal judicial circuits courts of appeals decisions.
A.
Atlantic Reporter Connecticut, Delaware, District of Columbia, Maine, Maryland, New Hampshire, New Jersey, Pennsylvania, Rhode Island, Vermont
N.E.
Northeastern Reporter Illinois, Indiana, Massachusetts, New York, Ohio
Fed. Appx.
Federal Appendix Contains unpublished decisions of the U.S. Circuit Courts of Appeal.
N.W.
Northwestern Reporter Iowa, Michigan, Minnesota, Nebraska, North Dakota, South Dakota, Wisconsin
U.S.
United States Reports U.S. Supreme Court Decisions
S.Ct.
Supreme Court Reporter U.S. Supreme Court Decisions
Southern Reporter Alabama, Florida, Louisiana, Mississippi
L.Ed.
Lawyers’ Edition U.S. Supreme Court Decisions
So.
F.Supp. Federal Supplement The 13 federal judicial circuits district court decisions. See: The Judicial System, p. 699, for specific state circuits.
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Finding the Law
SOURCES OF LEGAL MATERIAL Commencing research on an education law topic in a law library involves a number of sources, including but not limited to the following: a) b) c) d) e)
Legal Encyclopedias and Restatements Dictionaries Law Reviews (or Journals) Books on Law Digests
Legal Encyclopedias and Restatements. Legal encyclopedias are helpful to a researcher in framing a topic and delimiting the scope of the research. Two major national legal encyclopedias include: Corpus Juris Secundum (C.J.S.), and the second legal encyclopedia, American Jurisprudence.2d (Second). Both encyclopedias are designated as “second” because their original first editions have now been superseded by a completely new set of volumes. The encyclopedias are in alphabetical order with the law of higher education found under the heading “Colleges and Universities.” Law for primary and secondary education is found under the heading “Schools and School Districts.” C.J.S. discusses the law under the relevant topic and cites case law very extensively with annotations in footnotes. The volumes are updated with pocket supplements. C.J.S. has a multivolume general index that is easily understood by both lawyers and nonlawyers. Am.Jur.2d presents topics a bit more clearly than C.J.S. in that it cites the prevailing precedents in a more direct manner and dispenses with discussions of less relevant case law. Am.Jur.2d is also kept up to date with pocket supplements. The major components of Am.Jur. are American Law Reports (A.L.R.), American Law Reports Federal (ALR.Fed.), Am.Jur.Forms, Am.Jur. Trials, and Am.Jur.Proof of Facts and Federal Procedure. Am.Jur.2d also has a volume called the Am.Jur. Deskbook that compiles facts and figures that may be relevant to legal researchers. Several states also have state-specific legal encyclopedias that can be accessed in hard copy or electronically via Westlaw or LexisNexis. Restatements. Restatements are authored and published by The American Law Institute (ALI), associated with the American Bar Association
23
(ABA). The American Law Institute was created in 1923 by judges, lawyers, and professors of law. The Restatements were felt to be necessary in order to better enunciate the prevailing precedents of the myriad judicial opinions on subjects of common law such as torts and contracts. For example, the American Law Institute first published the original Restatement of Torts from 1934 to 1939. The Restatement (Second) of Torts is a revision of the original version. In 1992, the Institute undertook a Restatement (Third) of Torts, which updates topics within tort law.54 Dictionaries. Legal dictionaries are much like ordinary dictionaries such as Webster’s, arranged alphabetically by legal words and phrases with definitions for each. The definitions cite case law as authority for the meaning of terms. Several legal dictionaries are available; however, the best known and most widely used are Black’s Law Dictionary and Ballentine’s Law Dictionary. Also, the multivolume set titled Words and Phrases, published by the West Group, is a comprehensive, richly annotated source that provides a valuable insight for research. Entries are alphabetical and the citations cover all jurisdictions and identify each court that defines a term. 55 Too, the online full-text databases of Westlaw and LexisNexis serve as very helpful sources of definitions and reference. Law Reviews and Journals. These sources are called either law reviews or journals and are primarily published by law schools with student editors. The publications have names that identify their academic institutions, such as University of Illinois Law Review and Washington University Law Review or the University of Kentucky Law Journal. Articles in law reviews are profusely footnoted and technically written, as a kind of certification of academic quality. Law review articles are not primary sources of law, but may be cited as persuasive legal authority by courts at all levels. There is, of course, a pecking order of prestige among the law reviews, with the publications at Harvard, Stanford, Yale, Cornell, Michigan, Minnesota, and Virginia always near the top. Articles and comments are indexed by topic and the author ’s name in the Index to Legal Periodicals and Books, published by H. W. Wilson Company. This Index identifies articles as far
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Chapter 1
The Legal System
back as 1908. H. W. Wilson Company also publishes WilsonDisk, a disc version of the Index. The Index to Legal Periodicals is also found online with Westlaw and LexisNexis. Another indexed source is the Current Law Index (CLI) published by Information Access Company (IAC). This source includes books, newspapers, and periodicals under headings developed by the U.S. Library of Congress. The online version of the Current Law Index is titled the Legal Resources Index and is accessible via Westlaw and LexisNexis. Books. Of course, books, more specifically identified in law as hornbooks or casebooks or a combination of the two, are valuable sources of information for research. In addition, there are shorter treatments of law called Nutshells published by West Publishing Company as well as Outlines of the law. Examples of authoritative hornbooks that are valuable for studying constitutional law pertaining to higher education are Constitutional Law, 6th ed., by John E. Nowak and Ronald D. Rotunda, Hornbook Series, WestGroup and Constitutional Law: Principles and Policies, by Erwin Chemerinsky, published by Aspen Law and Business. Nutshells, published by West Publishing Company, are an excellent source of prevailing law regarding many topics that may not be the principal focus of hornbooks or casebooks. For example, the Nutshell titled, The Law of Schools, Teachers and Students, 4th ed., by Kern Alexander and M. David Alexander, published by West Publishing Company, covers key aspects of primary and secondary law. Outlines. Summaries of the law are written specifically for courses in law schools and are utilized by students to aid them in their studies. The most commonly used are Gilbert’s, Emmanuel’s, and Glannon’s, which summarize various legal subjects in a concise and complete fashion. Digests. West Publishing Company, the developer of the National Reporter System, has created what is known as the digest system. The digest system is made possible by a monumental amount of legal analysis. The huge editorial staff at West reads each and every court decision, identifies each of the legal issues, and assigns to each a “headnote.” The headnote is a term of
art that is the substantive part of a classification scheme that assigns and “neatly pigeonholes”56 each point of law to a “key number.” The key number tracks the particular point of law by topic and subtopic from the headnotes of the case in the National Reporter System to the “Key Number Digest,” which is a vast compilation of keyed headnotes that are set out by topic and subtopic, in all the West’s digests. The key number identifies the same headnote from the original case whether the Digest is for a regional reporter, such as the Southern Reporter 2d, or for a particular state’s Digest. In other words, a researcher can follow a particular key number and identify all judicial opinions throughout the 50 states that have included the legal issue of that headnote and key number. Online Legal Research. The two most complete electronic databases for legal research are Westlaw and LexisNexis. Westlaw is owned by the West Group, and LexisNexis is owned by Reed Elsevier. Both services are complete sources for legal research providing all federal and state appellate court cases, federal and state statutes, legal periodicals, indices of legal periodicals, federal and state administrative rules and regulations, and more. Importantly, both systems have online citing sources that update case law and verify the validity of precedents. The Keycite, under Westlaw, flags judicial decisions, enabling the researcher to check the status of a case. A red flag warns that the case is no longer good law. A yellow flag indicates that the case, or points of law within a case, has been given negative treatment by other courts. LexisNexis also has a similar system, known as Shepard’s, which gives the history of each case and informs the researcher of the status of the case. Both Westlaw and LexisNexis cite references and research of the American Law Reports (ALR), along with Restatements, selected law reviews, and various other legal treatises that may have relevance for a particular case.
■
Endnotes
1. Tom Bingham, The Rule of Law (London: Penguin Books, Ltd., 2010), p. 26. 2. Arthur R. Hogue, Origins of the Common Law (Bloomington: Indiana University Press, 1966), p. 178.
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Quoted Box Citations 3. Ibid. 4. Ibid. 5. Lawrence M. Friedman, A History of American Law, 3rd ed. (New York: Simon & Schuster, 2005), p. 516. 6. Wo l k i n , “ R e s t a t e m e n t s o f t h e L a w : O r i g i n , Preparation, Availability,” 21 Ohio B.A. Rept. (1940). See also: Richard A. Mann and Barry S. Roberts, Smith and Roberson’s, Business Law, 12th ed. (Mason, OH: Thomson, South-Western, West, 2003), p. 8. 7. James Madison, “The Federalist No. 10,” The Federalist Papers, November 22, 1787 (New York: Bantam Dell: A division of Random House, Inc., 1982), p. 54. 8. Dartmouth v. Woodward, 4 Wheat (17 U.S.) 518 (1819). See also: Robert Remini, Daniel Webster: The Man and His Time (New York: W.W. Norton & Company, 1997), pp. 134–157. 9. Marbury v. Madison, 1 Cranch (5 U.S.) 137 (1803). 10. Tom Bingham, op. cit., pp. 74–95. 11. Ibid. 12. Citizens United v. Federal Election Commission, 558 U.S. 50, 130 S. Ct. 876, (2010). 13. New York Times, January 22, 2010. 14. Robert A. Dahl, “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker,” JPL, 6 (1957), pp. 279, 280–281, 293. In Michael Kammen, A Machine That Would Go of Itself: The Constitution in American Culture (New York: Alfred A. Knopf, 1986), pp. 198–200. 15. Ibid. 16. Ibid. 17. Letter, Roosevelt to Lodge, July 10, 1902, in Elting E. Morison, ed., The Letters of Theodore Roosevelt (Cambridge, Mass.: 1951), III, p. 289. Cited in Kammen, Ibid. 18. New York Times, “Week in Review,” Sunday, April 11, 2010, pp. 1, 4; Chicago Tribune, “News Focus,” Sunday, April 11, 2010, p. 4. 19. Ricker v. Board of Education of Millard County School District, 16 Utah 2d 106, 396 P.2d 416 (1964). 20. Latham v. Board of Education of City of Chicago, 31 Ill.2d 178, 201 N.E.2d 111 (1964). 21. Benjamin N. Cardozo, The Nature of the Judicial Process (New Haven and London: Yale University Press, 1962), pp. 18–19. 22. Roscoe Pound, “Common Law and Legislation,” 21 Harvard Law Review, pp. 383, 385 (1908). 23. Marion and McPherson Railway Co. v. Alexander, 63 Kan. 72, 64 P. 978 (1901). 9. 5 U.S. (1 Cranch) 137 (1803). 24. 5 U.S. (1 Cranch) 137 (1803). 25. Bonvento v. Board of Public Instruction of Palm Beach County, 194 So.2d 605 (Fla. 1967). 26. Hobbs v. County of Moore, 267 N.C. 665, 149 S.E.2d 1 (1966). 27. Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 56 S. Ct. 466 (1936). 28. Ibid. 29. Burnet v. Coronado Oil and Gas Co., 285 U.S. 393, 52 S. Ct. 443 (1932). 30. Ibid., p. 449. 31. K. N. Llewellyn, The Bramble Bush: On Our Law and Its Study (New York: Oceana Publications, 1960), pp. 41–43.
25
32. Muskrat v. United States, 219 U.S. 346, 31 S. Ct. 250 (1911). 33. Constitution of the United States, Art. III, § 2. 34. Charles Alan Wright, Law of Federal Courts (St. Paul, Minn.: West Publishing Co., 1970). 35. Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 57 S. Ct. 461, 463, 108 A.L.R. 1000 (1937), quoting from In Re Pacific Railway Commission, 32 Fed. 241, 255 (N.D. Cal. 1887). 36. Ibid. 37. Flast v. Cohen, 392 U.S. 83, 94–95, 88 S. Ct. 1942, 1949– 50 (1968). 38. 5 U.S. (1 Cranch) 137 (1803). 39. John E. Nowak and Ronald D. Rotunda, Constitutional Law, 6th ed. (St. Paul, Minn.: West Group, 2000), p. 19. 40. Ibid. 41. State Court Caseload Statistics: Annual Report 1988 (The National Center for State Courts, February 1990), p. 39. 42. Ibid., pp. 38–45. 43. Ibid., p. 18. 44. Ibid. 45. Ibid., pp. 19–20. 46. Ibid. 47. Ibid., p. 5. 48. Constitution of the United States, Art III, § 1. 49. Smith v. State, 242 So.2d 692, 696 (Miss. 1970). 50. Oregon v. Hass, 420 U.S. 714, 719, 95 S. Ct. 1215, 1219 (1975). 51. Hans A. Linde, “First Things First: Rediscovering the States’ Bill of Rights,” University of Baltimore Law Review 9 (Spring 1980), p. 389, n. 42. 52. See, e.g., S. 26, 98th Cong., 1st sess. (1983), which would have deprived lower federal courts of jurisdiction in cases involving state or local abortion laws, and S. 88, 98th Cong., 1st sess. (1983), which would have deprived all federal courts, including the U.S. Supreme Court, of jurisdiction in cases involving voluntary prayer in the public schools. 53. Reprinted with permission of Thomson Reuters, Legal Research Illustrated, J. Myron Jacobstein, Roy M. Mersky, Donald J. Dunn, Copyright 1994 by The Foundation Press, Inc., Map of the National Reporter System. 54. James A. Henderson, Jr., Richard N. Pearson, and John A. Siliciano, The Torts Process, 6th ed. (New York: Aspen Publishers, 2003), pp. 11–12. 55. Robert C. Berring and Elizabeth A. Edinger, Finding the Law, 11th ed. (St. Paul, Minn.: West Group, 1999), p. 300. 56. Robert C. Berringer and Elizabeth A. Edinger, Finding the Law, 11th ed. (St. Paul, Minn.: West Group, 1999), p. 95.
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Quoted Box Citations
John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1989), pp. 161–163. Richard S. Kay, “American Constitutionalism,” in Constitutionalism: Philosophical Foundations, ed. Larry
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Chapter 1
The Legal System
Alexander (Cambridge: Cambridge University Press, 2001), p. 30. Larry Alexander, Constitutionalism (Cambridge: Cambridge University Press, 1998), p. 4. Brooks Adams, The Theory of Social Revolutions (New York, 1913), pp. 45–46.
Henry Holt and Company, 2007), p. 27. Rosen cites: Jean Edward Smith, John Marshall: Definer of a Nation (New York: Henry Holt, 1996), p. 291. A. V. Dicey, An Introduction to the Study of the Law of the Constitution, 9th ed., 1885 (London: Macmillan Company, 1945), pp. 188, 193.
Jeffrey Rosen, The Supreme Court: The Personalities and Rivalries That Defined America (New York: Times Books/
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CHAPTER 2
Historical and Legal Perspective of Public Schools Public education is a duty that society owes to all its citizens. —Condorcet
CHAPTER OUTLINE ■
INTRODUCTION
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AMERICA’S FIRST SCHOOL LAWS
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EDUCATION AS A FUNDAMENTAL RIGHT UNDER STATE CONSTITUTIONS
THE PURITAN INFLUENCE
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JUDICIAL APPROVAL OF COMMON SCHOOLS
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A SYSTEM OF EDUCATION
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EXPANSION OF PUBLIC SCHOOLS
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EDUCATION AND NATURAL LAW
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CHARTER SCHOOLS
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THE STRUGGLE FOR PUBLIC SCHOOLS
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TUITION AND FEES IN PUBLIC SCHOOLS
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DEFINING THE PUBLIC SCHOOLS
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SUMMATION OF CASE LAW
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EDUCATION PROVISIONS OF STATE CONSTITUTIONS
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RESEARCH AIDS
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EDUCATION PROVISIONS AS LIMITATIONS ON LEGISLATURES
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Introduction
manifestation of the people’s conceptualization of the various forms of government and how the governments work. The traditions of the United States clearly enunciate the desire and necessity for maintaining a republican form of government. To this end, universal public education is required. Political philosophy supporting the American form of government leaves no doubt as to
Public education is shaped by the political philosophy of particular governments and the social and cultural traditions of the country in which those governments are found. An unavoidable reciprocity transpires by which the educated people sustain and transform the government. Public school law is an essential
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Chapter 2
Historical and Legal Perspective of Public Schools
the foundational nature of public education. Montesquieu, in his famous The Spirit of Laws published in 1748, observed that among the various types of government, a democracy ensures the greatest virtue, and that to sustain it, the people must be imbued with selflessness, benevolence of attitude to others, and a devotion to country. According to Montesquieu: This virtue may be defined, as the love of the laws and of our country. As this love requires a constant preference of public to private interest, it is the source of all particular virtues. . . . Everything, therefore, depends on establishing this love in a republic, and to inspire, it ought to be the principal business of education. . . . It is in a republican government that the whole power of education is required. . . .1
In 1755, Rousseau wrote that the exercise of citizenship was dependent on education and that “public education . . . is one of the fundamental rules of popular or legitimate government. . . .”2 Of course, Thomas Jefferson, James Madison, and John Adams had read these and other works of the era of the Enlightenment and were influenced by them.3
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According to Horace Mann, it was at the Massachusetts Bay Colony in the seventeenth century that the concept of public universal education was born. Mann said that “it was reserved for ‘the Fathers’ to engraft that great principle in the laws of a country, as a maxim of government, that all the people of a State should be educated by the State.”4 Thus, it would not be accurate to say that the Massachusetts legislation of 1642 and 1647 was solely intended for religious purposes. At that time, there was an emerging feeling that education of youth was essential to the well-being of the state, and that a stable social environment could best be facilitated if all persons were literate. In 1650, Connecticut followed Massachusetts by enacting its own school law following “the old deluder, Satan” law in full and adding new elements whereby failure of “masters of families” to educate their “children and servants” could lead to compulsory removal to other masters until ages 21 for boys and 18 for girls. These new masters would “more strictly look unto and force them to submit unto government, according to the rules of this order, if by fair means and former instructions they will not be drawn unto it.”5
America’s First School Laws
In the early years, predating the founding of the United States, the American colonies had to overcome the accepted pattern of the class-oriented English educational system in which free and universal education was beyond the eye of the most progressive governmental leaders. Children of poor and lower-class families received no education at all or were attached as apprentices to learn a trade and develop manual skills. Even though there was some governmental recognition of the benefits of education, as evidenced by a 1642 statute in Massachusetts in which all parents were charged with seeing to the education of their children, and later by a 1647 statute in which the legislature required certain towns to appoint a teacher and permitted taxes for education, by and large early colonial legislatures tended to ignore education. The law of 1647 was promulgated to teach all to read the Scriptures in order to avoid falling prey to “the old deluder, Satan.”
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The Puritan Influence
The revolution in England that saw the rise to power of Oliver Cromwell and the Puritans introduced a more communitarian outlook that was found wanting under the Tudor and Stuart monarchies. During this era, there were meaningful debates about the value of education and the necessity for governmental involvement in education. Francis Bacon had contributed greatly to this dialogue by urging the scientific scholasticism of the church. In 1641, Jan Amos Comenius, the Moravian exile of Czechoslovakia, internationally known as a preeminent educational thinker, urged that children be taught on realistic lines. Comenius visited England at the invitation of the Puritans to explore the reformation and extension of education. Comenius also called for universal books and universal schools to be implemented by the creation of a system of graded schools in all towns and villages. Even the great John Milton contributed
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A System of Education
to the interchange regarding education with his Of Education, wherein he advanced the idea that “the reforming of education . . . be one of the greatest and noblest designs that can be thought on, and for the want whereof this nation perishes.”6 Unfortunately, Comenius’s idea did not come to fruition, as the conflict between Charles I and Parliament escalated and civil war broke out. The influence of the newfound Puritan interest in education nevertheless had a direct effect on America. In 1656, James Harrison argued that the provision of schools was one of the state’s primary responsibilities.7 Unfortunately, with the restoration of Charles II to the throne after the death of Cromwell, the free flow of ideas regarding universal education subsided and lay virtually dormant for another 200 years. The emphasis on learning in England and the colonies was, however, feeble compared to the continent, where elementary education was made universal and compulsory for both sexes in the duchy of Wurttemberg in 1565, in the Dutch Republic in 1618, and in the duchy of Weimar in 1619. In 1722, Frederick I of Prussia decreed universal public education whereby every parish was required to maintain a school; by 1750 under Frederick II, the Great, Prussia led all of Europe in primary and secondary education.8 England itself did not have any provision of governmental education until 1870, two centuries later. England began to break free of the control of the privileged, who sent their children to the English “public” schools (exclusive private schools), which were operated primarily by the Church of England. It was not until 1880 that local attendance bylaws became compulsory. Even Scotland and France were more egalitarian in their perspective toward education, founding systems of universal education in 1696 and 1698 respectively, even though the French system did not provide for secondary education except in Jesuit schools.
Public education . . . under regulations prescribed by the government, and under magistrates established by the Sovereign, is one of the fundamental rules of popular or legitimate government. If children are brought up in common in the bosom of equality; if they are imbued with the laws of the
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State and the precepts of the general will; if they are taught to respect these above all things; . . . we cannot doubt that they will learn to cherish one another mutually as brothers, to will nothing contrary to the will of society, to substitute the actions of men and citizens for the futile and vain babbling of sophists, and to become in time defenders and fathers of the country of which they will have been so long the children. —Jean-Jacques Rousseau, 1758 The strongest influences of the English system on colonial efforts were mostly negative ones, causing pauper school laws to be created. These laws provided that if indigent parents would declare themselves paupers, their children could be sent to specified private or pay schools for a free education.9 Another vestige of the English system that was used in some colonies was the “rate bill,” which required the parent to pay an amount for each child to supplement inadequate school revenues. The amount assessed was collected from the parents through ordinary tax bills. Such rate bills were still in effect in New York State as late as 1867.10 It was not until the eighteenth-century Enlightenment that a new political philosophy fully developed that conceived of education as essential to the welfare of the state. Until then, the benefits of education were viewed as largely personal; the external value of education to society had not yet been realized. As the colonies began to struggle for independence from England, the concept of free public education gained momentum. Americans became obsessed with freedom, and schools were viewed as the primary means by which freedom could be obtained and maintained.
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A System of Education
During the 1760s and 1770s, the idea developed that there should be a free system of education that would provide for a general diffusion of knowledge, cultivate new learning, and nurture the democratic ideals of government. A “system” of education implied at least three attributes. First, there should be some uniformity of access so that the general population would have the opportunity to acquire some appropriate level of
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Chapter 2
Historical and Legal Perspective of Public Schools
learning. Second, there should be some method by which one could pursue a particular curriculum. Third, there should be some institutional organization whereby a person could progress from primary to secondary to college or university.11 This view was especially well enunciated by Benjamin Rush, who called for the state to be “tied together by one system of education.” “The university,” he said. Will in time furnish masters for the colleges, and colleges will furnish masters for the free schools, while the free schools, in their turns, will supply the colleges and universities with scholars, students and pupils. The same systems of grammar, oratory and philosophy will be taught in every part of the state, and the literary features of Pennsylvania will thus designate one great and equally enlightened family.12
Rush emphasized the need to have a free and uniform system of education that would “render the mass of the people more homogeneous, and thereby fit them more easily for uniform and peaceable government.”13 As Butts observed, “the really important reason for believing in the value of education is that it can be the foundation of freedom. In the first place, a truly democratic society must rest upon the knowledge, intelligence, and wisdom of all people.”14 John Adams observed that nothing is more effective in countering political oppression than the general diffusion of knowledge. Adams wrote that “wherever a general knowledge and sensibility have prevailed among the people, arbitrary government and every kind of oppression have lessened and disappeared in proportion.”15 Americans generally embraced the words of Jefferson, that “a people who mean to be their own Governors must arm themselves with the power which knowledge gives.” More than any other’s, Jefferson’s words redounded the public or common school philosophy that was to sweep the young nation in generations to come. Typical of Jefferson’s position was his letter from Paris in 1786 to his former professor George Wythe, written in support of a bill for general education: This I think by far the most important bill in our whole code is that for the diffusion of knowledge among the people. No other sure foundation can be devised for the preservation of freedom and happiness. . . . Preach, my dear sir, a crusade against ignorance; establish and improve the
law for educating the common people. Let our countrymen know . . . that the tax which will be paid for this purpose is not more than the thousandth part of what will be paid to kings, priests, and nobles who will rise up among us if we leave the people in ignorance.16
In this new era, universal education was in greater demand, and a discernible shift toward more practical studies was in evidence. The old Latin grammar school began to deteriorate as the major source of learning. After 1750, the enthusiasm for schools based on religious motivations began to die down, and the European traditions for both types and methods of education no longer satisfied the American appetite for knowledge.17 A concept of public education evolved that was uniquely American. During this period, general school laws in older states led the progression of public education, requiring maintenance of schools by towns for a definite term each year, imposing taxation, and generally statutorily sanctioning the public school movement that had evolved over a century and a half.18 A clearly defined role of the state in education, however, had not emerged by 1796 when George Washington, in his farewell address, called for the American people to “[p]romote, then, as an object of primary importance, institutions for the general diffusion of knowledge. In proportion, as the structure of a government gives force of public opinion, it is essential that public opinion be enlightened.”19 I consider knowledge to be the soul of a Republic, and as the weak and the wicked are generally in alliance, as much care should be taken to diminish the number of the former as of the latter. Education is the way to do this, and nothing should be left undone to afford all ranks of people the means of obtaining a proper degree of it at a cheap and easy rate. —John Jay, first Chief Justice of the United States To progress from the sporadic and inadequate early general school laws to uniform state systems of free public education was a laborious journey with battles over tax support and sectarianism marking the way. By 1825, it had become commonly recognized that a state system of education would require general and direct
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A System of Education
taxation of a major source of revenue, such as real property. A broad base of taxation became the watchword: “The wealth of the State must educate the children of the State” aptly described the principle of taxation for education that was eventually to emerge.20 Established traditions were not easily overcome, and it was difficult to convince many of the citizens that pauper schools were not the appropriate educational concept, because it was believed the poor and poverty-stricken would benefit from free public schools. A major impetus for education had come from the churches that sought to advance Christianity through knowledge of the Bible. Early states generally recognized and supported these efforts, and several states set aside lands to help church schools. As the new philosophy of public education became entrenched and people started to grasp its benefits, new advocates for state education emerged, and conflict with church leaders developed. The inherent discord between sectarian education and free state education was soon manifested in bitter struggles in several states, the story of which is more fully developed in a later chapter of this book.
Preamble to a Bill for the More General Diffusion of Knowledge (1779) From The Works of Thomas Jefferson, collected and edited by Paul Leicester Ford, Vol. 2, Federal ed. (New York: G.P. Putnam’s Sons, 1904), pp. 414–426, abridged.
Whereas it appeareth that however certain forms of government are better calculated than others to protect individuals in the free exercise of their natural rights, and are at the same time themselves better guarded against degeneracy, yet experience hath shown, that even under the best forms, those entrusted with power have, in time, and by slow operations, perverted it into tyranny; and it is believed that the most effectual means of preventing this would be, to illuminate, as far as practicable, the minds of the people at large, and more especially to give them knowledge of those facts, which history exhibiteth, that, possessed thereby of the experience of
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other ages and countries, they may be enabled to know ambition under all its shapes, and prompt to exert their natural powers to defeat its purposes; and, whereas, it is generally true that people will be happiest whose laws are best, and are best administered, and that laws will be wisely formed, and honestly administered, in proportion as those who form and administer them are wise and honest; whence it becomes expedient for promoting the publick happiness that those persons, whom nature hath endowed with genius and virtue, should be rendered by liberal education worthy to receive, and able to guard the sacred deposit of the rights and liberties of their fellow citizens, and that they should be called to that charge without regard to wealth, birth or other accidental condition or circumstance; but the indigence of the greater number disabling them from so educating, at their own expense, those of their children whom nature hath fitly formed and disposed to become useful instruments for the public, it is better that such should be sought for and educated at the common expence of all, than that the happiness of all should be confided to the weak or wicked. . . .
John Adams and the Importance of Public Education to a Republic
McDuffy v. Secretary of the Executive Office of Education Supreme Judicial Court of Massachusetts, 1993. 415 Mass. 545, 615 N.E.2d 516.
. . . There is substantial evidence that John Adams believed that widespread public education was integral to the very existence of a republican government. In an early and influential essay, Adams described the strong alliances between ignorance and oppression, and between knowledge and liberty. He praised the early English settlers of the colony as deeply learned and deeply committed to liberty. They knew, he said, that nothing countered political oppression more
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Chapter 2
Historical and Legal Perspective of Public Schools
than “knowledge diffused generally through the whole body of the people” and so they set out to “propagate and perpetuate knowledge.” Under their efforts, “the education of all ranks of people was made the care and expense of the public,”. . . . There were, he claimed, however, some persons in Massachusetts “who affect to censure this provision for the education of our youth as a needless expense, and an imposition upon the rich in favor of the poor”; this attitude, Adams continued, was calculated to foster ignorance and, with it, servility. Ignorance and servility were not the lot of the people of Massachusetts, however, because people have natural rights to liberty and to knowledge (they have “a right, from the frame of their nature, to knowledge”). In Massachusetts, the right to liberty was not only a natural right but also the inheritance bequeathed by “our fathers [who] have earned and bought it for us, at the expense of their ease, their estates, their pleasure, and their blood.” Dissertation on the Canon and Feudal Law, in 3 Works of John Adams, 456 (C. F. Adams ed. 1851). To Adams, these rights were interdependent; the former could not be maintained without the latter: “[L]iberty cannot be preserved without a general knowledge among the people.” For this reason, he argued, “the preservation of the means of knowledge among the lowest ranks is of more importance to the public than all the property of all the rich men in the country.” In 1776, three years before drafting the Constitution of the Commonwealth, Adams wrote and published a pamphlet entitled Thoughts on Government, in which he endeavored to answer the question, “What plan I would advise a colony to pursue, in order to get out of the old government and into a new one?” He offered that “there is no good government but what is republican.” Thoughts on Government, in 4 Works of John Adams, 194 (C.F. Adams ed. 1851). He described the requirements of a Constitution for a republican government. He prescribed a tripartite system of government in which the executive, legislative, and judicial branches are independent of one another, a “militia law,” and provisions for widely dispersed public education: “Laws for the liberal education of youth, especially of the lower class of people, are so extremely wise and useful, that, to a humane and generous mind, no expense for this purpose would be thought extravagant.”
In a subsequent version of this plan, he wrote that “two things are indispensably to be adhered to—one is, some regulation for securing forever an equitable choice of representatives; another is, the education of youth, both in literature and morals.” . . .
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Education and Natural Law
Public school advocates, led by Horace Mann of Massachusetts, 21 preached an educational awakening that was ultimately to form the basis for state systems of public education as we know them today—free secular public schools supported by both local and state general taxation. Mann’s idea of free, public, common, universal education was based on natural law, or the external principles of natural ethics, which requires that “the obligation of the predecessors, and the right of the successors, extend to and embrace the means of such an amount of education as will prepare each individual to perform all the duties which devolve upon him [or her] as a man [or woman] and a citizen.”22 Mann saw education as an “absolute right” or a “natural right.” He said, “We can cite no attributes or purpose of the divine nature, for giving birth to any human being, and then inflicting upon that being the curse of ignorance, of poverty and of vice, with all their attendant calamities.”23
SELF-EVIDENCE OF THE GOOD OF KNOWLEDGE IN NATURAL LAW The basic practical principle that knowledge is good need hardly ever be formulated as the premise for anyone’s actual practical reasoning. . . . Is it not the case that knowledge is really a good, an aspect of authentic human flourishing, and that the principle which expresses its value formulates a real (intelligent) reason for action? It seems clear that such, indeed, is the case, and that there are no sufficient reasons for doubting it to be so. The good of knowledge is self-evident, obviously. It cannot be demonstrated, but equally it needs no demonstration. —John Finnis
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The Struggle for Public Schools
Thus, natural ethics requires the creation and maintenance of public common schools in fulfillment of the state’s obligation to pass on to the succeeding generation all the wealth (knowledge) of the preceding generation. The paramount law of nature requires that children should come into possession of all knowledge of the earlier generation.24 Mann’s view of knowledge as property or wealth was not new. Madison, in the Federalist Papers, had broadly defined property to include “everything to which a man may attach a value and have a right. . . .”25 According to Madison, man has an “equal property in the free use of his facilities,” and his facilities encompass knowledge and learning.26 Similarly to Mann, Madison thought that knowledge was the most important property that man possesses, and each generation has the obligation through education to pass all that property on to succeeding generations. Public schools are the means by which the state ensures the efficient and just transfer of knowledge: “[t]he claim of a child, then, to a portion of the preexistent property begins with the first breath he draws. . . . He is to receive this, not in the form of lands, or of gold and silver, but in the form of knowledge and training to good habits.”27 Thus, Mann believed natural ethics required that the state has an obligation to every child to enact a code of laws establishing free public schools. These laws governing education become “the fundamental law of the State.” The laws of the public common school system are based on three propositions: 1. The successive generations of men taken collectively, constitute one great Commonwealth. 2. The property of this Commonwealth is pledged for the education of all its youth, up to such a point as will save them from poverty and vice, and prepare them for the adequate performance of their social and civil duties. 3. The successive holders of this property are trustees, bound to the faithful execution of their trust, by the most sacred obligations. . . .28 The obligation under these inviolate propositions that form the philosophical foundation for the intergenerational transfer of knowledge require the establishment of a system of public common schools.
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Aligned with Mann in the early nineteenth century was an extraordinary group of dedicated and effective leaders who as “public school men” emerged in several states. They argued against tuition in any shape or form and most importantly they maintained that the term free school should no longer mean merely a place where the poor were given a free education and all others paid tuition. Class distinctions, they argued, would be reduced if all children could be given a free education financed with revenues from taxes levied on everyone.29 This view was reflected in an 1822 report to the Kentucky legislature that advocated free common schools and specifically rejected the pauper school approach: “To be separated from the rest of the community as a distinct and inferior caste, and held out to the world as the objects of public charity, is a degradation too humiliating for the pride of freemen.”30
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The Struggle for Public Schools
The early struggle over public schools was fought with conviction by those on both sides. Cubberley described this era when public, free, nonsectarian, tax-supported schools were first given serious consideration, and there was much public debate between church and private school advocates and public school proponents: The second quarter of the nineteenth century may be said to have witnessed the battle for taxsupported, publicly controlled and directed, and nonsectarian common schools. In 1825 such schools were the distant hope of statesmen and reformers; in 1850 they were becoming an actuality in almost every northern State. The twenty-five years intervening marked a period of public agitation and educational propaganda; of many hard legislative fights; of a struggle to secure desired legislation, and then to hold what had been secured; of many bitter contests with church and private-school interests, which felt that their “vested rights” were being taken from them; and of occasional referenda in which the people were asked, at the next election, to advise the legislature as to what to do. Excepting the battle for the abolition of slavery, perhaps no question has ever been before the American people for settlement which caused so much feeling or aroused such bitter antagonisms. Old friends and business associates parted company over the
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question, lodges were forced to taboo the subject to avoid disruption, ministers and their congregations often quarreled over the question of free schools, and politicians avoided the issue. The friends of free schools were at first commonly regarded as fanatics, dangerous to the State, and the opponents of free schools were considered by them as old-time conservatives or as selfish members of society. . . . Many thought that tax-supported schools would be dangerous for the State, harmful to individual good, and thoroughly undemocratic. There was danger, too, of making education too common. Schools of any kind were, or should be, for the few, and chiefly for those who could afford private instruction. It was argued that education demands a leisure class and that the poor do not have the necessary leisure, that it was not possible for the government to provide a general educational system, and that all such proposals represented the deliberate confiscation of the property of one class in society for the benefit of another class. These and other arguments were well answered some years later by Horace Mann when he stated, at some length, the political and economic “Ground of the Free School System.” Others were afraid that free schools were only a bait, the real purpose being to “religiously traditionalize the children,” and then later unite Church and State. Many did not see the need for schools at all, and many more were in the frame of mind of the practical New England farmer who declared that “the bible and figgers is all I want my boys to know.” Strangely enough, the most vigorous opposition often came from the ignorant, improvident, handto-mouth laborers, who most needed schools, and free schools at that. Often those in favor of taxation were bitterly assailed, and even at times threatened with personal violence. Henry Barnard, who rendered such useful service in awakening Connecticut and Rhode Island, between 1837 and 1845, to the need for better schools, tells us that a member of the Rhode Island legislature told him that a bill providing a small state tax for schools, which he was then advocating, even if passed by the legislature, could not be enforced in Rhode Island at the point of the bayonet.31
Legislatures gradually accepted the idea of free or common schools for all and by statute began to require local school districts to tax themselves to support the public schools. In this early period, it became clear that the states must require rather than permit localities to establish free schools. Local control of education gradually became limited by state constitutions and by actions of state legislatures. Uniformity of
education across states, it was decided, would be better brought to fruition by a degree of central state planning rather than through completely decentralized local school control.32 By 1852, when Massachusetts enacted the first compulsory attendance law, the responsibility for public education was firmly lodged at the state level. The idea of free common schools was well established, but the implementation of the concept developed slowly. It remained for succeeding generations to deal with the pervasive issues of “uniformity” and “equality” which have grown to be as vital to the public school movement as the word freedom was originally.
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Defining the Public Schools
The development of the public school system was accompanied by a continuous string of legal controversies in every state in the nation. As a result, court decisions have, to a great extent, given form and substance to the philosophical base on which the public schools are founded. The courts have made it quite clear that “[p]ublic education is not merely a function of government; it is of government.”33 In legal theory, public schools exist not only to confer benefits on the individual but also, just as importantly, to advance civil society, for which they are necessary, indeed essential.34 Of such importance is the public education function that the state can, under certain conditions, limit parental control in order to advance the commonwealth.35 The rationale for the creation of a system of free public schools has been reiterated many times by the courts, expounding the importance of an educated citizenry for the general welfare of the people and for the protection of the state.36 Recognition of the role and importance of public schools to the well-being of the people and the state was expressed by the Illinois Supreme Court in 1914. This court declared that public schools were created: . . . not out of philanthropic motives, but out of a consideration of the essentials of good government. The conduct and maintenance of schools . . . are not undertaken from philanthropic or charitable motives, but for the protection, safety, and welfare of the citizens of the state in the interest of good government.37
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Defining the Public Schools
Similarly, it was said by the New Hampshire Supreme Court: The primary purpose of the maintenance of the common school system is the promotion of the general intelligence of the people constituting the body politic and thereby to increase the usefulness and efficiency of the citizens, upon which the government of society depends. Free schooling furnished by the state is not so much a right granted to pupils as a duty imposed upon them for the public good. If they do not voluntarily attend the schools provided for them, they may be compelled to do so. While most people regard the public schools as the means of great personal advantage to the pupils, the fact is too often overlooked that they are governmental means of protecting the state from the consequences of an ignorant and incompetent citizenship.38
This philosophy is stated in various ways by the decisions from other state supreme courts. The high court in Tennessee, for example, saw a need for a uniform system of public schools to promote the general welfare “by educating the people, and thus, by providing and securing a higher state of intelligence and morals, conserve the peace, good order, and well-being of society.”39
Education, the Balance-Wheel of Social Machinery, Horace Mann’s Twelfth Report (1848) The Capacities of Our Present School System to Improve the Pecuniary Condition and to Elevate the Intellectual and Moral Character of the Commonwealth
Under the Providence of God, our means of education are the grand machinery by which the “raw material” of human nature can be worked up into inventors and discoverers, into skilled artisans and scientific farmers, into scholars and jurists, into the founders of benevolent institutions, and the great expounders of ethical and theological science. By means of early education, those embryos of talent may be quickened, which will solve the difficult problems of political and economical law; and by them, too, the genius may be kindled which will blaze forth in the Poets of Humanity. . . . Without undervaluing any other human agency, it may be safely affirmed that the Common School, improved
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and energized, as it can easily be, may become the most effective and benignant of all the forces of civilization. Two reasons sustain this position. In the first place, there is universality in its operation, which can be affirmed of no other institution whatever. If administered in the spirit of justice and conciliation, all the rising generation may be brought within the circle of its reformatory and elevating influences. And, in the second place, the materials upon which it operates are so pliant and ductile as to be susceptible of assuming a greater variety of forms than any other earthly work of the Creator. . . . I proceed, then, in endeavoring to show how the true business of the schoolroom connects itself, and becomes identical, with the great interests of society. The former is the infant, immature state of those interests; the latter, their developed, adult state. As “the child is father to the man,” so may the training of the schoolroom expand into the institutions and fortunes of the State. . . . Now, surely, nothing but Universal Education can counter-work this tendency to the domination of capital and the servility of labor. If one class possesses all the wealth and the education, while the residue of society is ignorant and poor, it matters not by what name the relation between them may be called; the latter, in fact and in truth, will be the servile dependents and subjects of the former. But if education be equably diffused, it will draw property after it, by the strongest of all attractions; for such a thing never did happen, and never can happen, as that an intelligent and practical body of men should be permanently poor. . . . Education, then, beyond all other devices of human origin, is the great equalizer of the conditions of men—the balance-wheel of the social machinery. I do not here mean that it so elevates the moral nature as to make men disdain and abhor the oppression of their fellowmen. This idea pertains to another of its attributes. But I mean that it gives each man the independence and the means, by which he can resist the selfishness of other men. . . . For the creation of wealth, then—for the existence of a wealthy people and a wealthy nation—intelligence is the grand condition. The number of improvers will increase, as the intellectual constituency, if I may so call it, increases. in former times, and in most parts of
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the world even at the present day, not one man in a million has ever had such a development of mind, as made it possible for him to become a contributor to art or science. Let this development precede, and contributions, numberless, and of inestimable value, will be sure to follow. That political economy, therefore, which busies itself about capital and labor, supply and demand, interest and rents, favorable and unfavorable balances of trade; but leaves out of account the element of a wide-spread mental development, is nought but stupendous folly. The greatest of all the arts in political economy is to change a consumer into a producer; and the next greatest is to increase the producing power—an end to be directly attained, by increasing his intelligence. . . .
2.
3.
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Education Provisions of State Constitutions
Some state constitutions have very general provisions for education, requiring that a system of education be established and maintained, whereas others are more specific, including adjectives such as free, thorough and efficient, uniform, suitable, or adequate. Such words are “terms of art” that, when interpreted by the courts, circumscribe the basis to which the legislature must conform in establishing a public school system. Although legislatures are given general authority to govern the schools and may go beyond the minimal constitutional mandates, the constitutional prescription must be satisfied. Where legislators fail to fulfill the constitutional requirements, their acts may be invalidated by the courts. The fact that education is specifically set out in state constitutions as a required state function gives education a preferential position relative to other state governmental functions that are not so mentioned. Provisions for the establishment and maintenance of public schools are enunciated differently in the various state constitutions, yet there exist certain underlying principles that are generally common to all. These may be summarized as follows: 1. The legislature is required to bear the responsibility for enactment of laws to govern the public or common schools. This obligation cannot be averted or delegated to other state or local agencies.
4.
5.
Legislatures may provide for local discretion but must ultimately bear the responsibility for the maintenance of a public school system within the context of the wording and meaning of the education provision of the state constitution. The public schools, by and large, are considered to be a cohesive unit: one organization or organic whole whose particular organizational pattern and subparts are within the prerogative of the legislature. The word system, which is used in most constitutions, requires a measure of orderliness and uniformity regardless of the number of local school districts, implies a unitary cohesiveness, and is not intended to create merely a conglomeration of locally independent school agencies. The schools as public entities are to be of the body politic of the state, controlled by the public and governed by the people. Early American experiments, ranging from church and private schools to pauper, rate-bill, and academy schools, quasi-private or semipublic in nature, were rejected as constitutional alternatives to public schools. The various devices to foster control by private interests, reducing public participation and preventing full access by the people, run counter to the ideal of a public school. The nature of the public school is that it be free and common to all, with no charges to limit access. Early attempts to create public schools were hindered by the reluctance of legislatures to tax at a level of sufficiency to operate a completely public system. The idea that education is a family or private concern and should be paid for out of private resources has resulted in imposition of various fees levied on the child’s family; such fees can potentially harm access and are contrary to the philosophical foundation on which public schools are premised. To sustain full participation and access by all the people requires that the schools be financed by all the people through common taxation. The concept of public common schools as a state governmental enterprise requires that tax resources be allocated throughout the state in a manner that will ensure that the quality of a child’s education will not be dependent on private or personal influence or wealth nor on the financial capabilities
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Education Provisions as Limitations on Legislatures
of the locality or political subdivision of the state. State constitutions do not envisage a system of schools with widely variant educational opportunity brought about by either political vicissitude or the vagaries of local fiscal fortune. Each of these principles, to varying degrees, has been emphasized by judicial interpretation of the education provisions in state constitutions. The nomenclature in state constitutions requiring the creation and maintenance of public schools is terminology of art, most of which has a long historical and legal tradition as to usage and intent. These general principles establishing public schools are implicit in the meaning of words such as to “maintain a general, suitable and efficient system of free schools,” as is found in article XIV of the Arkansas Constitution, or “a general uniform and thorough system,” as is included in the Montana Constitution, article XII, § 1. Such wording of education provisions is replete with significant implications for the conduct of education. For example, the New Jersey Supreme Court held that the words “thorough and efficient” defining “system” demanded that the state provide equal educational opportunity for all children of the state.40 These constitutional provisions can be classified in different ways, but one convenient categorization suggests a minimum of three types.41 The first of these can be called the adjective or gloss group, wherein the constitution employs words of amplification such as efficient, uniform, or thorough to specify the qualities of the system required. The second category can simply be called the system group. Here, the state constitution mandates the establishment and maintenance of a system but does not prescribe the type of system other than that it be free, public, or common. An example of this type is the California Constitution, which requires that the state provide for a “system of common schools.” A third category is what Mize calls the cherish group, or the New England category. A better term may be virtue, because in this type of provision the virtues of education are lauded and commended, but there is no positive requirement mandating any particular action by the legislature. In this category, the New Hampshire Constitution is one
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of the most descriptive, stating that “[I]t shall be the duty of the legislators and magistrates in all future periods of the government, to cherish the interests of literature and the sciences, and all seminaries and public schools.” Including New Hampshire, there are at least four states with virtue provisions: Massachusetts, Rhode Island, and Virginia. Three other states that can be classified as both system and virtue states are California, Vermont, and Connecticut. Virginia rests comfortably in all three categories by reason of some rather unique wording in its bill of rights42 that is separate from the education provision of its constitution.43 This provision, Section 15 of the Virginia Bill of Rights, enacted in 1971, taken from Jefferson’s bill for the More General Diffusion of Knowledge, 1779, states: That free government rests, as does all progress, upon the broadest possible diffusion of knowledge, and that the Commonwealth should avail itself of those talents which nature has sown so liberally among its people by assuring the opportunity for their fullest development by an effective system of education throughout the Commonwealth.44
This admonishment to the Virginia legislature of the value of widespread knowledge in concert with the requirement that the people be given “opportunity for their fullest development” combines the rationale of the virtue provisions with the qualitative standards of the adjectival provisions.
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Education Provisions as Limitations on Legislatures
Historically, state courts have seldom intervened to limit legislative prerogative in interpreting the intent of “education provisions” of state constitutions. Education provisions are typically those that place an affirmative constitutional obligation on the legislature to create a school system. The courts have most often followed the philosophy expressed by an Illinois court that refused to substitute its judgment for the legislature’s, saying that “[t]he efficiency and fairness of a state system is for the determination of the legislature.”45 Typically, the courts have not viewed the education provisions of state constitutions as limitations on the legislature.
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The education provisions were not considered to be limitations, but merely elaborations on enabling provisions to be used and defined as the legislature thought necessary. This attitude is expressed by a 1926 Virginia court that said, “While the Constitution of the state provides, in mandatory terms, that the Legislature shall establish and maintain public free schools, there is neither mandate nor inhibition in the provisions as to the regulation thereof. The Legislature, therefore, has the power to enact any legislation in regard to the conduct, control, and regulation of the public free schools, which does not deny to the citizen the constitutional right to enjoy life and liberty, to pursue happiness and to acquire property.”46 Thus, words in a state constitution defining the type of education the people required were not to be interpreted by the courts as limitations on legislative prerogative. The power of the legislature would not generally be questioned unless the legislation transgressed on the more important freedom provisions such as the right to life, liberty, happiness, and property. Constitutions restrict the reach of the state by a proper specification of what it may and may not do. —Richard S. Kay
Lately, however, this view has changed. The courts have become more assertive and have begun to more carefully scrutinize legislation in light of the education provisions. In several instances the courts have held state methods of financing the schools to be unconstitutional as violative of these provisions (see Chapter 20 on school finance). Such cases are beginning to establish an imposing array of precedents, which give definition to terms such as thorough, efficient, throughout, uniform, and a host of other terms. A state supreme court, in extreme circumstances, may even determine that the entire “system” of public schools created by the legislature is violative of the education provisions in the state constitution. This was the situation in the landmark Kentucky case of Rose v. Council for Better Education, Inc. (see below), where the state’s supreme court declared that, “the result of our decision is that Kentucky’s entire system of common schools is unconstitutional.”
Legislature Fails Constitutional Requirement to Establish an Efficient System of Common Schools
Rose v. Council for Better Education, Inc. Supreme Court of Kentucky, 1989. 790 S.W. 2d 186.
STEPHENS, Chief Justice. The issue we decide on this appeal is whether the Kentucky General Assembly has complied with its constitutional mandate to “provide an efficient system of common schools throughout the state.” In deciding that it has not, we intend no criticism of the substantial efforts made by the present General Assembly and by its predecessors, nor do we intend to substitute our judicial authority for the authority and discretion of the General Assembly. We are, rather, exercising our constitutional duty in declaring that, when we consider the evidence in the record, and when we apply the constitutional requirement of Section 183 to that evidence, it is crystal clear that the General Assembly has fallen short of its duty to enact legislation to provide for an efficient system of common schools throughout the state. In a word, the present system of common schools in Kentucky is not an “efficient” one in our view of the clear mandate of Section 183. The common school system in Kentucky is constitutionally deficient. In reaching this decision, we are ever mindful of the immeasurable worth of education to our state and its citizens, especially to its young people. The framers of our constitution intended that each and every child in this state should receive a proper and an adequate education, to be provided for by the General Assembly. This opinion dutifully applies the constitutional test of Section 183 to the existing system of common schools. We do no more, nor may we do any less. . . . The overall effect of appellants’ evidence is a virtual concession that Kentucky’s system of common schools is underfunded and inadequate; is fraught with inequalities and inequities
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Education Provisions as Limitations on Legislatures
throughout the 168 local school districts; is ranked nationally in the lower 20–25% in virtually every category that is used to evaluate educational performance; and is not uniform among the districts in educational opportunities. When one considers the evidence presented by the appellants, there is little or no evidence to even begin to negate that of the appellees. The tidal wave of the appellees’ evidence literally engulfs that of the appellants. In spite of the Minimum Foundation Program and the Power Equalization Program, there are wide variations in financial resources and dispositions thereof which result in unequal educational opportunities throughout Kentucky. The local districts have large variances in taxable property per student. Even a total elimination of all mismanagement and waste in local school districts would not correct the situation as it now exists. A substantial difference in the curricula offered in the poorer districts contrasts with that of the richer districts, particularly in the areas of foreign language, science, mathematics, music, and art. The achievement test scores in the poorer districts are lower than those in the richer districts and expert opinion clearly established that there is a correlation between those scores and the wealth of the district. Student–teacher ratios are higher in the poorer districts. Moreover, although Kentucky’s per capita income is low, it makes an even lower per capita effort to support the common schools. Students in property poor districts receive inadequate and inferior educational opportunities as compared to those offered to those students in the more affluent districts. . . . In a few simple, but direct words, the framers of our present Constitution set forth the will of the people with regard to the importance of providing public education in the Commonwealth. The General Assembly shall, by appropriate legislation, provide for an efficient system of common schools throughout the State. Ky. Const. Sec. 183. Several conclusions readily appear from a reading of this section. First, it is the obligation, the sole obligation, of the General Assembly to provide for a system of common schools in Kentucky. The obligation to so provide is clear and unequivocal and is, in effect, a constitutional mandate. Next, the school system must
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be provided throughout the entire state, with no area (or its children) being omitted. The creation, implementation, and maintenance of the school system must be achieved by appropriate legislation. Finally, the system must be an efficient one. It is, of course, the last “conclusion” that gives us pause and requires study and analysis. What, indeed, is the meaning of the word “efficient” as used in Section 183? . . . In language which brings together and reemphasizes earlier decisions, we said, The fundamental mandate of the Constitution and Statutes of Kentucky is that there shall be equality and that all public schools shall be nonpartisan and nonsectarian. Uniformity does not require equal classification but it does demand that there shall be a substantially uniform system and equal school facilities without discrimination as between different sections of a district or a county.
The lack of uniformity and the unequal educational opportunity existing in the county was said to constitute “a violation of both the spirit and intent of Section 183 of our State Constitution.” That reasoning therein applies, a fortiori, to the entire state system of common schools. Public schools must be efficient, equal, and substantially uniform. As can be seen, this Court, since the adoption of the present Constitution, has, in reflecting on Section 183, drawn several conclusions: 1. The General Assembly is mandated, is duty bound, to create and maintain a system of common schools—throughout the state. 2. The expressed purpose of providing such service is vital and critical to the well-being of the state. 3. The system of common schools must be efficient. 4. The system of common schools must be free. 5. The system of common schools must provide equal educational opportunities for all students in the Commonwealth. 6. The state must control and administer the system. 7. The system must be, if not uniform, “substantially uniform” with respect to the state as a whole. 8. The system must be equal to and for all students.
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Numerous well-qualified experts testified in this case. They were all well educated, experienced teachers, educators, or administrators; and all were familiar with the Kentucky system of common schools and with other states’ and national school issues. Dr. Richard Salmon testified that the concept of efficiency was a three-part concept. First, the system should impose no financial hardship or advantage on any group of citizens. Further, local school districts must make comparable tax efforts. Second, resources provided by the system must be adequate and uniform throughout the state. Third, the system must not waste resources. Dr. Kern Alexander opined that an efficient system is one which is unitary. It is one in which there is uniformity throughout the state. It is one in which equality is a hallmark and one in which students must be given equal educational opportunities, regardless of economic status, or place of residence. He also testified that “efficient” involves pay and training of teachers, school buildings, other teaching staff, materials, and adequacy of all educational resources. Moreover, he, like Dr. Salmon, believed that “efficient” also applies to the quality of management of schools. Summarizing Dr. Alexander’s opinion, an efficient system is unitary, uniform, adequate, and properly managed. The definitions of “efficient” were documented and supported by numerous national and local studies, prepared and authorized by many of the giants of the education profession. The primary expert for the appellees was a local school superintendent who felt that an efficient system is one which is operated as best as can be with the money that was provided. We reject such a definition, which could result in a system of common schools, efficient only in the uniformly deplorable conditions it provides throughout the state. In summary, the experts in this case believed that an “efficient” system of common schools should have several elements: 1. The system is the sole responsibility of the General Assembly. 2. The tax effort should be evenly spread. 3. The system must provide the necessary resources throughout the state—they must be uniform.
4. The system must provide an adequate education. 5. The system must be properly managed. We now hone in on the heart of this litigation. In defining “efficient,” we use all the tools that are made available to us. In spite of any protestations to the contrary, we do not engage in judicial legislating. We do not make policy. We do not substitute our judgment for that of the General Assembly. We simply take the plain directive of the Constitution, and, armed with its purpose, we decide what our General Assembly must achieve in complying with its solemn constitutional duty. Any system of common schools must be created and maintained with the premise that education is absolutely vital to the present and to the future of our Commonwealth . . . The sole responsibility for providing the system of common schools is that of our General Assembly. It is a duty—it is a constitutional mandate placed by the people on the 138 members of that body who represent those selfsame people. The General Assembly must not only establish the system, but it must monitor it on a continuing basis so that it will always be maintained in a constitutional manner. The state must carefully supervise it, so that there is no waste, no duplication, no mismanagement, at any level. The system of common schools must be adequately funded to achieve its goals. The system of common schools must be substantially uniform throughout the state. Each child, every child, in this Commonwealth must be provided with an equal opportunity to have an adequate education. Equality is the key word here. The children of the poor and the children of the rich, the children who live in the poor districts and the children who live in the rich districts must be given the same opportunity and access to an adequate education. This obligation cannot be shifted to local counties and local school districts. . . . A child’s right to an adequate education is a fundamental one under our Constitution. The General Assembly must protect and advance that right. We concur with the trial court that an efficient system of education must have as its goal to provide each and every child with at least the seven following capacities: (i) sufficient oral and written communication skills to enable
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Education Provisions as Limitations on Legislatures
students to function in a complex and rapidly changing civilization; (ii) sufficient knowledge of economic, social, and political systems to enable the student to make informed choices; (iii) sufficient understanding of governmental processes to enable the student to understand the issues that affect his or her community, state, and nation; (iv) sufficient self-knowledge and knowledge of his or her mental and physical wellness; (v) sufficient grounding in the arts to enable each student to appreciate his or her cultural and historical heritage; (vi) sufficient training or preparation for advanced training in either academic or vocational fields so as to enable each child to choose and pursue life work intelligently; and (vii) sufficient levels of academic or vocational skills to enable public school students to compete favorably with their counterparts in surrounding states, in academics, or in the job market. The essential, and minimal, characteristics of an “efficient” system of common schools may be summarized as follows: 1. The establishment, maintenance, and funding of common schools in Kentucky is the sole responsibility of the General Assembly. 2. Common schools shall be free to all. 3. Common schools shall be available to all Kentucky children. 4. Common schools shall be substantially uniform throughout the state. 5. Common schools shall provide equal educational opportunities to all Kentucky children, regardless of place of residence or economic circumstances. 6. Common schools shall be monitored by the General Assembly to assure that they are operated with no waste, no duplication, no mismanagement, and with no political influence. 7. The premise for the existence of common schools is that all children in Kentucky have a constitutional right to an adequate education. 8. The General Assembly shall provide funding which is sufficient to provide each child in Kentucky an adequate education. 9. An adequate education is one which has as its goal the development of the seven capacities recited previously. We have described, infra, in some detail, the present system of common schools. We have noted the overall inadequacy of our system of
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education, when compared to national standards and to the standards of our adjacent states. We have recognized the great disparity that exists in educational opportunities throughout the state. We have noted the great disparity and inadequacy of financial effort throughout the state. In spite of the past and present efforts of the General Assembly, Kentucky’s present system of common schools falls short of the mark of the constitutional mandate of “efficient.” When one juxtaposes the standards of efficiency as derived from our Constitution, the cases decided thereunder, the persuasive authority from our sister states and the opinion of experts, with the virtually unchallenged evidence in the record, no other decision is possible. We have decided this case solely on the basis of our Kentucky Constitution, Section 183. We find it unnecessary to inject any issues raised under the United States Constitution or the United States Bill of Rights in this matter. We decline to issue any injunctions, restraining orders, writs of prohibition, or writs of mandamus. We have decided one legal issue—and one legal issue only—viz., that the General Assembly of the Commonwealth has failed to establish an efficient system of common schools throughout the Commonwealth. Lest there be any doubt, the result of our decision is that Kentucky’s entire system of common schools is unconstitutional. There is no allegation that only part of the common school system is invalid, and we find no such circumstance. This decision applies to the entire sweep of the system—all its parts and parcels. This decision applies to the statutes creating, implementing and financing the system and to all regulations, etc., pertaining thereto. . . . Since we have, by this decision, declared the system of common schools in Kentucky to be unconstitutional, Section 183 places an absolute duty on the General Assembly to re-create, reestablish a new system of common schools in the Commonwealth. As we have said, the premise of this opinion is that education is a basic, fundamental constitutional right that is available to all children within this Commonwealth. The General Assembly should begin with the same premise as it goes about its duty. The system, as we have said, must be efficient, and the criteria we have set out are binding on the General
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Assembly as it develops Kentucky’s new system of common schools. . . .
CASE NOTE Some state courts have struck down state public school financing programs as violative of education provisions in those state constitutions: (See Meira Schulman Ferziger, “Validity of Public School Funding Systems,” American Law Reports, 110 A.L.R. 5th, 2003, updated, Thomson/West 2008).
Legislature Transgressed Its Constitutional Powers in Enacting Voucher Funding of Private Schools
John Ellis “Jeb” Bush v. Holmes Supreme Court of Florida, 2006 206 Ed. Law Rep. 756, 919 So. 2d 392
PARIENTE, C. J. The issue we decide is whether the State of Florida is prohibited by the Florida Constitution from expending public funds to allow students to obtain a private school education in kindergarten through grade twelve, as an alternative to a public school education. The law in question authorizes a system of school vouchers and is known as the Opportunity Scholarship Program (OSP). Under the OSP, a student from a public school that fails to meet certain minimum state standards has two options. The first is to move to another public school with a satisfactory record under the state standards. The second option is to receive funds from the public treasury, which would otherwise have gone to the student’s school district, to pay the student’s tuition at a private school. The narrow question we address is whether the second option violates a part of the Florida Constitution requiring the state to both provide for “the education of all children residing within its borders” and provide “by law for a uniform, efficient, safe, secure, and high quality system of free public schools that allows
students to obtain a high quality education.” Art. IX, § 1(a), Fla. Const. Our inquiry begins with the plain language of the second and third sentences of article IX, section 1(a) of the Constitution. The relevant words are these: “It is . . . a paramount duty of the state to make adequate provision for the education of all children residing within its borders.” Using the same term, “adequate provision,” article IX, section 1(a) further states: “adequate provision shall be made by law for a uniform, efficient, safe, secure, and high quality system of free public schools.” For reasons expressed more fully below, we find that the OSP violates this language. It diverts public dollars into separate private systems parallel to and in competition with the free public schools that are the sole means set out in the Constitution for the state to provide for the education of Florida’s children. This diversion not only reduces money available to the free schools, but also funds private schools that are not “uniform” when compared with each other or the public system. Many standards imposed by law on the public schools are inapplicable to the private schools receiving public monies. In sum, through the OSP the state is fostering plural, nonuniform systems of education in direct violation of the constitutional mandate for a uniform system of free public schools. Because we determine that the OSP is unconstitutional as a violation of Article IX, section 1(a), we find it unnecessary to address whether the OSP is a violation of the “no aid” provision in Article I, section 3 of the Constitution, as held by the First District. . . . The OSP provides that a student who attends or is assigned to attend a failing public school may attend a higher performing public school or use a scholarship provided by the state to attend a participating private school. See § 1002.38(2)(a), (3), Fla. Stat. (2005). . . . In 1998, . . . the Constitutional Revision Commission proposed, and the citizens of this state approved, an amendment to Article IX, section 1 to make clear that education is a “fundamental value” and “a paramount duty of the state,” and to provide standards by which to measure the adequacy of the public school education provided by the state: The education of children is a fundamental value of the people of the State of Florida. It is, therefore, a paramount duty of the state to make adequate provision for
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Education Provisions as Limitations on Legislatures the education of all children residing within its borders. Adequate provision shall be made by law for a uniform, efficient, safe, secure, and high quality system of free public schools that allows students to obtain a high quality education and for the establishment, maintenance, and operation of institutions of higher learning and other public education programs that the needs of the people may require. Art. IX, § 1(a), Fla. Const. [emphasis supplied]
A commentary on the 1998 amendment by the executive director and the General Counsel of the Constitution Revision Commission explained that the amendment revised section 1 by (1) making education a “fundamental value,” (2) making it a paramount duty of the state to make adequate provision for the education of children, and (3) defining “adequate provisions” by requiring that the public school system be “efficient, safe, secure, and high quality.” . . . The “paramount duty” language represents a return to the 1868 Constitution, which provided that “[I]t is the paramount duty of the State to make ample provisions for the education of all children residing within its borders, without distinction or preference.”. . . The addition of “efficient, safe, secure, and high quality” represents an attempt by the 1997–98 Constitution Revision Commission to provide constitutional standards to measure the “adequacy” provision found in the second sentence of section 1. The action of the commission was in direct response to recent court actions seeking a declaration that Article IX, section 1 created a fundamental right to an adequate education, which the state had arguably violated by failing to provide sufficient resources to public education. . . . In our review of the constitutionality of the OSP, “[t]he political motivations of the legislature, if any, in enacting [this legislation] are not a proper matter of inquiry for this Court. We are limited to measuring the Act against the dictates of the Constitution.” . . . However, in this case we conclude that the OSP is in direct conflict with the mandate in Article IX, section 1(a) that it is the state’s “paramount duty” to make adequate provision for education and that the manner in which this mandate must be carried out is “by law for a uniform, efficient, safe, secure, and high quality system of free public schools.”
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This Court has long recognized the constitutional obligation that Florida’s education article places upon the legislature: Article XII, section 1, constitution [the predecessor to Article IX, section 1] commands that the Legislature shall provide for a uniform system of public free schools and for the liberal maintenance of such system of free schools. This means that a system of public free schools . . . shall be established upon principles that are of uniform operation throughout the State and that such system shall be liberally maintained. State ex rel. Clark v. Henderson.
. . . Currently, Article IX, section 1(a), which is stronger than the provision discussed in Henderson, contains three critical components with regard to public education. The provision (1) declares that the “education of children is a fundamental value of the people of the State of Florida,” (2) sets forth an education mandate that provides that it is “a paramount duty of the state to make adequate provision for the education of all children residing within its borders,” and (3) sets forth how the state is to carry out this education mandate, specifically, that “[a]dequate provision shall be made by law for a uniform, efficient, safe, secure, and high quality system of free public schools.” [emphasis supplied] . . . Article IX, section 1(a) is a limitation on the legislature’s power because it provides both a mandate to provide for children’s education and a restriction on the execution of that mandate. The second and third sentences must be read in pari materia, rather than as distinct and unrelated obligations. This principle of statutory construction is equally applicable to constitutional provisions. . . . The second sentence of Article IX, section 1(a) provides that it is the “paramount duty of the state to make adequate provision for the education of all children residing within its borders.” The third sentence of Article IX, section 1(a) provides a restriction on the exercise of this mandate by specifying that the adequate provision required in the second sentence “shall be made by law for a uniform, efficient, safe, secure and high quality system of free public schools” (emphasis supplied). The OSP violates this provision by devoting the state’s resources to the education of children within our state through means other than a system of free public schools.
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The principle of construction, “expressio unius est exclusio alterius,” or “the expression of one thing implies the exclusion of another,” leads us to the same conclusion. This Court has stated: [W]here the Constitution expressly provides the manner of doing a thing, it impliedly forbids its being done in a substantially different manner. Even though the Constitution does not in terms prohibit the doing of a thing in another manner, the fact that it has prescribed the manner in which the thing shall be done is itself a prohibition against a different manner of doing it. Therefore, when the Constitution prescribes the manner of doing an act, the manner prescribed is exclusive, and it is beyond the power of the Legislature to enact a statute that would defeat the purpose of the constitutional provision. . . . Although parents certainly have the right to choose how to educate their children, Article IX, section 1(a) does not, as the Attorney General asserts, establish a “floor” of what the state can do to provide for the education of Florida’s children. The provision mandates that the state’s obligation is to provide for the education of Florida’s children, specifies that the manner of fulfilling this obligation is by providing a uniform, high quality system of free public education, and does not authorize additional equivalent alternatives. The Constitution prohibits the state from using public monies to fund a private alternative to the public school system, which is what the OSP does. Specifically, the OSP transfers tax money earmarked for public education to private schools that provide the same service—basic primary education. Thus, contrary to the defendants’ arguments, the OSP does not supplement the public education system. Instead, the OSP diverts funds that would otherwise be provided to the system of free public schools that is the exclusive means set out in the Constitution for the Legislature to make adequate provision for the education of children. Section 1002.38(6)(f), Florida Statutes (2005), specifically requires the Department of Education to “transfer from each school district’s appropriated funds the calculated amount from the Florida Education Finance Program and authorized categorical accounts to a separate account for the Opportunity Scholarship Program.” Even if the tuition paid to the private school is less than the amount transferred from the school
district’s funds and therefore does not result in a dollar-for-dollar reduction, as the dissent asserts, it is of no significance to the constitutionality of public funding of private schools as a means to making adequate provision for the education of children. Although opportunity scholarships are not now widely in use, if the dissent is correct as to their constitutionality, the potential scale of programs of this nature is unlimited. Under the dissent’s view of the Legislature’s authority in this area, the state could fund a private school system of indefinite size and scope as long as the state also continued to fund the public schools at a level that kept them “uniform, efficient, safe, secure, and high quality.” However, because voucher payments reduce funding for the public education system, the OSP by its very nature undermines the system of “high quality” free public schools that are the sole authorized means of fulfilling the constitutional mandate to provide for the education of all children residing in Florida. The systematic diversion of public funds to private schools on either a small or large scale is incompatible with Article IX, section 1(a). In addition to specifying that a system of free public schools is the means for complying with the mandate to provide for the education of Florida’s children, Article IX, section 1(a) also requires that this system be “uniform.” The OSP makes no provision to ensure that the private school alternative to the public school system meets the criterion of uniformity. In fact, in a provision directing the Department of Education to establish and maintain a database of private schools, the legislature expressly states that it does not intend “to regulate, control, approve, or accredit private educational institutions.” § 1002.42(2)(h), Fla. Stat. (2005). This lack of oversight is also evident in section 1001.21, which creates the office of Private Schools and Home Education Programs within the Department of Education but provides that this office “ha[s] no authority over the institutions or students served.” § 1001.21(1), Fla. Stat. (2005). Further, although the parent of a student participating in the OSP must ensure that the student “takes all statewide assessments” required of a public school student, § 1002.38(5)(c), the private school’s curriculum and teachers are not subject to the same standards as those in force in public
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Education as a Fundamental Right under State Constitutions
schools. For example, only teachers possessing bachelor’s degrees are eligible to teach at public schools, but private schools may hire teachers without bachelor’s degrees if they have “at least 3 years of teaching experience in public or private schools, or have special skills, knowledge, or expertise that qualifies them to provide instruction in subjects taught.” § 1002.38(4)(g), Fla. Stat. (2005). In addition, public school teachers must be certified by the state. To obtain this certification, teachers must meet certain requirements that include having “attained at least a 2.5 overall grade point average on a 4.0 scale in the applicant’s major field of study” and having demonstrated a mastery of general knowledge, subject area knowledge, and professional preparation and education competence. Regarding curriculum, public education instruction is based on the “Sunshine State Standards” that have been “adopted by the State board of education and delineate the academic achievement of students, for which the state will hold schools accountable.” § 1003.41, Fla. Stat. (2005). Public schools are required to teach all basic subjects as well as a number of other diverse subjects, among them the contents of the Declaration of Independence, the essentials of the United States Constitution, the elements of civil government, Florida state history, AfricanAmerican history, the history of the Holocaust, and the study of Hispanic and women’s contributions to the United States. Eligible private schools are not required to teach any of these subjects. In addition to being “academically accountable to the parent,” a private school participating in the OSP is subject only “to the . . . curriculum . . . criteria adopted by an appropriate nonpublic school accrediting body.” There are numerous nonpublic school accrediting bodies that have “widely variant quality standards and program requirements.” Thus, curriculum standards of eligible private schools may vary greatly depending on the accrediting body, and these standards may not be equivalent to those required for Florida public schools. In all these respects, the alternative system of private schools funded by the OSP cannot be deemed uniform in accordance with the mandate in Article IX, section 1(a). . . .
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In sum, Article IX, section 1(a) provides for the manner in which the state is to fulfill its mandate to make adequate provision for the education of Florida’s children—through a system of public education. The OSP contravenes this constitutional provision because it allows some children to receive a publicly funded education through an alternative system of private schools that are not subject to the uniformity requirements of the public school system. The diversion of money not only reduces public funds for a public education but also uses public funds to provide an alternative education in private schools that are not subject to the “uniformity” requirements for public schools. Thus, in two significant respects, the OSP violates the mandate set forth in Article IX, section 1(a). We do not question the basic right of parents to educate their children as they see fit. We recognize that the proponents of vouchers have a strongly held view that students should have choices. Our decision does not deny parents recourse to either public or private school alternatives to a failing school. Only when the private school option depends upon public funding is choice limited. This limit is necessitated by the constitutional mandate in Article IX, section 1(a), which sets out the state’s responsibilities in a manner that does not allow the use of state monies to fund a private school education. . . . In order not to disrupt the education of students who are receiving vouchers for the current school year, our decision shall have prospective application to commence at the conclusion of the current school year. It is so ordered.
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Education as a Fundamental Right under State Constitutions
In interpreting their own state constitutions, the highest courts in several states have held that education is a fundamental right. Other state courts have ruled that it is not, whereas others remain noncommittal. If a court determines that a state function is fundamental, it effectively elevates that particular function to a unique governmental status, and fundamentality declares that each individual has a constitutional
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entitlement to have that right protected by the courts. It may also be interpreted to mean that the public as a whole has an entitlement to a particular governmental benefit. State constitutions, unlike the federal constitution, have within their framework a requirement that the legislatures provide for education. As noted previously in the chapter, the impetus for these state provisions for education flowed out of the enlightened ideals of the nation’s founders in the original colonies, and later in the expansion of those ideals to the new states through the land grants of the national domain, the ordinances of 1785 and 1787, and the respective Enabling Acts of statehood. What exactly is a fundamental right? A fundamental right is inherent in the individual and constitutes a protected claim that need not be earned; rather, it is immanent in the human being as an entitlement.47 A fundamental right has its foundation in moral law. If education is a fundamental right, then everyone is entitled to obtain it by virtue of being human. As Henkin has pointed out, “When a society recognizes that a person has a right, it affirms, legitimates, and justifies that entitlement, and incorporates and establishes it in the society’s system of values, giving it important weight in competition with other societal values.”48 Individual or human rights that carry the appellation of “fundamental” are therefore basic and essential to the life and dignity of each individual.49 Even fundamental rights are not absolute and can, therefore, be abridged; but to override them requires special circumstances by which the government must show that society at large is in some way enhanced by the denial of an individual’s right.
FUNDAMENTAL RIGHT A right is a morally fundamental right if it is justified on the ground that it serves the rightholder’s interest in having that right inasmuch as that interest is considered to be of ultimate value, i.e., inasmuch as the value of that interest does not derive from some other interest of the right-holder or of other persons. —Joseph Raz
A fundamental right enjoys a special place in the social contract between the individual and the state. Standing at the nexus of the social contract, a right enjoys a prima facie or presumptive inviolability, and can “trump” other less important public goods. 50 Individual human rights cannot be lightly denied or sacrificed merely because the majority of society is inconvenienced or has preference or disposition to deny the right; a fundamental right can only be denied for a compelling reason. In state constitutions, the fundamentality of education may be derived from two sources: (1) an education clause in the body or frame of the constitution that requires that the legislature provide for education, public school, or a public school system (i.e., “the legislature shall”); or (2) an equal protection clause or its equivalent in a state bill of rights that prohibits discrimination. If a state supreme court adjudicates an education issue under the first, there may be no necessity to reach a direct conclusion regarding fundamentality because a flat affirmative constitutional provision placing a duty on a legislature (“shall provide for education”) may ipso facto be of sufficient legal magnitude to clearly provide fundamentality. Yet, generally, fundamentality cannot be assumed unless the court so recognizes and pronounces. With regard to the second source, a general state equality or equal protection clause may be involved to assert a right against discrimination. If this avenue is pursued, the plaintiffs must show that they are a protected class that is suffering from deprivation of a state benefit. If the state benefit is found to be inconsequential, then discrimination is irrelevant; however, if the benefit is adjudged to be fundamental, the state has the onus of proving that disparities in benefits are necessary or compelling. If the plaintiffs are successful, the state is subject to close judicial scrutiny to ascertain whether the legislature had a compelling reason to act as it did. The viewpoints of the respective state supreme courts regarding the fundamentality of education are largely determined by how the courts apply these two aspects of state constitutions or how the plaintiffs plead their cases. It is evident from this sample of state court decisions that whether or not education is found to be a fundamental constitutional right is very
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Education as a Fundamental Right under State Constitutions
state specific. Some courts loosely interpret what appears to be definitive constitutional language with the result that legislatures are given almost unlimited prerogatives with very minor constitutional restraints. Moreover, courts may apply widely varying standards to legislative duties and responsibilities, even though the respective constitutional provisions are quite similar. However, in spite of the varying interpretations, it appears that there has been a general evolution, over a rather short time, of the law in testing legislative action under state constitutional requirements. Before the advent of these precedents, the education provisions in state constitutions rested largely dormant, with little meaning. Today, the interpretations of these state constitutional provisions flow continuously from the courts, forming a rather imposing body of law that protects the public and the individual. Chapter 20 discusses the fundamentality question in greater detail as it affects the equitable funding of public schools. However, the following Claremont case provides excellent discussion of fundamentality, meriting consideration at this time.
Fundamental Right of Education Requires Adequate Financing by Legislature
Claremont School District v. Governor Supreme Court of New Hampshire, 1997. 142 N.H. 462, 703 A. 2d 1353.
BROCK, Chief Justice. In this appeal we hold that the present system of financing elementary and secondary public education in New Hampshire is unconstitutional. To hold otherwise would be to effectively conclude that it is reasonable, in discharging a State obligation, to tax property owners in one town or city as much as four times the amount taxed to others similarly situated in other towns or cities. This is precisely the kind of taxation and
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fiscal mischief from which the framers of our State Constitution took strong steps to protect our citizens. . . . At the present time, the State places the responsibility for providing elementary and secondary public education on local school districts. State statutes, rules, and regulations delineate the requirements to be followed by school districts. . . . To comply with the State’s requirements, school districts must raise money for their schools with revenue collected from real estate taxes. . . . . . . The plaintiffs argue that the school tax is a unique form of the property tax mandated by the State to pay for its duty to provide an adequate education and that the State controls the process and mechanism of taxation. Because of the purpose of the tax and the control exerted by the State, the plaintiffs contend that the school tax is a State tax that should be imposed at a uniform rate throughout the State. . . . Determining the character of a tax as local or State requires an initial inquiry into its purpose. In order . . . that the tax should be proportional . . . it is required that the rate shall be the same throughout the taxing district—that is, if the tax is for the general purposes of the state, the rate should be the same throughout the state; if for the county, it should be uniform throughout the county—and the requisite of proportion, or equality and justice, can be answered in no other way. . . . We find the purpose of the school tax to be overwhelmingly a State purpose and dispositive of the issue of the character of the tax. [t]he local school district, an entity created by the legislature almost two centuries ago, exists for the public’s benefit, to carry out the mandates of the State’s education laws. . . .
Providing an adequate education is . . . a duty of State government expressly created by the State’s highest governing document, the State Constitution. In addition, public education differs from all other services of the State. No other governmental service plays such a seminal role in developing and maintaining a citizenry capable of furthering the economic, political, and social viability of the State. Only in part II, article 83 is it declared a duty of the legislature to “cherish” a service mandated by the State Constitution. . . . Furthermore,
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education is a State governmental service that is compulsory. . . . That the State, through a complex statutory framework, has shifted most of the responsibility for supporting public schools to local school districts does not diminish the State purpose of the school tax. . . . The question then is whether the school tax as presently structured is proportional and reasonable throughout the State in accordance with the requirements of part II, article 5. . . . We . . . hold that the school tax is disproportionate in violation of our State Constitution. . . . In addition, we conclude that the school tax as presently assessed is unreasonable. The word “reasonable” as used in part II, article 5 means “just.” . . . Because the diffusion of knowledge and learning is regarded by the State Constitution as “essential to the preservation of a free government,” N.H. CONST. pt. II, art. 83, it is only just that those who enjoy such government should equally assist in contributing to its preservation. The residents of one municipality should not be compelled to bear greater burdens than are borne by others. . . . There is nothing fair or just about taxing a home or other real estate in one town at four times the rate that similar property is taxed in another town to fulfill the same purpose of meeting the State’s educational duty. Compelling taxpayers from property-poor districts to pay higher tax rates and thereby contribute disproportionate sums to fund education is unreasonable. . . . We hold, therefore, that the varying property tax rates across the State violate part II, article 5 of the State Constitution in that such taxes, which support the public purpose of education, are unreasonable and disproportionate. . . . The constitution places the duty to support the public schools on “the legislators and magistrates.” N.H. CONST. pt. II, art. 83. As we said in Claremont I, it is for the legislature and the Governor to “fulfill their responsibility with respect to defining the specifics of, and the appropriate means to provide through public education, the knowledge and learning essential to the preservation of a free government.” Claremont I, 138 N.H. at 193, 635 A. 2d at 1381. . . . Our society places tremendous value on education. Education provides the key to individual opportunities for social and economic advancement and forms the foundation for our
democratic institutions and our place in the global economy. The very existence of government was declared by the framers to depend upon the intelligence of its citizens. . . . As the New Hampshire Constitution exists today, education is deemed so essential to the viability of the State that part II, article 83 is one of only two places in the constitution where a duty is affirmatively placed on the legislature. Compare N.H. CONST. pt. II, art. 83 (“it shall be the duty of the legislators . . . to cherish . . . public schools”) with N.H. CONST. pt. II, art. 5-A (legislature has “duty to provide for prompt and temporary succession to the powers and duties of public officers in the event of enemy attack”). “In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education.” . . . In this appeal, the plaintiffs ask us to declare a state-funded constitutionally adequate public education a fundamental right. . . . When governmental action impinges fundamental rights, such matters are entitled to review under the standard of strict judicial scrutiny. . . . In determining whether, in New Hampshire, a State-funded constitutionally adequate elementary and secondary education is a fundamental right, we are guided by two salient factors: one of constitutional interpretation and the other of practicality and common sense. First and foremost is the fact that our State Constitution specifically charges the legislature with the duty to provide public education. See N.H. CONST. pt. II, art. 83. This fact alone is sufficient in our view to accord fundamental right status to the beneficiaries of the duty. It is not the province of this Court to create substantive constitutional rights in the name of guaranteeing equal protection of the laws. Thus, the key to discovering whether education is “fundamental” is not to be found in comparisons of the relative societal significance of education as opposed to subsistence or housing. . . . Rather, the answer lies in assessing whether there is a right to education explicitly or implicitly guaranteed by the Constitution. Second, and of persuasive force, is the simple fact that even a minimalist view of educational adequacy recognizes the role of education in preparing citizens to participate in the exercise of voting and First Amendment rights. The latter being recognized as fundamental, it is
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Judicial Approval of Common Schools
illogical to place the means to exercise those rights on less substantial constitutional footing than the rights themselves. We hold that in this State a constitutionally adequate public education is a fundamental right. In so doing we note that “[t]he right to an adequate education mandated by the Constitution is not based on the exclusive needs of a particular individual, but rather is a right held by the public to enforce the State’s duty.” . . . We emphasize that the fundamental right at issue is the right to a state-funded constitutionally adequate public education . . . , the substance of the right may be achieved in different schools possessing, for example, differing library resources, teacher–student ratios, computer software, as well as the myriad tools and techniques that may be employed by those in on-site control of the State’s public elementary and secondary school systems. But when an individual school or school district offers something less than educational adequacy, the governmental action or lack of action that is the root cause of the disparity will be examined by a standard of strict judicial scrutiny. “Given the complexities of our society today, the State’s constitutional duty extends beyond mere reading, writing, and arithmetic. It also includes broad educational opportunities needed in today’s society to prepare citizens for their role as participants and as potential competitors in today’s marketplace of ideas.” A constitutionally adequate public education is not a static concept removed from the demands of an evolving world. It is not the needs of the few but the critical requirements of the many that it must address. Mere competence in the basics—reading, writing, and arithmetic—is insufficient in the waning days of the twentieth century to insure that this State’s public school students are fully integrated into the world around them. A broad exposure to the social, economic, scientific, technological, and political realities of today’s society is essential for our students to compete, contribute, and flourish in the twenty-first century. . . . The State’s duty to provide for an adequate education is constitutionally compelled. The present system selected and crafted by the State to fund public education is, however, unconstitutional. While the State may delegate its obligation to provide a constitutionally adequate public education to local school districts, it may not do so in a form underscored by unreasonable and
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inequitable tax burdens. As the State acknowledged at oral argument, several financing models could be fashioned to fund public education. It is for the legislature to select one that passes constitutional muster. . . . We are confident that the legislature and the Governor will act expeditiously to fulfill the State’s duty to provide for a constitutionally adequate public education and to guarantee adequate funding in a manner that does not violate the State Constitution. Reversed; proceedings stayed pending further order of the court.
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Judicial Approval of Common Schools
The egalitarian motivation for the common school necessitated the enrollment of children of all social and economic backgrounds. To enlarge public schools from a system of limited free education for poor children—pauper schools—to common schools at the elementary and high school levels required an ever-increasing commitment of public funds.51 The transformation to truly common schools required that the public schools be of such quality that they could attract the children of the more affluent in addition to the children of the poor. Ravitch points out that this movement toward common schools was a logical extension of the Jacksonian philosophy of 1828 that heralded the frontier philosophy of equality and the decline of social class based on wealth and position. “Political equality forced the emergence of new political patterns, and the schools, like other social institutions, began to adjust to the demands of the rising middle class.”52 Opposition to this movement was expressed both politically and in the courts. An early example of such litigation is found in the Hartman53 case in Pennsylvania (decided in 1851), wherein school directors refused to comply with a statute requiring them to create a system of common schools for all children, not just the poor. The school directors defended their position by maintaining that the Pennsylvania Constitution did not permit the legislature to expand the public schools from pauper schools to common schools. The court disagreed.
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Legislature Is Not Prohibited from Creating a System of Common Schools by Expanding on the Pauper School Provision in State Constitution
Commonwealth v. Hartman Supreme Court of Pennsylvania 1851. 17 Pa. 118.
The appellants, Hartman and five others, had been elected school directors of Lowhill Township, Lehigh County. They organized by electing the officers required by the common school law, and made provision for the education of the poor children in that township, but refused to comply with the provisions of the acts of assembly of 1848 and 1849, requiring them to provide for the establishment of common schools in that township: and they refused to resign. A petition was presented to the Court of Quarter Sessions, on April 30, 1849, praying the court to declare their offices vacant, and to appoint substitutes. The court granted a rule upon them to appear and answer; and on May 5, 1849, JONES, J., vacated their office and appointed others in their stead to act until the next annual election for directors. The objection made on the part of Hartman and others was that the school laws of 1848 and 1849 were unconstitutional, as being at variance with the provision in the first section of the 7th article of the Constitution of Pennsylvania, which is as follows: Sect. 1. “The legislature shall, as soon as conveniently may be, provide by law for the establishment of schools throughout the state, in such manner that the poor may be taught gratis.” It was provided in the act of assembly of 11th April, 1848, “that the common school system, from and after the passage of this Act, shall be deemed, held, and taken to be adopted by the several school districts in this Commonwealth.” . . . In the Act of 7th April 1849, it is provided, “That a system of common school education be and the same is hereby deemed, held, and taken to be adopted, according to the provisions of this act, in all the counties in this Commonwealth.”
. . . The Act points out the mode of electing directors, and defines their “general powers and duties.” It provided that “They shall establish a sufficient number of common schools for the education of every individual between the ages of five and twenty-one years, in the districts, who may apply for admission and instruction, either in person, or by parent, guardian, or next friend (emphasis added).” The opinion of the court was delivered Dec. 29, 1851, by BLACK, C.J. The only ground on which this court has been urged to reverse the order of the Quarter Sessions, is, that the school law is unconstitutional. We are of opinion that there is nothing in that law, certainly nothing in that part of it to which our attention has been particularly called, which, in the slightest degree, contravenes the constitution. It is to be remembered, that the rule of interpretation for the state constitution differs totally from that which is applicable to the Constitution of the United States. The latter instrument must have a strict construction; the former a liberal one. Congress can pass no laws but those which the Constitution authorizes either expressly or by clear implication; while the assembly has jurisdiction of all subjects on which its legislation is not prohibited. The powers, not granted to the government of the Union, are withheld; but the state retains every attribute of sovereignty which is not taken away. In applying this principle to the present case, it is enough to say, that there is no syllable in the Constitution which forbids the legislature to provide for a system of general education in any way which they, in their own wisdom, may think best. But it is argued, that for the purpose of promoting education, and carrying out the system of common schools, laws may be passed which will work intolerable wrong, and produce grievous hardship. The answer to this is that a decent respect for a coordinate branch of the government compels us to deny that any such danger can ever exist. But if a law, unjust in its operation, and nevertheless not forbidden by the Constitution, should be enacted, the remedy lies, not in an appeal to the judiciary, but to the people, who must apply the corrective themselves, since they have not entrusted the power to us. The Constitution, in sect. 1 of Article VII, provides that “the legislature shall, as soon as
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Judicial Approval of Common Schools
conveniently may be, provide by law for the establishment of schools throughout the state in such manner that the poor may be taught gratis.” It seems to be believed that the last clause of this section is a limitation to the power of the legislature, and that no law can be constitutional which looks to any other object than that of teaching the poor gratis. The error consists in supposing this to define the maximum of the legislative power, while in truth it only fixes the minimum. It enjoins them to do thus much, but does not forbid them to do more. If they stop short of that point, they fail in their duty; but it does not result from this that they have no authority to go beyond it. Order affirmed.
CASE NOTES Common Schools and Public Schools. The terms “common” and “public” have long been used to describe the tax-supported school. This is a foundational aspect of the American democratic form of government. However, the courts have not provided a uniform and precise definition of either “common” or “public.”54 After an analysis of the extant case law, American Law Reports (A.L.R.) concludes that “the terms ‘common school’ and ‘public school’ are generally, though not invariably, accepted as synonymous, and in a number of cases it has been specifically declared that they are synonymous” (113 ALR 697). For example, in O’Dell, an early Indiana case, the court simply opined that “common schools” are “public schools.” In that case, a parent argued that compulsory attendance statutes only applied to “common schools” that were limited to primary school and, therefore, his child was not required to attend high school. The Court said that common schools were public schools and the terms included both primary and high schools. State v. O’Dell, 187 Ind. 84, 118 N.E. 529 (1918). A Missouri Court, in defining “common” and “public” to be synonymous, said: “the term ‘common’ when applied to schools, is used to denote that they are open and public to all. State legislation on the subject uses the term ‘public’ as often as it uses ‘common.’ ” Accordingly, a Missouri Court concluded that the terms could be used interchangeably, as meaning one and the same thing. Roach v. Board, etc., of St. Louis Public Schools, 77 Mo. 484, 1883 WL 9780 (Mo. 1883).
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The terms “public schools” and “common schools” have also been defined as having the twin attributes of being “free” and “open” to all on equal terms. 118 ALR 697; Louisville v. Commonwealth, 134 KY 488, 121 S.W. 411 (1909); Board of Education ex. rel. State v. Corey, 63 Okla. 178, 163, p. 949 (1917). Other courts have held that the term “common” schools refer to “primary” schools, and the term “public school” refers to both primary and high schools. State ex. Rel. Moodie v. Bryan, 50 Fla. 293, 39 So. 929 (1905); Perchal v. Daily, 57 S. D. 554, 234 N.W. 45 (1931). A Washington court has contributed the following: it said that a “common school” is “one which is common to all children of proper age and capacity, free, and subject to, and under the control of, qualified voters of the district.” School Dist. v. Bryan, 51 Wash. 498, 99 p. 28 (1909). Similarly, a Montana court has said that public schools are “free common” schools, “universal” and “open to all,” in “contradistinction to ‘private’ and ‘denominational’ schools.” Henderson v. Dawson County, 87 Mont. 122, 286 p. 125 (1930). The term “common” is perhaps best explained by a Kentucky court that ruled that a “system of common schools implies common benefits of free schools, secured by common burdens upon all alike, without regard to or giving special advantages or privileges. . . .” Morganfield Public School v. Thomas, 12 Ky. L. Pep. 832, 15 S.W. 670 (1891). The terms “common schools” and “public schools,” while encompassing both elementary and secondary schools, have not been interpreted so broadly as to include “normal schools.” State Teachers’ College v. Morris, 165 Miss. 758, 144 So. 374 (1932); State ex. Rel. School Dist. v. Preston, 79 Wash. 286, 140, p. 350 (1914). However, if a statute of a state is sufficiently broad in its language in describing public schools, a teachers’ college may be included as a school that is open to all and is financed by tax sources. Kayser v. Board of Education, 273 Mo. 643, 201 S.W. 531 (1918). In most cases, however, common or public schools have not been defined to include postsecondary education, colleges, or universities. Pollitt v. Lewis, 269 Ky. 680, 108 S.W. 2d 671 (1937). In sum, “common schools” and “public schools” are defined by most courts, depending on state statutory and constitutional language,
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Historical and Legal Perspective of Public Schools
as having the same meaning. They are free, open to all, elementary and secondary, for the benefit of all, governed by the citizens and financed in common by general taxation paid by the entire community. All persons benefit in common and all contribute in common.
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Expansion of Public Schools
Earlier, education above the elementary school level had to be acquired at private academies for which a tuition fee was charged and few, if any, poor children attended. Common schools were generally looked upon as being for the elementary grades only. Yet, free, public high schools soon became a democratic necessity. Cubberley observed that “the rising democracy of the second quarter of the nineteenth century now demanded and obtained the democratic high school.”55 Gradually, the high school became an integral part of the free, public school system. The academy had succeeded the old Latin schools with a more practical curriculum designed to more adequately meet the needs of the older youths beyond preparation for college. These academies spread rapidly and were variously known as institutes, seminaries, collegiate institutes, and sometimes colleges. By the early 1800s, Massachusetts had 36 academies; New York, 19; Georgia, 10; and some states, including Kentucky and Indiana, had systems of county academies.56 The greatest growth of the academies was during the period from 1820 to 1840. Most of these academies were residential schools that charged fees for room and board as well as for tuition. Some were financed by local taxation, and a few even had state assistance. The academies, however, were inadequate to meet the burgeoning need for extended educational opportunity. The tuition and fees made accessibility difficult for the poor, and even though their numbers were substantial, they were not numerous enough to be within reasonable walking, wagon, or horseback distance from rural homes to be nonresidential. The solution was the genesis of the American high school. The American high school had no forerunners and was distinguished from previous European models by its close relationship
to the common schools. The high school was an extension of the common elementary school, making it, from the beginning, a higher common school. The first American high school was established in Boston in 1821, and the increase in the number of high schools was slow, but methodical, for the next 30 years. Skepticism as to the viability of the high school was expressed by many who were imbued with the tradition of the academy. As late as 1874, President Porter of Yale University observed that “the expenditure of money for high schools to prepare boys and girls for college was a doubtful experiment.” By 1872, 70 percent of the students entering colleges in the east were graduates of academies, but by 1920, 90 percent of the entering freshmen were graduates of high schools. Opposition to the high school as an extension of the common school generally came from taxpayers who did not want to bear the increased financial burden, as well as from those advocates of the academies and private sectarian schools who thought that the creation of high schools would further diminish the public’s reliance on their respective schools. The court decision generally credited with opening the doors to the public high school as we know it today was the famous Kalamazoo case in 1872.57 No constitutional or legislative provisions in Michigan had previously explicitly established a system of high schools. The legal basis for education was found in legislation in 1817, which contained a provision for public academies, and in the constitution of 1835, which provided for free primary schooling, but neither established a pathway between the primary schooling and the university. Local students aspiring to a university education had entered the preparatory department of the private Kalamazoo College (chartered in 1855). No public accommodation had been made for students’ preparation for college until 1858, when the local school superintendent created the union high school at a time when several of these union high schools had been created elsewhere in Michigan. This particular school thrived amid local controversy created by both taxpayers, who objected to paying for the school, and the proprietors of Kalamazoo College, who had lost students to the union high school. Finally, in 1873, a group
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Charter Schools
of prominent citizens filed suit to restrain the school board from expending public funds to support the high school. Ultimately, the case was appealed to the Michigan Supreme Court, where Judge Thomas M. Cooley rendered a landmark decision. Even though there was other litigation of this nature during this period, this case was particularly important because of the stature of the court and the judicial rationale by which the high school was justified. Courts are generally reticent, in the absence of express statutory language, to imply authority to perform some public function if the expenditure of funds is involved, but here the court did not hesitate to do so. This judicial recognition of the importance of public schools provided a philosophical basis for both legislatures and courts to broaden educational opportunity by extending the school system not only upward, but also downward to kindergartens, as well as to expand the scope of education to areas such as vocational education, special education for the disabled, and compensatory education.
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Charter Schools
We discuss charter schools here because they represent a structural change and departure from the traditional organization of public schools in the United States. Miller observes that charter schools have become the most important public education innovation to occur since their introduction as an educational concept in the early 1990s.58 She defines charter schools as “. . . a public school established under a contract between public authorities and a private organization or a group of private individuals.” 59 The first charter school in the United States was established in St. Paul, Minnesota, in 1992, and today there are over 5,000 such schools in 40 states, the most active of which are in California, Florida, Michigan, New Jersey, New York, Pennsylvania, and Texas. An increasing number of virtual charter schools that reach into several states can be added to this list. The idea of the charter school found its modern statutory origins in the United Kingdom with Margaret Thatcher’s school reform legislation in 1988. Thatcher, the Tory conservative
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prime minister, invented the idea as a mechanism to bypass Labor-controlled local education authorities. The law enacted by Parliament encouraged local schools, teachers, administrators, and parents to “opt out” from under the local authorities and to obtain direct funding from Parliament. These so-called “opt-out” schools were by statute named “Grant-Maintained Schools,” and were designed to be incorporated as privatized business models with laissez-faire competitive and entrepreneurial freedom from state regulatory and labor union constraints. Each school was controlled by its own independent board. The effectiveness of these schools has been much debated and criticized, and later Labor governments have substantially modified the approach to fashion a more viable structure. The charter school in the United States, in its most favorable light, seeks to increase the choice of educational programs, without fueling private self-interests that separate and segregate children of the community. It places great store in the importance of competition in improving the quality of schools. As Minow observes, charter schools are “anchored in faith in consumer sovereignty”60 and “confidence in market-style mechanisms,”61 and that by such means of competition, the freedom of an educational marketplace will make schools more efficient and productive. Parents, of course, now have a choice among private schools, but their choosings are not normally supported by public funds. Private schools are now chartered or incorporated as private entities in their respective states, and any institution, religious organization, or group of parents can easily obtain a charter to incorporate as a private school. The sanctity of such charters was guaranteed as a constitutionally protected interest under the “Obligation of Contracts” provision of the U.S. Constitution as defined by the U.S. Supreme Court in the famous Dartmouth College case in 1819.62 Moreover, the right to establish and keep private schools is protected by the Due Process Clause of the Fourteenth Amendment as interpreted by the U.S. Supreme Court in Pierce v. Society of Sisters in 1925.63 The “charter school” was first proposed in the United States as a definitional mirage that would redefine the term public schools to include private and parochial schools. The idea was
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advanced to circumvent constitutional prohibitions on the giving of public funds to private and parochial schools. The approach as it originated was to permit all private and parochial schools to become chartered in their respective states by meeting minimal state-established criteria. These minimal criteria, “roughly corresponding to the criteria many states now employed in accrediting private schools,” would then allow a private school to be “chartered as a public school and granted the right to accept students and receive public money.”64 By this means, any and all private and parochial schools participating would ipso facto become “public schools” as defined by the new system.65 Such newly defined “public schools” would retain their independence while avoiding constitutional restrictions that normally apply to the public sector and could, as well, retain their religious affiliations. This “definitional reshuffling,” as Henig called it, was proposed earlier by Jencks, who advocated the use of charter schools as a means to achieve the intent of public funding of private and parochial schools without actually resorting to tuition vouchers or tuition tax credits. Jencks said that “a lot of our thinking about the voucher system is based on an attempt to rethink the question of where the line between the public and private should be drawn.”66 The legal basis to circumvent the constitutional proscription against the use of public monies to support religious schools originated in the concept advanced by Justice White in the Allen case, rendered by the U.S. Supreme Court in 1968.67 (See Chapter 5 of this book). In that case, Justice White observed that parochial schools do an “acceptable job of providing secular education to their students”68 in addition to their sectarian instruction. In other words, according to White, the nonsectarian aspects of parochial school instruction served a public purpose in keeping with the purpose of the public school. From there, it took only a short leap of logic to suggest that the presence of secular aspects of the educational programs in parochial schools was so substantial that it merited them the status of a quasi-public school, justifying their receiving public funds. The attempt to redefine public schools was advanced by President H. W. Bush in 1992 when he explained that “[w]hether a school is organized by privately financed educators or town councils
or religious orders or denominations, any school that serves the public and is held accountable by public authority provides public education.”69 Henig points out that such an indiscriminate stretch of the label “public” to “cover largely deregulated, market-based systems of educational choice is possible only because the term ‘public’ has been so devalued.” In its ungarnished primitive form, the “charter school” is designed to remain private, sans public control and accountability. As described by Minow, “These independent schools are intended to operate with public funds, but outside the regulations of the public system.”70 The thrust of the charter school concept changed dramatically when President Clinton advocated school choice that could be exercised only in public schools and not in private or parochial schools. As charter schools have developed, however, they have taken on various permutations in state legislation. Moving away from the base form of a private sectarian institution, in keeping with the Clinton administration’s definition, the charter school has evolved in most states as a form of quasi-public nonsectarian school that requires diversity of racial, economic, and social mix of students. Federal charter school legislation71 passed in 1994 and bearing President Clinton’s imprint defines such schools as having the following features: They are exempted from state and local regulations that inhibit flexible management, yet they are operated under general public supervision and direction, designed with specific educational objectives as their purpose; they are nonsectarian in their programs, admissions, policies, and employment practices and are not affiliated with a sectarian school or religious institution; they are free of tuition and fees; they must be in compliance with federal civil rights legislation; they must provide for admission of students by lottery; they must comply with federal and state financial audit requirements as do other elementary and secondary schools; they must meet required federal, state, and local health and safety requirements; and they are required to operate in accordance with state law.72 This law makes it clear that the concept of the “charter school” adopted by the federal government is a school operating under public auspices and control. It is not a private school defined as public. Yet these requirements apply only if a state desires to receive federal
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Charter Schools
funding for the planning, design, and initial implementation of charter schools. President Obama has made the public charter school one of the central aspects in his educational reform initiative. Taking a page from Margaret Thatcher’s “opt-out” schools competitive business model, the U.S. Department of Education emphasizes “the need for additional effective education entrepreneurs to join the work of reforming America’s lowest performing schools.”73 To stimulate states to place emphasis on the development of more charter schools, the Obama government has monetarily incentivized states to make charter schools an integral part of a larger reform initiative named the “Race to the Top” program.74 Whether a charter school is for-profit is an important feature relevant to the grant of federal funds. The U.S. Court of Appeals, Ninth Circuit, has held that for-profit charter schools are ineligible to receive federal funds under both the Elementary and Secondary Education Act (ESEA) and the Individuals with Disabilities Education Act (IDEA).75 This issue was the focus of a suit that resulted from a U.S. Department of Education audit revealing that the State of Arizona had distributed over $1 million to 11 private for-profit organizations that operated 75 charter schools. Federal law, the court observed, limited by definition the authorized recipients of federal funds to public schools and “nonprofit institutional day and residential” schools. Neither ESEA nor IDEA permits federal funds to flow to for-profit schools or organizations. The court observed that even though both of these major federal subventions have been amended and refined, Congress has not modified its express intent to make for-profit schools ineligible to receive funding.76 Thus, the set of suggested features or principles in the federal law reflects just one philosophical view of the nature and characteristics of charter schools. In actuality, state laws vary widely, indicating the diversity of social, economic, religious, and political forces that define and influence state education policy. In practice, some state laws permit such an extent of private discretion and so little state or local control that the charter school leans far more toward being a private or sectarian school than a public school. Too, state laws differ in that some may limit the number of charter schools or the number of students permitted to enroll in such schools. Others designate
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various agencies that can sponsor charter schools, such as state boards of education, local school boards, chief state school officers, boards of community colleges, boards of public universities, state boards of regents, or special state charter boards. In some states, charters may be granted to schools that were previously public schools or to schools that were previously private. The exact legal status of charter schools may also vary among states. Charter schools may be independent entities, corporate entities, or nonprofit organizations, or may remain an organizational component of the local school district. A range of conditions may govern employment of personnel, including independent employment with the charter school as the employer or as public employees remaining within the personnel system of the local school district. In some states, charter schools are subject to public collective-bargaining laws, and in other states the statutes are silent on the subject. Therefore, state charter school legislation ranges from sincere attempts to improve the public schools by providing greater parental choice and involvement in the educational processes to the obvious efforts to simply divert public funds for private gain. In a relatively short time, charter school litigation has become a cottage industry. In Pennsylvania alone over two dozen appellate court cases have been launched. Originally, the litigation pertained to the state constitutionality of legislation creating charter schools with issues pertaining to the “splintering” of the public schools,77 to problems of racial,78 ethnic,79 and religious80 discrimination; however, recent legal contests have had to do with more pedestrian questions of state statutory intent regarding approval of applications of charters,81 audits of charter school finances,82 accountability and academic standards,83 control of curriculum,84 health and safety,85 demonstrated sustainable financial support,86 funding by the local education agency,87 financing of charter school facilities,88 and a host of other issues, all of which involve judicial interpretation of state charter school statutory provisions. However, the most important legal issues involve the effect of the charter school concept in changing the structure of public schools. The essence of charter schools legislation among the states is that it shifts the control and conduct of the school from public school boards made up of elected local citizenry to private boards, once removed from direct public influence, governed
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by board members who are not elected by the public. The contractual arrangements between state boards of education and/or local boards and the charter school corporate entity is, thus, a major structural change in how the public common schools of the United States have historically functioned as organs of the polity. Cases that probably best describe the basic structural change in public education are increasingly better defined by ongoing litigation. Three cases are particularly informative. In one of these the New Jersey Supreme Court89 clearly and concisely gives legal definition to the charter school: Charter schools are public schools, which through legislative authorization are free from many state and local regulations. Charter schools have more autonomy than other public schools in staffing, curriculum, and spending choice. . . . Such schools actually are accountable to several groups for both their academic results and fiscal practices, including the charter schools’ governmental approving authority, the individuals who organize the schools, and the public that funds them.90
Importantly, it should be added that, by and large, charter schools avoid public school teacher unions and administrative “inconveniences” such as tenure for teachers and much of the attendant complications emanating therefrom that may vest teachers with constitutional property and liberty interests. Yet, the charter schools themselves may generally have governmental protections from liability for tort claims,91 and/ or have immunity from state laws that specify conditions and procedures for private contracts with public bodies. In this regard, at least one state court has held that the charter school agreement with the state or local school district is not in fact a “contract,” but rather is “a grant of power to the charter school board of directors.”92 The most important cases, though, have dealt with issues pertaining to how structural variances of charter schools have induced state constitutional challenges. Principal among these are a Michigan case, Council of Organizations and Others for Education About Parochiaid, Inc. v. Governor;93 a Utah case;94 and a California case, Wilson v. State Board of Education.95 The Michigan Supreme Court upheld the constitutionality of the state charter school law
that had been amended so as not to offend the Michigan constitutional prohibition against giving public monies to church schools. The Michigan court also rejected the plaintiff’s argument that charter schools were private schools, and receipt of public funds by private entities violated that state’s constitutional provision that forbids using public funds for private purposes. The court reasoned that charter schools, although not normal public schools, were nevertheless under the general supervision of the state board of education that had statutory authority to approve charter schools.96 The Utah case sets out clearly a basic question regarding the constitutional authority of the state legislature to deviate from the traditional organization of public schools where local school boards, elected by the citizenry, have the policy oversight of public schools. The crux of the case was whether the legislature was vested with sufficient constitutional latitude to prescribe a new and different role for a state board of education. The California case mentioned previously addresses the philosophical and legal objectives regarding charter schools, primarily noting that although charter schools do represent a modification in the traditional structure of public schools, the legislation does not create a separate school system which would violate the state constitution. This case is set forth in part below.
Charter Schools Act of California Creating Legal Basis for Charter Schools as an Aspect of the Public School System Comports with Requirements of the California Constitution
Wilson v. State Board of Education Court of Appeal, First District, Division 4, California, 1999. 75 Cal. App. 4th 1125, 89 Cal. Rptr. 2d 745
REARDON, J. “Charter schools are grounded in privatesector concepts such as competition-driven improvement . . . , employee empowerment, and
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Charter Schools
customer focus. But they remain very much a public-sector creature, with in-bred requirements of accountability and broad-based equity. Simple in theory, complex in practice, charter schools promise academic results in return for freedom from bureaucracy.” Charter schools are a phenomenon of the 1990’s. With the Charter Schools Act of 1992, California became the second state to enact charter school legislation. . . . New provisions have been added. Troubled by what they see as a multifaceted assault on the California Constitution, appellants aim to halt the march of the charter school movement in California through a facial challenge to the Charter Schools Act and Assembly Bill No. 544. They have petitioned for a writ of mandate commanding the Board to refrain from (1) granting any charters under Assembly Bill No. 544 or the original legislation, and (2) expending any public funds in implementing those laws. Their petition has been denied. On appeal appellants roll out a slate of errors. None have merit. Anyone closely allied with a public school— whether a parent or family member of a student, or a teacher, administrator or classified staff member—can attest to the perils resident in the complex tangle of rules sustaining our public school system. These include the potential to sap creativity and innovation, thwart accountability, and undermine the effective education of our children. The 1992 legislation sought to disrupt entrenchment of these traits within the educational bureaucracy by encouraging the establishment of charter schools. Specifically, it permitted the founding of 100 charter schools statewide and up to ten in any district. These schools would be free from most state laws pertaining uniquely to school districts. Each would receive a five-year revocable charter upon successful petition to the school district governing board or county board of education, signed by a specified percent of teachers. The original enactment set out six goals: (1) improving pupil learning; (2) increasing learning opportunities, especially for low-achieving students; (3) encouraging use of different and innovative teaching methods; (4) creating new professional opportunities for teachers, including
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being responsible for the school site learning program; (5) providing parents and students with more choices in the public school system; and (6) holding schools accountable for measurable pupil outcomes and providing a way to change from rule-based to performance-based accountability systems. Charter schools nonetheless were—and are— subject to important restraints: (1) they must be nonsectarian in their programs, admission policies, employment practices, and all other operations; (2) charter schools cannot charge tuition or discriminate against any student on the basis of ethnicity, national origin, gender or disability; and (3) no private school can be converted to a charter school (former [and current]). The petition to establish a charter school was, and is, a comprehensive document which must, among other items, set forth (1) a description of the educational program; (2) student outcomes and how the school intends to measure progress in meeting those outcomes; (3) the school’s governing structure; (4) qualifications of employees; (5) procedures to ensure the health and safety of students and staff; (6) means of achieving racial and ethnic balance among its students that reflects the general population within the territory of the school district; (7) admission requirements, if applicable; (8) annual audit procedures; (9) procedures for suspending and expelling students; and (10) attendance alternatives for students who choose not to attend charter schools. Under the 1992 scheme, upon receiving a duly signed charter petition and convening a public hearing on its provisions, the school district had discretion to grant or deny the charter. The granting of a charter exempted the school from laws governing school districts except, at the school’s option, provisions concerning participation in the state teacher’s retirement system. Denial of a charter could trigger procedures for reconsideration, at petitioner’s request. Charter schools were, and are, required to meet statewide performance standards and conduct certain pupil assessments. The chartering authority could, and can, revoke a charter for various deficiencies including charter or legal violations and failure to meet student outcomes. AB 544 substantially revamped the 1992 enactment. . . .
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New provisions include the following: (1) no funds will be given for any pupil who also attends a private school that charges his or her family for tuition; (2) all charter school teachers must hold a Commission on Teaching Credentialing certificate or equivalent; (3) petitioners must provide the chartering authority with financial statements that include a proposed first-year operational budget and three-year cash-flow and financial projections; (4) charter schools must use generally accepted accounting principles in conducting the required annual financial audits, and any exceptions or deficiencies identified during the audit must be resolved to the satisfaction of the chartering authority. SB 434 further refines the Charter Schools Act. Starting January 1, 2000, charter schools must (1) at a minimum, offer the same number of instructional minutes per grade level as required of all school districts and (2) maintain written contemporaneous records documenting pupil attendance and make the same available for audit and inspection. As well, as a condition of apportionment of state funding, charter schools must certify that its pupils have participated in the state testing program in the same manner as all other pupils attending public schools. Further, charter schools which provide independent study must comply with statutory requirements and implementing regulations that relate to independent study. And finally, in keeping with this sentiment, charter schools will be held to the same prohibition as local education agencies when it comes to extending funds or value to pupils in independent study programs (or their parents or guardians): They cannot claim state funding if the funds or other value so extended could not legally be extended to similarly situated pupils of a school district (or their parents or guardians). Appellants have provoked a facial challenge to the Charter Schools Act and the AB 544 amendments. This comes with a formidable burden commensurate with the outcome of a successful assault—namely, invalidation of a legislative act. The California Constitution is a limitation on the powers of the legislature, and we construe such limits strictly. Thus, when scrutinizing the constitutionality of a statute, we start with the premise of validity, resolving all doubts in favor of the Legislature’s action. This presumption
of constitutionality is particularly appropriate where, as here, the Legislature has enacted a statute with the pertinent constitutional prescriptions in mind. . . . As a preamble to addressing the amalgam of constitutional objections laid out in this appeal, we emphasize that the Legislature’s power over our public school system is plenary, subject only to constitutional restraints. Since 1879 our Constitution has declared the Legislature’s preeminent role in encouraging education in this state, as well as its fundamental obligation to establish a system of public schools: “A general diffusion of knowledge and intelligence being essential to the preservation of the rights and liberties of the people, the Legislature shall encourage by all suitable means the promotion of intellectual, scientific, moral, and agricultural improvement.” (Art. IX, § 1.) “The Legislature shall provide for a system of common schools by which a free school shall be kept up and supported in each district at least six months in every year, after the first year in which a school has been established.” (§ 5) There can thus be no doubt that our Constitution vests the Legislature with sweeping and comprehensive powers in relation to our public schools including broad discretion to determine the types of programs and services which further the purposes of education. Appellants first maintain that the 1998 AB 544 amendments violate Article IX, section 5 because they amount to abdication of any state control over essential educational functions, e.g., control over curriculum, textbooks, educational focus, teaching methods and operations of charter schools. This is so, they argue, because the parents and teachers who write the charters and the grantees who operate the schools now run the show with respect to all these functions. Appellants confuse the delegation of certain educational functions with the delegation of the public education system itself. As explained in California Teachers Assn. v. Board of Trustees, the public school system is the system of schools, which the Constitution requires the Legislature to provide—namely kindergarten, elementary, secondary and technical schools, as well as state colleges—and the administrative agencies that maintain them. (See Art. IX, § 6 [delineating features of public school system].) However, the
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Charter Schools
curriculum and courses of study are not constitutionally prescribed. Rather, they are details left to the Legislature’s discretion. Indeed, they do not constitute part of the system but are merely a function of it. The same could be said for such functions as educational focus, teaching methods, school operations, furnishing of textbooks, and the like. Moreover, appellants take too myopic a view of what it means for the state to retain control of our public schools, including charter schools. The Charter Schools Act represents a valid exercise of legislative discretion aimed at furthering the purposes of education. Indeed, it bears underscoring that charter schools are strictly creatures of statute. From how charter schools come into being, to who attends and who can teach, to how they are governed and structured, to funding, accountability, and evaluation— the Legislature has plotted all aspects of their existence. Having created the charter school approach, the Legislature can refine it and expand, reduce, or abolish charter schools altogether. In the meantime, the Legislature retains ultimate responsibility for all aspects of education, including charter schools. “ ‘Where the legislature delegates the local functioning of the school system to local boards, districts or municipalities, it does so, always, with its constitutional power and responsibility for ultimate control for the common welfare in reserve.’ ” Appellants further complain that AB 544 has spun off a separate system of charter public schools that has administrative and operational independence from the existing school district structure, and whose courses of instruction and textbooks may vary from those of non-charter schools. Such splintering, appellants charge, violates the article IX, section 5 mandate to the Legislature to provide a “system of common schools.” Article IX, section 6 defines “Public School System” as including “all kindergarten schools, elementary schools, secondary schools, technical schools, and state colleges, established in accordance with law and, in addition, the school districts and the other agencies authorized to maintain them.” The key terms in these provisions are “common” and “system.” The concept of a “common” school is linked directly to that of a “free school,”
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which the Constitution mandates must be “kept up and supported” in each district for a prescribed annual duration. (Art. IX, § 5.) . . . As to the concept of a “system,” we note that early on in California history “the contest was between a state system and a local system of common schools.” The notion of a single state system, under state control, prevailed. Thus, the term “system” has come to import “ ‘unity of purpose as well as an entirety of operation, and the direction to the legislature to provide “a” system of common schools means one system which shall be applicable to all the common schools within the state.’ ” (Serrano v. Priest (1971).) This means that the educational system must “be uniform in terms of the prescribed course of study and educational progression from grade to grade.” From this perspective it is apparent that charter schools are part of California’s single, statewide public school system. First, the Legislature has explicitly found that charter schools are (1) part of the article IX “Public School System”; (2) under its jurisdiction; and (3) entitled to full funding. (§ 47615, subd. (a).) These findings are entitled to deference. As well, the Legislature has directed that the Charter Schools Act “shall be liberally construed to effectuate [these] findings. . . .” Second, the establishment of charter schools does not create a dual system of public schools, as, for example, would be the case if there were a competing local system. Rather, while loosening the apron springs of bureaucracy, the Act places charter schools within the common system of public schools, as the following provisions illustrate: Charter schools by law are free, nonsectarian, and open to all students. They cannot discriminate against students on the basis of ethnicity, national origin, gender, or disability. Further, charter schools must meet statewide standards and conduct pupil assessments applicable to pupils in non-charter public schools; must hire credentialed teachers; and are subject to state and local supervision and inspection. Finally, charter schools must offer the minimum duration of instruction as required of all other public schools. . . . In sum, it is clear that the Act brings charter schools within the system uniformity requirement because (1) their students will be taught by teachers meeting the same minimum
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requirements as all other public school teachers; (2) their education programs must be geared to meet the same state standards, including minimum duration of instruction, applicable to all public schools; and (3) student progress will be measured by the same assessments required of all public school students. Moreover, the Act assures that charter schools will receive funding comparable to other public schools. In addition, it guards against the flow of funds to schools outside the system. For example, the Act prohibits the conversion of private schools to charter schools. It also bars charter schools from receiving any public funds for any pupil also attending a private school that charges the family for tuition. Next, appellants contend that charter schools offend constitutional provisions calling for public schools to be under the exclusive control of officers of the public school system, as well as under the jurisdiction of that system. We find no problem. Article IX, section 8 provides in part: “no public money shall ever be appropriated for the support of any sectarian or denominational school, or any school not under the exclusive control of the officers of the public schools. . . .” This section endeavors to (1) prohibit the use of public funds to support private schools, whether sectarian or not; and (2) preserve strict separation between religion and public education. . . . First, the terms of AB 544 belie these contentions. To begin with, charter schools are public schools because, as explained above, charter schools are part of the public school system. Further, the Legislature has specifically declared that charter schools are under “the exclusive control of the officers of the public schools” and directs us to construe the law liberally to effectuate that finding. Second, . . . charter schools are not in opposition to the public school system. On the contrary, they are a part of that system. Although they have operational independence, an overarching purpose of the charter school approach is to infuse the public school system with competition in order to stimulate continuous improvement in all its schools. Third, we wonder what level of control could be more complete than where, as here, the very destiny of charter schools lies solely in the hands
of public agencies and offices, from the local to the state level: school districts, county boards of education, the Superintendent, and the Board. The chartering authority controls the application approval process, with sole power to issue charters. . . . The Board, upon recommendation from the Superintendent, can . . . revoke any charter or take other action in the face of certain grave breaches of financial, fiduciary, or educational responsibilities. Additionally, the Board exercises continuous control over charter schools through its authority to promulgate implementing regulations. Finally, public funding of charter schools rests in the hands of the Superintendent. Fourth, the sum of these features, which we conclude add up to the requisite constitutional control over charter schools, are in place whether a school elects to “operate as, or be operated by, a nonprofit public benefit corporation” or whether it remains strictly under the legal umbrella of the chartering authority. In other words, even a school operated by a non-profit could never stray from under the wings of the chartering authority, the Board, and the Superintendent. . . . Fifth, speaking directly to appellants’ repeated concern that charter grantees will be making decisions about curriculum and similar educational functions and, thus, the necessary control element abandoned, we reiterate that these functions are details left to legislative discretion. . . . Sixth, as to appellants’ point that charter grantees are not officers of public schools, the law again belies this proposition. . . . . . . Thus, under this scheme, charter school officials are officers of public schools to the same extent as members of other boards of education of public school districts. So long as they administer charter schools according to the law and their charters, as they are presumed to do, they stand on the same constitutional footing as noncharter school board members. If they violate the law, the charter will be revoked. . . . Appellants’ greatest misgiving is their assessment that the current scheme “requires the issuance of a school charter to every church or sect who otherwise qualifies to be a charter grantee. . . .” . . . Moreover, appellants are dismayed that the Act does not specifically sanction charter revocation in the event a school is or becomes controlled by a religious sect. Accordingly, they are adamant that churches and other sectarian
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Charter Schools
groups will and must be permitted to operate and control charter schools, all in defiance of article XVI, section 5 and article IX, section 8. The antidote to these concerns is found in the Act itself. Charter petitioners must affirm that their school will be nonsectarian in its programs and operations. A petition lacking such affirmation can be denied. But what if the petition contained the requisite affirmation but petitioners nonetheless were controlled by a religious organization? In that event, the chartering authority could deny the petition because petitioners were “demonstrably unlikely to successfully implement the program set forth in the petition,” most notably its nonsectarian premise. . . . Appellants’ final protest concerns the effect of the unamended Charter Schools Act, should we strike AB 544. They insist that the underlying enactment amounts to an unconstitutional delegation of legislative powers to the Board and other chartering authorities. . . . Here, the Legislature made the fundamental policy decision to give parents, teachers, and community members the opportunity to set up public schools with operational independence in order to improve student learning, promote educational innovation, and accomplish related public education goals. . . . Having set the policy and fixed standards and limits, the Legislature did its job: “In the educational setting, legislatures rarely control public school operations directly, but delegate authority which permits state, regional, and local education agencies to establish school policies and practices.” Reasonable grants of power to administrative agencies will not offend the non-delegation doctrine so long as adequate safeguards exist to protect against abuse of that power. Here, procedures are in place to safeguard the chartering authority decision-making process. . . . Finally, while it is obvious that appellants wish for more-and-more detailed standards and guidelines, more could not be better in this situation where a primary purpose of the Act is to encourage educational innovation, experimentation, and choice in order to improve learning and expand learning opportunities for all students. How can you write the score to a symphony yet to be created? The Charter Schools Act rests on solid constitutional ground. We affirm the judgment.
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CASE NOTES 1. A Colorado appeals court, 2009, held that a statute creating a state agency to authorize state-run charter schools as an alternative to locally authorized charter schools did not violate a provision of the Colorado Constitution limiting the state board of education’s power over public schools to generally supervisory powers. The constitutional provision requiring the Colorado legislature to establish and maintain a “thorough and uniform” system of free public schools did not prohibit the legislature from establishing a “second and different system” governed by persons outside the local community. Boulder Valley School District RE-2 v. Colorado State Board of Education, 217 P. 3d 918 (Colo.App. 2009). See also: Utah School Boards Association v. Utah State Board of Education, 17 P. 3d 1125 (2001). 2. The power to approve charter schools may be vested in the state board of education, local school boards, or in specially created state charter appeals boards. Conflict among these boards is almost inevitable when local boards reject charter school applications and appeals are made to the state level. One such high-profile case transpired in Colorado when the Denver Board of Education rejected a charter school application and an appeal was taken to the state board of education, whereupon the state board remanded the application back to the Denver Board for reconsideration. Again, the Denver Board denied the application and the applicants appealed again. The state board then overruled the local denial and compelled the Denver Board to approve the application. On appeal, the Colorado Supreme Court held that the Colorado Constitution vested the state board with general supervisory powers that permitted it to be the ultimate regulatory arbiter of such education matters. Further, the court upheld the legislature’s allocation in the charter school law of powers between the state board and the local boards. Board of Education of School District No. 1, Denver v. Booth, 984 P. 2d 639 (Colo. 1999). 3. One important difficulty with constitutional overtones arises when states do not exercise adequate supervisory powers to ensure that racial discrimination does not occur. In South
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Carolina, when a group seeking to form a charter school failed to identify the racial makeup of prospective students, the state’s Supreme Court ruled for the school board in rejecting the application. The potential for use of charter schools as a device for fostering separation will almost certainly constitute a continuing area of legal activity. Beaufort County Board of Education v. Lighthouse Charter School Committee, 335 S.C. 230, 516 S.E.2d 655 (S.C. 1999). 4. As noted above in the text, racial and ethnic segregation is a major concern with charter schools. In a challenge contesting the decision of a local school board to close a neighborhood elementary school and open a charter school, Hispanic parents claimed that the impact was discriminatory in violation of the Equal Protection Clause of the Fourteenth Amendment and the Civil Rights Act of 1964. The U.S. Court of Appeals, Tenth Circuit, held that the parents had failed to show that the action discriminated against Hispanic students. The court found that the State of Colorado had a legitimate interest in enacting a Charter Schools Act designed to increase educational opportunities for at-risk students, as this school was designed to do. Moreover, the court found that under the Act, the charter school must admit all children on an equal basis who are not classified as at risk. Villanueva v. Carere, 85 F. 3d 481 (10th Cir. 1996). 5. The New Jersey Charter School Law, enacted in 1995, was held to be constitutional so long as its implementation did not violate the “thorough and efficient” clause of the state constitution. In re Grant of Charter School Application of Englewood on Palisades Charter School, 164 N.J. 316, 753 A. 2d 687 (N.J. 2000). 6. For-profit companies have been very active in the charter school market and are increasingly consuming greater public school funds for their operations. The question arises, of course, as to the prerogatives of local school districts in relationship to these private companies. When Lincoln-Edison, a nonprofit corporation, submitted a charter school application to a local Pennsylvania school district seeking to convert an elementary school to a charter school managed by Edison Schools, Inc., a for-profit company, the local school district denied the
application. Upon appeal, the State Charter appeal board reversed. On appeal to the court, the local school district argued that the management agreement, among other things, denied the local school trustees oversight of the school and improperly delegated control over teachers to the for-profit company. The court held against the local trustees, finding that because the trustees retained authority as a contracting party, it could oversee the corporation’s operations and thereby fulfill its public responsibility. School District of City of York v. Lincoln-Edison Charter School, 798 A. 2d 295 (Pa. Commw. Ct. 2002). See also Brockbill v. Ron Brown Charter School, 777 A. 2d 131 (Pa. Commw. Ct. 2001); Souderton Area School District v. Souderton Charter School Collaborative, 764 A. 2d 688 (Pa. Commw. Ct. 2000); Boyertown Area School District v. Department of Education, 787 A. 2d 421 (Pa. Commw. Ct. 2002). 7. With regard to federal money flowing to for-profit charter schools, the U.S. Court of Appeals, Ninth Circuit, has interpreted the provisions of ESEA and IDEA to prohibit states from distribution of those funds to for-profit entities. The court in making this determination relied on the “plain meaning” of the wording of the federal statutes, their legislative history, and the U.S. Department of Education’s interpretations of the law. Arizona State Board for Charter Schools v. U.S. Department of Education, 464 F.3d 1003 (9th Cir. 2006). 8. Since charter schools, themselves, are creatures of the state legislatures, procedures for their creation and funding are a matter of specific state statutory provision. A substantial amount of litigation has ensued as a result of denials of applications for state or local charters for charter schools. See: Comprehensive Community Solutions v. Rockford School District, No. 205, 216 Ill. 2d 455, 837 N.E.2d 1 (Ill. 2005); School Board of Osceola County v. UPC of Central Florida, 905 So.2d 909 (Fla. Dist. Ct. App. 2005); Central Dauphin School District v. Founding Coalition of Infinity Charter School, 847 A. 2d 195 (Pa. Commw. Ct. 2004). 9. Further, litigation continues to mount as charter schools scramble for more public funding in competition with traditional public schools. Contests over facilities, transportation, and
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Tuition and Fees in Public Schools
current operating funds are common issues. See: Ridgecrest Charter School v. Sierra Sands Unified School Dist., 130 Cal. App. 4th 986, 30 Cal. Rptr. 3d 648 (Cal. Ct. App. 2005), transportation; see: Racine Charter One v. Racine Unified School District, 424 F. 3d 677 (7th Cir. 2005), tuition and transportation; see: Mosaica Academy Charter School v. Commonwealth Department of Education, 572 Pa. 191, 813 A. 2d 813 (Pa. 2002); and per pupil expense allocations, Francine Delany New School for Children, Inc. v. Asheville City Board of Education, 536 S.E.2d 92 (N.C. Ct. App. 2002).
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Tuition and Fees in Public Schools
Courts have generally held that tuition fees; “matriculation” or “registration” fees; and fees for materials, activities, or privileges cannot be levied in public schools.97 In most cases invalidating fees, the courts have reasoned that the fee was charged as a condition of attendance, which violated the states’ constitutional or statutory provisions establishing “free” public schools. In deciding whether school districts in California could charge a fee for participation in extracurricular activities such as dramatic productions, music groups, and cheerleading, fees were imposed by school districts without the benefit of statutory authorization. The court determined that extracurricular activities constitute “an integral component of public education” and are a “fundamental ingredient of the educational process.”98 Therefore, no fee for these activities may be charged because of the constitutional free school guarantee. Later, a California legislature authorized local districts to charge a transportation fee to non-indigent parents and guardians. This fee was also challenged under the free school guarantee of the state constitution, as in the Hartzell case. The California Supreme Court ruled that because transportation is not an educational activity, it was not protected by the reasoning in Hartzell. The free school provision of the state constitution applies to educational activities, and noneducational activities such as transportation are not required to be free.99 Another reason often given by the courts for invalidating fees is the lack of statutory authority
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to exact the fee. Courts have usually held fees invalid when the fees have been charged for an essential element of a school’s activity. When fees have been upheld, the courts have found that there was statutory authorization for the fee, that the purpose for the fee was a reasonable one, or that the term free schools did not include the item, such as textbooks, for which the school was charging. 100 Courts have, on occasion, distinguished tuition fees from incidental fees, and, in one jurisdiction, a court has upheld an incidental fee of 25 cents per pupil per month to be used for raising funds to pay for fuel to heat the schoolroom, for brooms to sweep the schoolroom, and for water buckets to contain water.101 In the same jurisdiction, an incidental fee for improvement of grounds, insurance, and other incidental expenses did not violate the state constitution.102 In other jurisdictions, incidental fees have been held invalid. In Georgia, 103 a very early decision held that a state statute requiring each child upon entering a municipal public school to pay the board of education an “incidental fee” was “clearly unconstitutional.” However, a court in Illinois ruled that the state constitutional provision requiring the establishment of a thorough and efficient system of free schools did not prevent the state legislature from authorizing school boards to purchase textbooks and rent them to pupils.104 In most cases, fees for activities, materials, or privileges have been held invalid. 105 A $25 annual fee required by one school district as a condition of furnishing each high school student a transcript of courses studied and grades achieved was held to be unconstitutional in Idaho.106 The fee consisted of $12.50 for school activity fees and $12.50 for textbook fees, and it had to be paid before a student could receive a transcript. Responding to each of these fees separately, the court reasoned that the student activity fee was imposed on all students whether they participated in extracurricular activities or not. Therefore, the fee was on attendance, not on activity, and as such contravened the state constitutional mandate that public schools be free. The court did note that since social and extracurricular activities were not necessarily principal elements of a high school career, the state constitution did not prohibit the school district from setting activity fees for students
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who voluntarily participated. With regard to the textbook fee, the court observed that since textbooks were necessary to the school, they were indistinguishable from other fixed educational expense items, such as building maintenance and teachers’ salaries, for which fees could not be charged.107 The requirement that pupils purchase textbooks and school supplies has been held invalid in Michigan.108 In this case, the school district maintained that the word free in the state constitution did not include textbooks and supplies. The Michigan Supreme Court held that books and supplies were necessary elements of any school’s activity and an integral and fundamental part of elementary and secondary education.
Fee for Textbooks and Materials Violates the Free Public Schools Provision of the State Constitution
Randolph County Board of Education v. Adams Supreme Court of Appeals of West Virginia, 1995. 467 S.E.2d 150.
CLECKLEY, Justice. The plaintiff below and appellant herein, Randolph County Board of Education (Board), appeals from an order of the Circuit Court of Randolph County, which held in a declaratory judgment action that it was unconstitutional for the board to charge parents of non-needy school children a book user fee for school books and materials necessary for the completion of the “required school curriculum. . . .” According to the defendants below and appellees herein, the Board’s book user fee essentially amounted to tuition because the fee was mandatory on a non-needy basis regardless of what type of books and materials was given to the child and regardless of whether the parents purchased textbooks through private vendors. The Board claims, and there is no evidence to the contrary, that no student was deprived of a textbook or restricted from school based on
non payment of the book user fee. The Board created a standard for classifying students by economic need by relying on a list of children actually receiving reduced cost or free meals through a school lunch program. . . . In this appeal, we are asked to clarify, if not define, what is meant in the West Virginia Constitution by “free schools.” . . . The textbook user fee system at issue was adopted by the Board in response to an unfortunate reality: the rejection of a school levy by the citizens of Randolph County that, if passed, would have avoided the necessity for the adoption of such a fee. Nevertheless, we now determine that the “free schools” clause prevents local school authorities from charging students and their parents a fee for the use of necessary textbooks. In voiding the fee under the West Virginia Constitution, we attempt to avoid engrafting upon this constitutional provision a judicial gloss so protean, elusive, or arbitrary as to prevent the political branches from performing their mandatory constitutional function of providing “for a thorough and efficient system of free schools.” Our cautious approach in construing Section 1, therefore, is intended not to excessively encroach on the powers which the Constitution has reserved for the Legislature. . . . The “free schools” clause contained in Section 1 of Article XII of the West Virginia Constitution provides: “the Legislature shall provide, by general law, for a thorough and efficient system of free schools.” Its central mandate is to require equal and quality educational opportunities for all West Virginians. Though the application of this imperative raises difficult choices and questions, the framers of our Constitution enacted Section 1 to facilitate public access to education. Premised on the belief that an educated electorate is vital to the proper operation of a democracy, Section 1 is intended to create an expedient for achieving this end while at the same time making the Legislature responsible for raising funds for that purpose. We, therefore, proceed to the basic interpretive question aware that we are interpreting a constitutional provision that seeks broadly to overcome all hostility to quality public education. . . . Section 1 of Article XII of the West Virginia Constitution creates a strong presumption in favor of making everything that is deemed
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Tuition and Fees in Public Schools
a necessary component to public education cost-free. When a board of education seeks to charge parents for their children’s participation in public education, the board bears a heavy burden in rebutting this constitutionally based presumption. To provide otherwise would render the constitutional guarantee of a free public education an empty and cruel illusion. With this background we turn to the central issue in this case: whether a county board of education may charge a book user fee to non-needy school children. The Board points to various statutes, case law, the West Virginia Constitution, and its financial problems to justify charging the book user fee to non-needy students. The defendants argue, on the other hand, that the book user fee is unconstitutional and ultra vires. More specifically, the parties focus on whether the phrase “free school” includes the distribution of textbooks to all students without charge. . . . At first glance, the “free schools” language of Section 1 of Article XII seems clear and unambiguous. However, the word “free” can be a word of many meanings and its construction is often influenced by its context. When used as an adjective, the word takes on many different connotations. Because the word “free” is open to divergent interpretations, we must examine the word in the context of this constitutional provision. Without doubt, the drafters of the Constitution intended to create a system of free public schools. . . . Our basic law makes education’s funding second in priority only to payment of State debt, and ahead of every other State function. Our Constitution manifests, throughout, the people’s clear mandate to the Legislature, that public education is a prime function of our State government. [Therefore, w]e must not allow that command to be unheeded. Pauley v. Kelley, 162 W.Va. 672, 719, 255 S.E.2d 859, 884 (1979). . . .
In . . . State ex rel. Board of Education for the County of Grant v. Manchin, 179 W. Va. 235, 366 S.E.2d 743 (1988), we stated: The mandatory requirements of “a thorough and efficient system of free schools” found in Article XII, Section 1 of the West Virginia Constitution, make education a fundamental, constitutional right in this State. . . .
[I]t is clear that the Constitution provides a clear entitlement to a basic education. Although
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we have never interpreted the “free schools” portion of Section 1 of Article XII, we have considered what the “thorough and efficient” portion of this section and article means in relation to a school system. We define a “thorough and efficient” system of schools as: “It develops, as best the state of education expertise allows, the minds, bodies and social morality of its charges to prepare them for useful and happy occupations, recreation and citizenship, and does so economically.” . . . . . . We recognize that part of the goal of the school system is to instruct students so they might become well-rounded, academically talented, and productive citizens. How one goes about this task and what materials are used are key. For this reason, we find that whatever items are deemed necessary to accomplish the goals of a school system and are, in fact, an “integral fundamental part of the elementary and secondary education” must be provided free of charge to all students in order to comply with the constitutional mandate of a “free school” system. . . . Are the textbooks and materials at issue in this case such an “integral fundamental part of the elementary and secondary education” that they must be provided free? We find that the answer to this question is “yes.” Of course, providing a place of instruction and qualified teachers are extremely important; however, hindering access to necessary materials would make the educational process nearly meaningless. . . . Throughout the history of this State, we have taken great strides to ensure that each child has an equal opportunity to receive a quality education. . . . Specifically, textbooks have always been an important issue in the great educational debate. Moreover, there generally has been a “push” to equalize education and providing “free textbooks followed as a matter of course.” . . . Various legislative enactments and case law have solidified the concept that free textbooks are a fundamental part of the learning experience. Even in the general authorization of power to the State Board of Education, the Legislature indicated that the supervision over the distribution of free textbooks was one of the duties of the State Board. . . . [T]he Board [argues] that never in the history of this State has it been required to provide textbooks free of charge for all students.
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By narrowly focusing on the failure to provide textbooks in the past, the Board fails to embrace the full history surrounding the educational system in this State. Although Section 1 of Article XII provides textual support for the right to a free education, it is clear the framers intended and the populace continues to support the notion that all students are entitled to a basic level of education free of budgetary concerns. History is indeed very important, but it alone cannot be permitted to overwhelm or replace the constitutional provision in question. . . . What may have been fundamental for a quality education in the past does not make it necessarily so now. Textbooks for modern students are a fundamental part of the learning experience. To find otherwise would ignore reality and, moreover, constitutional mandates. . . . Balancing constitutional mandates with fiscal constraints while still maintaining quality educational programs has placed a tremendous burden on school systems to make difficult choices. We understand and sympathize with the Board concerning its dire financial straits. However, its extreme need is still no justification for a violation of rights of constitutional magnitude. . . . The dilemma faced by the Board is indistinguishable from any number of difficult choices that governmental agencies must make under our constitutional system. Section 1 necessarily exerts pressure on our Legislature and boards of education to make hard—and sometimes undesirable—decisions while staying within constitutional limitations. Thus, we are compelled to underscore that financial hardship is an insufficient basis for ignoring the West Virginia Constitution. The imposition of these difficult choices is an inevitable and unavoidable attribute that emanates from our Constitution. Although we find our interpretive choice difficult, we believe that our interpretation is most faithful to the Constitution. Concededly, our interpretation limits the Legislature’s and the Board’s authority to carry out their mandate of providing “for a thorough and efficient system of free schools.” The history of Section 1, to the extent informative, indicates that the framers saw the word “free” as part of a guarantee that education in West Virginia would remain user friendly and that the financial burden to achieve this purpose would be shared generally
by the taxpayers of West Virginia. The context of Section 1 confirms this understanding of the framers’ intent. . . . Accordingly, for the reasons discussed above, we affirm the judgment of the Circuit Court of Randolph County. Affirmed.
State Constitutional Provision for Free Public Schooling Prohibits Fees for Either Regular or Extracurricular Programs
Hartzell v. Connell Supreme Court of California, In Bank, 1984. 35 Cal. 3d 899, 201 Cal. Rptr. 601, 679 P. 2d 35.
BIRD, Chief Justice. May a public high school district charge fees for educational programs simply because they have been denominated “extracurricular”? The Santa Barbara High School District (District) offers a wide variety of extracurricular activities, ranging from cheerleading to madrigal singing, and from archery to football. Many of these activities are of relatively recent origin. For example, in 1956, Santa Barbara High School fielded six athletic teams while today there are thirty-eight. Prior to the 1980–1981 school year, any student could participate in these activities free of charge. The programs were financed by a combination of District contributions (mostly state aid and local tax revenues), ticket sales, and fundraising activities conducted by the constituent high schools. In the spring of 1980, the District school board (Board) decided to cut its budget by $1.1 million. This decision reflected a drop in revenues due to the combined effects of inflation, declining enrollment, and the adoption of Proposition 13. Among the items to be reduced was the District’s contribution to the high school extracurricular programs. The Board considered two plans for adapting the programs to fit its reduced budget. The first plan called for a major cut in interscholastic athletic competition, including the reduction of the
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Tuition and Fees in Public Schools
high school program from over thirty teams to only eight and the elimination of interscholastic competition at the ninth-grade level. Under this plan, the surviving programs were to remain open to all students free of charge. The second plan provided for a less extensive cut in athletic competition—elimination of the ninthgrade program only. To make up the difference, it proposed to raise money by charging students fees for participation in dramatic productions, musical performances, and athletic competition. The Board chose the second option. Under the plan finally adopted, students are required to pay $25 for each athletic team in which they wish to participate, and $25 per category for any or all activities in each of the following four categories: (1) dramatic productions (e.g., plays, dance performances, and musicals); (2) vocal music groups (e.g., choir and madrigal groups); (3) instrumental groups (e.g., orchestra, marching band, and related groups such as the drill team and flag twirlers); and (4) cheerleading groups. Thus, a student who desires to play football in the fall and tennis in the spring, in addition to participating in a dramatic production, must pay $75. A more musically inclined student, who plays an instrument, sings in a group, and performs in a musical, also pays $75. None of the affected activities yield any credit toward graduation. . . . The teachers of the credit courses also supervise the noncredit performances. . . . In an attempt to ensure that the fees would not prevent any students from participating, the District has implemented a fee-waiver program. Upon a showing of financial need, a student may obtain a “scholarship” to participate without paying the fee. The standard of need is similar to that of the free lunch program. . . . The District’s three high schools granted a total of seventy-seven waivers. . . . Shortly before the start of the 1980–1981 school year, Barbara Hartzell, a taxpayer with two children in the public schools, and the Coalition Opposing Student Fees, a grouping of community organizations, filed this taxpayers’ action against the District, various school officials, and the members of the Board. . . . The California Constitution requires the Legislature to “provide for a system of common schools by which a free school shall be kept up and
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supported in each district. . . . ” (Cal. Const., Art. IX, § 5, emphasis added) This provision entitled “the youth of the State . . . to be educated at the public expense.” (Ward v. Flood (1874) 48 Cal. 36, 51.) Plaintiffs assert that the imposition of fees for educational extracurricular activities violates the free school guarantee. They are correct. The first question raised by plaintiffs’ challenge is whether extracurricular activities fall within the free education guaranteed by section 5. California courts have not yet addressed this issue. The reported decisions from other jurisdictions reveal two distinct approaches. One approach restricts the free school guarantee to programs that are “essential to the prescribed curriculum.” . . . Under this view, the right to an education does not extend to activities that are “outside of or in addition to the regular academic courses or curriculum of a school.” . . . Accordingly, it has been held that students have no right to participate in extracurricular activities. . . . The second approach holds that the free school guarantee extends to all activities which constitute an “integral fundamental part of the elementary and secondary education” or which amount to “necessary elements of any school’s activity.” . . . Courts applying this approach have held that “the right to attend school includes the right to participate in extracurricular activities.” In particular, courts have struck down extracurricular activities fees as unconstitutional. . . . To determine which, if either, of these approaches is consistent with California’s free school guarantee, this court must examine the role played by education in the overall constitutional scheme. Because the nature of the free school concept has rarely been addressed by the courts, it will be necessary to explore its underpinnings in some depth. The free school guarantee was enacted at the Constitutional Convention of 1878–1879. Also adopted was article IX, § 1, which proclaims that “[a] general diffusion of knowledge and intelligence [is] essential to the preservation of the rights and liberties of the people” (emphasis added). . . . Joseph W. Winans, chairperson for the convention’s Committee on Education, elaborated: “Public education forms the basis of self-government and constitutes the very cornerstone of republican institutions.” (Debates
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and Proceedings, Cal. Const. Convention 1878– 1879, p. 1087 [hereafter Proceedings].) In support of section 1, delegate John T. Wickes argued that “a liberal education . . . breaks down aristocratic caste; for the man who has a liberal education, if he has no money, if he has no wealth, he can stand in the presence of his fellowmen with the stamp of divinity upon his brow, and shape the laws of the people. . . . ” (Proceedings at p. 1088.) This theme runs like a unifying thread through the writings of our forefathers. In 1786, Thomas Jefferson wrote from France, then a monarchy: “I think by far the most important bill in our whole code is that for the diffusion of knowledge among the people. No other sure foundation can be devised for the preservation of freedom, and happiness. . . . ” (Jefferson, Letter to George Wythe, in The Portable Thomas Jefferson (Peterson edit. 1979) pp. 399–400.) John Swett, California’s most prominent free school advocate at the time section 5 was adopted, warned: “Our destruction, should it come at all, will be . . . [f]rom the inattention of the people to the concerns of their government. . . . I fear that they may place too implicit confidence in their public servants and fail properly to scrutinize their conduct. . . . Make them intelligent, and they will be vigilant; give them the means of detecting the wrong, and they will apply the remedy.” (Quoted in Cloud, The Story of California’s Schools, p. 20.) Without education for all, a majority of the people would be—in the words of Horace Mann—“the vassals of as severe a tyranny, in the form of capital, as the lower classes of Europe are bound to in the form of brute force.” (Mann, Twelfth Annual Report, in “Educational Ideas in America: A Documentary History” (Rippa edit. 1969), p. 199.) Perhaps the most eloquent expression of the free school idea came not from a political leader or educator, but from the poet Ralph Waldo Emerson: “We have already taken, at the planting of the Colonies, . . . the initial step, which for its importance, might have been resisted as the most radical of revolutions, thus deciding at the start of the destiny of this country,—this, namely, that the poor man, whom the law does not allow to take an ear of corn when starving, nor a pair of shoes for his freezing feet, is allowed to put his hand into the pocket of the rich, and say, You
shall educate me, not as you will, but as I will: not alone in the elements, but, by further provisions, in the languages, in sciences, in the useful and in elegant arts.” (Emerson, Education, in “Educational Ideas in America: A Documentary History,” supra, at p. 176.) The contribution of education to democracy has a political, an economic, and a social dimension. As this court has previously noted, education prepares students for active involvement in political affairs. . . . Education stimulates an interest in the political process and provides the intellectual and practical tools necessary for political action. Indeed, education may well be “the dominant factor in influencing political participation and awareness.” . . . Without high quality education, the populace will lack the knowledge, self-confidence, and critical skills to evaluate independently the pronouncements of pundits and political leaders. . . . Not only does education provide skills useful in political activity, it also prepares individuals to participate in the institutional structures— such as labor unions and business enterprises— that distribute economic opportunities and exercise economic power. Education holds out a “bright hope” for the “poor and oppressed” to participate fully in the economic life of American society. . . . Finally, education serves as a “unifying social force” among our varied population, promoting cohesion based upon democratic values. . . . The public schools bring together members of different racial and cultural groups and, hopefully, help them to live together “in harmony and mutual respect.” . . . Viewed in light of these constitutionally recognized purposes, the first of the two tests described above is insufficient to ensure compliance with California’s free school guarantee. That approach determines whether a given program falls within the guarantee not by assessing its actual educational value, but by deferring to a school board’s decision on whether or not to offer it for formal, academic credit. Under this test, a for-credit program would fall within the guarantee, while a noncredit program with identical content—and equal value in fulfilling the constitutionally recognized purposes of education— could be offered for a fee.
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Tuition and Fees in Public Schools
The second approach, on the other hand, does not sever the concept of education from its purposes. It focuses not upon the formalities of credit, but upon the educational character of the activities in question. It can no longer be denied that extracurricular activities constitute an integral component of public education. Such activities are “generally recognized as a fundamental ingredient of the educational process.” . . . They are “[no] less fitted for the ultimate purpose of our public schools, to wit, the making of good citizens physically, mentally, and morally, than the study of algebra and Latin. . . .” In a variety of legal contexts, courts have emphasized the vital importance of student participation in educational extracurricular programs. . . . In addition to the particular skills taught, group activities encourage active participation in community affairs, promote the development of leadership qualities, and instill a spirit of collective endeavor. These results are directly linked to the constitutional role of education in preserving democracy, as set forth in article IX, section 1, and elaborated in Serrano I, 96 Cal. Rptr. 601, 487 P. 2d 1241. Accordingly, this court holds that all educational activities—curricular or “extracurricular”— offered to students by school districts fall within the free school guarantee of article IX, section 5. Since it is not disputed that the programs involved in this case are “educational” in character, they fall within that guarantee. Defendants argue, however, that the feewaiver policy for needy students satisfies the requirements of the free school guarantee. They suggest that the right “to be educated at the public expense” . . . amounts merely to a right not to be financially prevented from enjoying educational opportunities. This argument contradicts the plain language of the Constitution. In guaranteeing “free” public schools, article IX, section 5 fixes the precise extent of the financial burden which may be imposed on the right to an education—none. . . . A school which conditions a student’s participation in educational activities upon the payment of a fee clearly is not a “free school.” The free school guarantee reflects the people’s judgment that a child’s public education is too important to be left to the budgetary circumstances
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and decisions of individual families. It makes no distinction between needy and non-needy families. Individual families, needy or not, may value education more or less depending upon conflicting budget priorities. As John Swett, the “father of the California Public School System,” recognized in 1863, “[i]f left to their own unaided efforts, a great majority of the people will fail through want of means to properly educate their children; another class, with means at command, will fail through want of interest. The people then, can be educated only by a system of Free Schools, supported by taxation, and controlled directly by the people.” (Swett, Duties of the State to Public Schools, reprinted in Swett, History of the Public School System of California (1876) p. 110, emphasis added). The free school guarantee lifts budgetary decisions concerning public education out of the individual family setting and requires that such decisions be made by the community as a whole. Once the community has decided that a particular educational program is important enough to be offered by its public schools, a student’s participation in that program cannot be made to depend upon his or her family’s decision whether to pay a fee or buy a toaster. Nor may a student’s participation be conditioned upon application for a special waiver. The stigma that results from recording some students as needy was recognized early in the struggle for free schools. Thaddeus Stevens once declared, in response to an 1835 proposal that teachers keep a list of “poor scholars”: “Sir, hereditary distinctions of rank are sufficiently odious; but that which is founded on poverty is infinitely more so. Such a law should be entitled ‘an act for branding and marking the poor, so that they may be known from the rich and proud.’ ” (Stevens, A Plea for Free Schools, in “Educational Ideas in America: A Documentary History,” supra, at p. 188.) Defendants’ extracurricular programs are not truly “free” even to those students who are eligible for waivers. “[T]o a child or his parents financially unable to pay the additional fees and charges imposed by a free, public school system, any waiver procedure is a degrading experience.” . . . Finally, defendants warn that, if the fees are invalidated, many school districts may be forced to drop some extracurricular activities. They
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argue that invalidation would—in the name of the free school guarantee—produce the anomalous result of reducing the number of educational opportunities available to students. This court recognizes that, due to legal limitations on taxation and spending, school districts do indeed operate under difficult financial constraints. However, financial hardship is no defense to a violation of the free school guarantee. . . . Perhaps, in view of some, public education could be more efficiently financed by peddling it on the open market. Under the California Constitution, however, access to public education is a right enjoyed by all—not a commodity for sale. Educational opportunities must be provided to all students without regard to their families’ ability or willingness to pay fees or request special waivers. This fundamental feature of public education is not contingent upon the inevitably fluctuating financial health of local school districts. A solution to those financial difficulties must be found elsewhere—for example, through the political process. In conclusion, this court holds that the imposition of fees for educational activities offered by public high school districts violates the free school guarantee. The constitutional defect in such fees can neither be corrected by providing waivers to indigent students, nor justified by pleading financial hardship. . . . In conclusion, the imposition of fees as a precondition for participation in educational programs offered by public high schools on a noncredit basis violates the free school guarantee of the California Constitution and the prohibition against school fees contained in title 5, section 350 of the California Administrative Code. The judgment is reversed.
CASE NOTES The authoritative source regarding tuition and fees for children attending elementary and secondary schools is American Law Reports (A.L.R. 3d) by Jeffrey F. Ghent. After an analysis of the case law in all the states, Ghent concludes that, as a whole, considering all types of fees, the court decisions that invalidate fees are approximately double in number the decisions that have validated fees. Courts invalidating
fees have usually found that the offending characteristics of fees are: (1) the fee was a condition of attendance, where there was a constitutional or statutory provision that required the public schools to be “free,” (2) the fee was ultra vires, the school district did not have statutory discretion to levy a fee, or (3) the fee was charged for an essential and necessary element of a school’s educational program; exaction of the fee effectively nullified the concept of gratuitous education. Where fees have been upheld the courts have reasoned that; (1) there was statutory authority for the fee, (2) the purpose for exaction of the fee was reasonable, (3) fiscal necessity justified the fee, (4) the state constitution did not explicitly or impliedly require public schools to be “free,” (5) the historical meaning and intent of the constitutional use of the word “free” did not include textbooks or other items ancillary to the central instructional program, or (6) the fee was in fact only a refundable deposit. TUITION FEES: a charge or a fee to attend school. Held Valid: A charge or a fee to attend school. South Carolina: Holler v. Rock Hill School District, 60 S.C. 41, 38 S.E. 220 (1901); Arizona: Ruth Fisher Elementary School v. Buckeye Union High School District, 41 P. 3d 645 (Ariz. Ct. App. Div. 1, 2002). North Carolina: Kiddie Korner Day Schools, Inc. v. Charlotte–McKlenbury Bd. of Education, 55 N.C. App. 134, 285 S.E.2d 110, petition denied, 291 N.C. 291 S.E.2d 150 (1981). Texas: Jackson v. Waco Independent School District, 629 S.W.2d 201, 3 Ed. Law Rep. 441 (Tex. App. 1982). Kentucky: Major v. Cayce, 98 Ky. 357, 33 S.W. 93 (1895). New Mexico: Norton v. Board of Education, 89 N.M. 470, 553 P. 2d 1277 (1976). Not Valid: Alabama: Roberson v. Oliver, 189 Ala. 82, 66 So. 645 (1914); Williams v. Smith, 192 Ala. 428, 68 So. 323 (1915). Hughes v. Outlaw, 197 Ala. 452, 73 So. 16 (1916). Arkansas: Special School District v. Bangs, 144 Ark. 34, 221 S.W. 1060 (1920). Kansas: Board of Education v. Dick, 70 Kan. 434, 78 P. 2d 812 (1904). Missouri: Roberts v. Wilson, 221 Mo. App. 9, 297 S.W. 419 (1927). North Dakota: Batty v. Board of Education, 67 N.D.6, 269 N.W. 49 (1936). Montana: Granger v. Cascade Country School District, 159 Mont. 516, 499 P. 2d 780 (Mont. 1972). North Carolina: 115 N.C. App. 452, 446 S.E.2d 107 (1994). Wisconsin: Marcy v. Oshkosh, 144 Wis. 238, 128 N.E. 899 (1910).
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Tuition and Fees in Public Schools
MATRICULATION OR REGISTRATION FEES: To matriculate means to enroll. A matriculation fee would thus be an enrollment fee. Registration in normal parlance is synonymous with matriculation. In a majority of cases the courts have held that matriculation and/or registration fees are unconstitutional. Held Valid: Alabama: Vincent v. County Board of Education, 222 Ala. 216, 131 So. 893 (1931). South Carolina: Felder v. Johnson, 127 S.C. 215, 121 S.E. 54 (1924). Georgia: Kristin Nat., Inc. v. Board of Education of City of Marietta, 250 Ga. app. 488, 552 S.E.2d 474 (2001). Held Not Valid: Arkansas: Dowell v. School District, 220 Ark. 828, 250 S.W.2d 127 (1952). Georgia: Wilson v. Sanford, 133 Ga. 483, 66 S.E. 258 (1909). Georgia: Brewer v. Ray, 149 Ga. 596, 101 S.E. 667 (1919). Georgia: Brinson v. Jackson, 168 Ga. 353, 148 S.E. 96 (1929). Michigan: Bond v. Public Schools of Ann Arbor School District, 383 Mich. 693, 178 N.W.2d. 484, 41 ALR 3d 742 (1970). Missouri: Parents v. Caruthersville School District, 548 S.W.2d 554 (Mo. 1977). INCIDENTAL FEES: Incidental fees are subsidiary fees, for minor needs, subordinate to the main school program. Held Valid: Alabama: Bryant v. Whisenant, 167 Ala. 325, 52 So. 525 (1910); Roberson v. Oliver, 189 Ala. 82, 66 So. 645 (1914); Ryan v. Sawyer, 195 Ala. 69, 70 So. 652 (1916); Kennedy v. Board of Education, 214 Ala. 349, 107 So. 907 (1926); Vincent v. Board of Education, 22 Ala. 216, 131 So. 893 (1931). Held Not Valid: Georgia: 86 Ga. 605, 13 S.E. 120 (1891). South Carolina: 64 S.C. 131, 41 S.E. 824 (1902). FEES FOR TEXTBOOKS, PARTICULAR MATERIALS, ACTIVITIES, OR PRIVILEGES. Held Valid: Arizona: (textbooks), Carpio v. Tucson High School District, 111 Ariz. 127, 524 P. 2d 948 (1974), cert. denied, 420 U.S. 982, 43 L.Ed. 664, 95 S. Ct. 1412. California: (transportation), Salazar v. Eastin, 9 Cal. 4th 836, 39 Cal. Rptr. 2d 21, 890 P. 2d 43 (1995). Colorado: (textbook rentals), Marshall v. School District, 191 Colo. 451, 553 P. 2d 784 (1976). Illinois: (materials and supplies), Beck v. Board of Education, 63 Ill.2d 10, 344 N.E.2d 440; (lunchroom supervision), Ambroiggio v. Board of Education, 101 Ill. App. 3d 187, 56 Ill. Dec. 622, 427 N.E.2d 1027 (1981); (workbooks, maps, paper, magazines), Beck v. Board of Education,
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27 Ill. App. 3d 4, 325 N.E.2d 640, Affd. (Ill.) 344 N.E.2d 440 (1976); (textbooks and towels), Hamer v. Board of Education, 9 Ill. App 3d, 663, 292 N.E.3d 569 (1973). Indiana: (textbooks), Chandler v. South Bend Community School Corp., 160 Ind. App. 593, 312 N.E.2d 915 (1974); however, note, Chandler was contradicted and found to be “dubious at best” by the Court of Appeals of Indiana, in Nagy v. Evansville–Vanderburgh, School Corporation, 2004 WL 1178244, 187 Ed. Law Rep. 1030, 808 N.E.2d 1221 (2004). Michigan: (interscholastic athletics), Attorney General v. East Jackson Public Schools, 143 Mich. App. 634, 372 N.W.2d 638 (1985). New Jersey: (driver education), ParsippanyTroy Hills Education Assoc. v. Board of Education, 188 N.J. Super. 161, 457 A. 2d 15 (1983). North Carolina: (course fees for materials and supplies), Sneed v. Greensboro Board of Education, 299 N.C. 609, 264 S.E.2d 106 (1980). West Virginia: (textbooks, workbooks, and materials), Vandevender v. Cassell, 208 S.E.2d 436 (1974), but see above, Randolph County Board of Education v. Adams, 467 S.E.2d 150 (1995). Wisconsin: (books, pens, pencils, notebooks, and paper), Board of Education v. Sinclair, 65 Wisc. 2d 179, 222 N.W.2d 143 (1974). Held Not Valid: California: (music and sports), Hartzell v. Connell, 35 Cal. 3d 899, 201 Cal. Rptr. 601, 679 P. 2d 35 (1984); (drivers education), Driving School Assoc. v. San Mateo Union High School District, 11 Cal. App. 4th 1513, 14 Cal. Rptr. 2d 908 (1992). Georgia: (rental of books), Mississippi v. Gordy, 119 Ga. 817, 47 S.E. 171 (1904). Idaho: (transcripts of course work), Paulson v. Minidoka Country School District, 93 Idaho 469, 463 P. 2d. 935 (1970). Illinois: (handling charges for textbooks), Hamer v. Board of Education, 52 Ill. App. 3d 531, 10 Ill. Dec. 286, 367 N.E.2d 739 (1977). Indiana: (activities), Nagy v. Evansville– Vanderburgh County School Corp., 808 N.E.2d 1221 (Ind. Ct. App. 2004). Michigan: (textbooks and school supplies), Bond v. Public Schools, 383 Mich. 693, 178 N.W.2d 484 (1970). Indiana: (textbook rental), Gohn v. Akron School, 562 N.E.2d 1291 (Ind. App. 1990). Mississippi: (literary, library, and athletics fees), Morris v. Vandiver, 164 Miss. 476, 145 So. 228 (1933). Montana: (pens, pencils, workbooks, athletic equipment, supplies), Granger v. Cascade Country School District, 499 P. 2d 159 Mont. 516, 499 P. 2d 780 (1972). North Dakota: (textbooks), Cardiff v. Bismarck Public School District, 263 N.W.2d 105 (1978).
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Summation of Case Law
1. Congress can pass no laws but such as the constitution authorizes; the state can legislate on all subjects not forbidden. 2. A state statute will not be held unconstitutional merely because it is unjust or repugnant to general principles of justice or rights which are not clearly expressed in the state constitution. 3. Depending on the wording of the education article of a state constitution, it may impose a maximum duty on the state legislature to provide for public schools that are uniform and of high quality. 4. Although the cardinal rule of constitutional construction is to give effect to the intent of the framers of a constitution, it is appropriate to consider new and changing conditions not existing at the time the constitution was adopted when interpreting and applying constitutional provisions. 5. The language of the education provision of a state constitution requiring the state to provide a “uniform, efficient, safe, secure, and high quality system of free public schools” may be a limitation on the legislature’s power in that it creates both a mandate to provide for children’s education and a restriction on the execution of that mandate. 6. An education clause of a state constitution that mandates that the state’s obligation is to provide for the education of the state’s children, and specifies that the manner of fulfilling that obligation is by providing a uniform, highquality system of free public education, does not authorize additional equivalent alternatives such as public funding of vouchers for private schools. 7. A statute establishing a scholarship program requiring a department of education to move tax money earmarked for public education to an account for funding vouchers may violate a state constitution’s education clause by diverting funds that would otherwise be provided to the system of free public schools. 8. Acting within its constitutional limits, the legislature’s power to resolve issues of civic debate receives great judicial deference; however, beyond those limits, the state constitution must prevail over any enactment contrary to it.
9. Clear and unambiguous constitutional language is itself the best expression of the framers’ intent; however, if the language of a constitutional provision is ambiguous, then ordinary principles employed in statutory construction must be applied to ascertain the true intent. 10. Where a state constitution creates a strong presumption in favor of making everything that is deemed to be a necessary component of public education cost-free and a local board of education seeks to charge parents for their children’s participation in the public education, the local board bears a heavy burden in rebutting the constitutionally based presumption. 11. “Education,” within an entitlement created by a state constitution, is defined as: an act or process of imparting or acquiring general knowledge, developing powers of reasoning and judgment, and generally of preparing oneself or others intellectually for mature life; and act or process of imparting or acquiring particular knowledge or skills as for trade or profession. 12. The prevailing view is that under a “free” school system, fees cannot be charged as a requirement for students to be admitted to school nor can fees be charged for any required course in the curriculum. 13. Whatever the items that are deemed necessary to accomplish the goals of a school system and are in fact an integral fundamental part of elementary and secondary education must be provided free of charge to all students in order to comply with a constitutional mandate of free school system. 14. Reasonable construction of a state constitution does not require static doctrines but instead permits evolution and adjustment to changing conditions as well as to a varied set of facts. 15. All educational activities, curricular or extracurricular, offered to students by school districts, fall within free school guarantee of a state constitution; thus, a school district may be constitutionally prohibited from charging a fee for student participation in dramatic productions, musical performances, and athletic competitions.
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Endnotes
16. Financial hardship of the school district is no defense to violation of a constitutional free school guarantee. 17. A charter school act is constitutional unless an examination of the state constitution reveals limitations upon the legislature pertaining to the creation of charter schools. 18. A legislature has plenary authority to create laws that provide for the establishment and maintenance of the public education system; this includes any other schools, such as charter schools, and/or programs the legislature may designate to be included in the public school system. 19. A charter school act’s delegation of certain educational functions to the parents and teachers who write the charters, and to the grantees who operate the schools, does not violate the provision of a state constitution obligating the legislature to provide for a system of common schools. 20. A charter school act does not create a separate school system in violation of the provision of the state constitution obligating the legislature to provide for a system of common schools, because charter schools may be, by statute, public schools. 21. A charter school act does not amount to an unconstitutional delegation of legislative powers to a board of education or other chartering authorities.
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Research Aids
Research citations below are abbreviated as: American Law Reports (A.L.R.), American Jurisprudence, (Am.Jur.), Corpus Juris Secundum, (C.J.S.), and McQuillen Municipal Corporations (McQuillen Mun.Corp.). Explanations for each of these sources of law are found in Chapter 1 of this text. Also, see Appendix B of this book. 68 Am.Jur.2d Schools § 2, Common or Public Schools. 68 Am.Jur.2d Schools § 10, Education as a Governmental Function: Provisions Requiring a Uniform System of Education. 78 C.J.S. Schools and School Districts § 2, Definition of Public School. 113 A.L.R. 697, What Is a Common or Public School Within Contemplation of Constitutional or Statutory Provisions?
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68 Am.Jur.2d Schools § 239, Considerations Bearing on Validity or Invalidity of Fees. 16 Am.Jur.2d Constitutional Law § 64, Construction of Constitutions: General Rules of Construction. 16 C.J.S. Constitutional Law § 62, Constitution, Operation and Enforcement of Constitutional Provisions: Meaning of Language. 16B McQuillen Mun.Corp.§ 46.02.10 (3rd ed.), Public School Establishment and Government— “Public School” Defined. 78A C.J.S. Schools and School Districts § 1080, Conduct of Schools and Scholastic Activities: Textbooks and Other Instructional Materials. 41 A.L.R.3d 752, Validity of Exaction of Fees from Children Attending Elementary and Secondary Schools. 16 C.J.S. § 293, Distribution of Governmental Powers and Functions. 68 Am.Jur.2d Schools § 35, Delegation of Legislative Authority to Agencies, Boards, or Officers. Education Justice, Education Law Center, www.EducationJustice.org.
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Endnotes
1. Montesquieu, The Spirit of Laws (1748), trans. and ed. David Wallace Carrithers (Berkeley, Calif.: University of California Press, 1977), p. 130. 2. Jean-Jacques Rousseau, A Discourse on Political Economy (1758), trans. G. D. H. Cole (London: J. M. Dent and Sons, 1973), p. 149. 3. In 1760, John Adams noted in his diary that he had begun to read The Spirit of Laws. About 15 years later, Thomas Jefferson devoted 28 pages in his Commonplace Book to extracts from Montesquieu, and James Madison, in 1792, in his essay on “Spirit of Governments,” compared Montesquieu’s contributions to political philosophy to those of Francis Bacon in natural philosophy. See the introduction to Montesquieu’s The Spirit of Laws (1748), trans. and ed. David Wallace Carrithers, p. xiii. 4. Horace Mann, Tenth Annual Report of the Board of Education (Boston: Dutton and Wentworth Printers, 1847), p. 14. 5. “The Connecticut Law of 1650, Codification of 1650,” in Barnard’s American Journal of Education, Vol. 4, p. 660. Cited in Ellwood P. Cubberley, Readings in Public Education in the United States (Boston: Houghton Mifflin Co., 1934), pp. 19–20. 6. See John Lawson and Harold Silver, A Social History of Education in England (London: Methuen & Co., 1973), p. 154. 7. Ibid., p. 155. 8. Will and Ariel Durant, The Age of Voltaire, Vol. 9 (New York: MJF books, 1965), p. 438.
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Chapter 2
Historical and Legal Perspective of Public Schools
9. Ellwood P. Cubberley, A Brief History of Education (Boston: Houghton Mifflin Co., 1922), p. 374. 10. Ibid., p. 376. 11. Lawrence A. Cremin, American Education: The National Experience 1783–1876 (New York: Harper & Row Publishers, 1980), p. 125. 12. Benjamin Rush, Essays, Moral and Philosophical, 2nd ed. (Thomas and William Bradford, 1806), pp. 4, 6–7. 13. Ibid., pp. 7–8. 14. R. Freeman Butts, “Search for Freedom: The Story of American Education,” NEA Journal (March 1960), pp. 33–48. 15. John Adams, “Dissertation on the Canon and Feudal Law,” in 3 Works of John Adams, ed. C. F. Adams (1851), pp. 447, 448, cited in McDuffy v. Secretary of the Executive Office of Education, 415 Mass. 545, 615 N.E.2d 516 (1993). 16. Letter from Thomas Jefferson to George Wythe, Paris, August 14, 1786; Bernard Mayo, Jefferson Himself (Charlottesville: University Press of Virginia, 1942), p. 89. 17. Cubberley, op. cit., p. 286. 18. Ibid. General school laws were enacted in Connecticut in 1700, 1712, and 1714; Vermont in 1782, in addition to earlier statutes in Massachusetts (1647) and New Hampshire (1680). Georgia created a state system of academies in 1783. In 1795, New York provided for a state system of elementary education. Delaware established a state school fund in 1796, and Virginia enacted an optional school law in 1796. 19. Ibid., p. 288. 20. Ibid., p. 371. 21. Cremin, op. cit., pp. 133–142. 22. Ibid., p. 127. 23. Ibid., p. 125. 24. Ibid., p. 123. 25. Marvin Meyers, ed., Sources of the Political Thought of James Madison (Hanover and London: Brandeis University Press, 1973), p. 186. 26. Ibid. 27. Mann, op. cit., pp. 124–125. 28. Ibid. 29. Butts, op. cit. 30. House Journal 1822, Commonwealth of Kentucky, p. 236. 31. Ellwood P. Cubberley, Public Education in the United States, pp. 164–166. Copyright 1934, renewed 1962 by Ira S. Lillick, adapted by permission of Houghton Mifflin Co. 32. Butts, op. cit. 33. Newton Edwards, The Courts and the Public Schools (Chicago: the University of Chicago Press, 1955), p. 23. 34. Ibid., p. 24. 35. Meyer v. State of Nebraska, 262 U.S. 390, 43 S. Ct. 625 (1923). 36. Fogg v. Board of Education of Union School Dist. of Littleton, 76 N.H. 296, 82 a. 173 (1912). 37. Scown v. Czarnecki, 264 Ill. 305, 106 N.E. 276 (1914). 38. Fogg, op. cit. 39. Leeper v. State, 103 Tenn. 500, 53 S.W. 962 (1899). 40. Robinson v. Cahill, 62 N.J. 473, 303 A.2d 273 (1973). 41. This classification is a slight modification of that suggested by James M. Mize in his article entitled “San Antonio Independent School District v. Rodriguez: A Study of Alternatives Open to State Courts,” University of San Francisco Law Review, Vol. 8 (1973–74), pp. 105–111. 42. The Constitution of Virginia, 1971, Art. I, § 15. 43. Ibid., Art. VIII, §§ 1 and 2. 44. Ibid., Art I, § 15.
45. McLain v. Phelps, 409 Ill. 393, 100 N.E.2d 753 (1951). 46. Flory v. Smith, 145 Va. 164, 134 S.E. 360 (1926). 47. Louis Henkin, Gerald L. Newman, Diane F. Orentliches, and David W. Leebron, Human Rights (New York: Foundation Press, 1929), p. 4. 48. Ibid. 49. Ibid. 50. Ibid. 51. Cubberley, Public Education in the United States, p. 260. 52. Diane Ravitch, The Great School Wars, New York City, 1805–1973 (New York: Basic Books, 1974), p. 23. 53. Commonwealth v. Hartman, 17 Pa. 118 (1851). 54. See: 113 ALR 697. 55. Cubberley, Public Education in the United States, p. 386. 56. Ibid., p. 247. 57. Stuart v. School District No. 1 of Village of Kalamazoo, 30 Mich. 69 (1874). 58. Robin Cheryl Miller, 78 A.L.R. 5th 533 (originally published in 2000, updated in 2010). 59. Ibid. 60. Martha Minow, “Reforming School Reform,” 68 Fordham L. Rev. 257 (1999). 61. Ibid. 62. Dartmouth College v. Woodward, 4 Wheat 518 (1819). 63. Pierce v. Society of Sisters, 268 U.S. 355 (1925). 64. John E. Chubb and Terry M. Moe, Politics, Markets and America’s Schools (Washington, D.C.: Brookings Institution, 1989), p. 219. 65. Ibid. 66. James A. Mecklenburger and Richard W. Hostrop, Education Vouchers: From Theory to Alum Rock (Homewood, Ill.: ETC Publishers, 1972), pp. 112–113. 67. Board of Education of Central School District No. 1 v. Allen, 392 U.S. 236, 88 S. Ct. 1923 (1968). 68. Ibid. 69. See Jeffrey R. Henig, Rethinking School Choice, Limits of the Market Metaphor (Princeton, N.J.: Princeton University Press, 1994), p. 94. 70. Minow, op. cit. 71. 20 U.S.C.A. § 8061 to § 8066. 72. Ibid. 73. “Race to the Top,” ED.gov., U.S. Department of Education, http://www2.ed.gov/news/pressreleases/ 2009/06/06082009.html. 74. Ibid. 75. Arizona State Board of Charter Schools v. U.S. Department of Education, 464 F.3d 1003 (9th Cir. 2006). 76. Ibid. 77. Wilson v. State Board of Education, 75 Cal. App., 4th, 1125, 89 Cal.Rptr. 2d 745 (1999). 78. Beaufort County Board of Education v. Lighthouse Charter School Committee, 335 S. Ct. 230, 516 S.E.2d 655 (1999). 79. Villaneuva v. Carere, 85 F.3d 481 (10th Cir. 1996). 80. Council of Organizations and Others for Education About Parochiaid, Inc. v. Governor, 455 Mich. 557, 566 N.W.2d 208 (1997). 81. In re Grant of Charter School Application of Englewood on Palisades Charter School, 320 N.J. Super. 174, 727 A.2d 15 (App. Div. 1999). 82. New York Charter Schools Ass’n, Inc. v. DeNapoli, 871 N.Y.S.2d 497, 240 Ed. Law Rep. 860 (App. Div.3d Dept, 2009).
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Quoted Box Citations 83. State ex rel. Ohio Congress of Parents and Teachers v. State Board of Education, 111 Ohio St. 3d 568, 857 N.E.2d 1148 (2006). 84. Boulder Valley School District RE-2 v. Colorado State Board of Education, 217 P. 3d 918 (Colo. App. 2009), cert denied, 2009 WL 3165618 (Colo. 2009). 85. Beaufort County Board of Education v. Lighthouse Charter School Committee, op. cit. 86. Carbondale Area School District v. Fell Charter School, 829 A.2d 400 (Pa. Commw. Ct. 2003). 87. Baltimore City Board of School Commissioners v. City Neighbors Charter School, 400 Md.324, 929 A.2d 113 (2007). 88. Environmental Charter High School v. Centinela Valley Union High School District, 122 Cal. App. 4th 139, 18 Cal. Rptr. 3d 417 (2d Dist. 2004). 89. In the Matter of the Grant of the Charter School Application of Englewood on the Palisades Charter School, 164 N.J. 316, 753 A.2d 687 (2000). 90. Ibid. 91. Warner ex rel. Warner v. Lawrence, 900 A.2d 980, 210 Ed. Law Rep. (Pa. Commw. Ct. 2006). 92. Foreman v. Chester-Upland School Dist., 941 A.2d 108 (Pa. Commw. Ct. 2008). 93. 455 Mich. 557, 566 N.W.2d 208 (1997). 94. Utah School Boards Association v. Utah State Board of Education, 17 P. 3d 1125 (2001). 95. Wilson v. State Board of Education, 75 Cal. App. 4th 1125, 89 Cal. Rptr. 2d 745, 138 Ed. Law Rep. 453 (2000). 96. Council of Organization and Others for Education About Parochiaid, Inc., op. cit. 97. 41 A.L.R.3rd 755. 98. Hartzell v. Connell, 35 Cal.3d 899, 679 P. 2d 35 (1984).
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99. Arcadia Unified School District v. State Dept. of Education, 825 P. 2d 438 (Cal. 1992). 100. 41 A.L.R.3rd 755. 101. Kennedy v. County Board of Education, 214 Ala. 349, 107 So. 907 (1926). 102. Vincent v. County Board of Education, 222 Ala. 216, 131 So. 893 (1931). 103. Irvin v. Gregory, 86 Ga. 605, 13 S.E. 120 (1891). 104. Hamer v. Board of Education, 47 Ill.2d 480, 265 N.E.2d 616 (1970). 105. Mathis v. Gordy, 119 Ga. 817, 47 S.E. 171 (1904). 106. Paulson v. Minidoka County School District, 93 Idaho 469, 463 P. 2d 935 (1970). 107. Ibid. 108. Bond v. Public Schools of Ann Arbor School District, 383 Mich. 693, 178 N.W.2d 484 (1970).
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Quoted Box Citations
Jean-Jacques Rousseau, “A Discourse on Political Economy,” 1758, in The Social Contract and Discourses (London: J.M. Dent & Sons, Ltd., 1973), p. 149. John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1989), pp. 63–65. Richard S. Kay, “American Constitutionalism,” in Constitutionalism: Philosophical Foundations, ed. Larry Alexander (Cambridge: Cambridge University Press, 1998), p. 22. Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press, 1989), p. 192.
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CHAPTER 3
Role of the Federal Government The question of the relation of the States to the federal government is the cardinal question of our constitutional system. At every turn of our national development we have been brought face to face with it, and no definition either of statesmen or of judges has ever quieted or decided it. It cannot, indeed, be settled by the opinion of any one generation, because it is a question of growth, and every successive stage of our political and economic development gives it a new aspect, makes it a new question. —Woodrow Wilson, Constitutional Government in the United States, 173 (1908)
CHAPTER OUTLINE ■
INTRODUCTION
First Amendment
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THE LAND ORDINANCES
Fourth Amendment
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INDIRECT FEDERAL ROLE
Fifth Amendment
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SOURCES OF THE FEDERAL ROLE
Eighth Amendment
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STRUCTURAL PROVISIONS IN THE CONSTITUTION
Ninth Amendment
Tenth Amendment and State Sovereignty
Fourteenth Amendment
General Welfare and Education
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Liberty Rights
Commerce Clause and Education ■
Dignity Rights
SUPREMACY CLAUSE Obligation of Contracts
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EDUCATION AS A UNIQUE GOVERNMENTAL FUNCTION
RIGHTS PROVISIONS IN THE CONSTITUTION
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SUMMATION OF CASE LAW
Bill of Rights and Absorption by the Fourteenth Amendment
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RESEARCH AIDS
Eleventh Amendment Immunity ■
FUNDAMENTAL RIGHTS AND EDUCATION
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The Land Ordinances
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Introduction
Historically, the federal government has exhibited an active interest in education. Education was much on the minds of the founding fathers, who believed that public virtue and the welfare of the state were dependent on the ability of the people to properly exercise their democratic prerogatives. The founders of the American republic, influenced by John Locke, believed that the citizens were neither innately wise nor foolish, good nor bad, but were products of their learning and exhibited civic responsibilities accordingly. From this assumption, it was imminently reasonable to conclude that “mankind could be greatly improved by education.”1 Moreover, no lesser light than Kant, the great German philosopher, in the decade of the adoption of the American Constitution, had maintained that man had a duty to raise himself “from his crude state of nature” and to “diminish his ignorance by instruction,” and by education attain his own moral perfection.2 And, of course, Montesquieu, whom the American founding fathers had read so thoroughly, had stoutly maintained that education is a prime necessity of a republican form of government: “It is in a republican government that the whole power of education is required.”3 There existed an implicit desire to guarantee the perpetuation of the democratic form of government by educating and “remaking the whole people . . . to conform the principles, morals and manners of our citizens to our republican forms of government.”4 In this light, many statesmen of the new nation believed that education was the best preservative of freedom, and most republicans tied general education and dissemination of knowledge to the success of the new republic.5 In the Constitutional Convention of 1787, the matter of education and a national university was advanced by several delegates, including Madison, but to no avail. The problem lay not in the delegates’ general belief in the importance of education, but in the pressing concern that the sovereign states and not the federal government should be the proper repository of such power. The hesitancy to vest the power over education in the central government prevailed, and the state orientation of education became the pattern in the United States. Nevertheless, the interest in
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education at the federal level continued and stimulated educational progress throughout the states.
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The Land Ordinances
Even before the adoption of the Constitution, the Continental Congress enacted the Land Ordinances of 1785 and 1787, which provided impetus for creation of educational systems in all the states joining the union. Initially, the original colonies had claimed almost unlimited territory extending west beyond the Alleghenies. For purposes of mutual accord, the matter was settled in the Continental Congress in 1780, when the existing states ceded their claims to the federal government, creating a national domain. This “common estate” created a common interest and bond among the first states of the new nation, and it was from this national domain that new states were to be carved for westward expansion. Although the primary motivation of Congress was to raise revenues for the debt-ridden nation that had just emerged from the War of Independence with England, the provision for education in the ordinances caused the new states to address the issue of education at the very beginning of their statehood. The Land Ordinance of 1785 included a provision reserving the sixteenth section of every township “for the maintenance of public schools within the said township.” The purpose of this provision was to make the purchase of land more attractive to persons with families who might venture west. Regardless of the profit motive, however, the effect was a very positive force in the expansion of education. The survey plan of 1785 laid out square townships, six miles by six miles, containing a total of 36 sections. The sixteenth section, one mile by one mile (640 acres), was dedicated for schools (see Figure 3.1). Within two years after the enactment of the Ordinance Survey of 1785, in mid-July of 1787, the Continental Congress met and enacted the Ordinance of 1787, known as the Northwest Ordinance. This ordinance is included in Article III, the now-famous provision, which stated that “[r]eligion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall be forever encouraged.”
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Chapter 3
FIGURE 3.1
Role of the Federal Government
A Congressional Township North 6
5
4
3
2
1
7
8
9
10
11
12
18
17
16
15
14
13
West
East 19
20
21
22
23
24
30
29
28
27
26
25
31
32
33
34
35
36
South
The Northwest Ordinance set out the requirements necessary for territorial areas to become states. Provisions for education, habeas corpus, due process, and religious freedom were all to be provided for in the compact, which was required by the central government as a condition for a territory to become a state. The legislatures of the new states were thus required, in accordance with the Ordinance of 1785, to oversee the sixteenth-section lands, or to account for the funds if sold; the Northwest Ordinance of 1787 required that each state have an education provision in its basic law. Later, when Ohio became a state in 1802, the problem arose as to whether states could tax federal property within their boundaries. A compromise was reached that provided that states would receive 5 percent of the sale of public lands, if in turn federal property would be exempt from state taxation. These “5-percent” funds, along with income from salt lands and swamplands, added to the revenues available for the public schools. Later, as a result of Jackson’s decentralization efforts, the Surplus Revenue Deposit Act of 1836 distributed $28 million in
federal funds back to state governments, much of which was devoted to school purposes. These federal initiatives, in combination, provided an important stimulus for the states to assume responsibility for education. When the use and the sale of the land grant and the surplus revenues became inadequate to support state funding of education, the state legislatures began to move slowly toward appropriation of supplemental funds. One can only speculate as to what might have happened had the federal government not ended the inertia that retarded the creation of public schools. Perhaps some states would not have assumed the responsibility at all and would have allowed education to languish as an entirely local function or even, possibly, have allowed education to remain almost entirely in the hands of individuals or charitable and religious groups.
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Indirect Federal Role
The early method of supporting education by means of federal land grants was most notable for two particular aspects. First, the grants were made for the purpose of creating and aiding
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Indirect Federal Role FIGURE 3.2
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Land Grants Map
Land Grants for Common Schools 16th Section 16th & 36th Section Four Sections No Land Grants Source: Land Grants Map Taken from the book, Public Education in the United States, A Study and Interpretation of American Educational History, by Ellwood P. Cubberley, The Riverside Press, Cambridge Massachusetts, Copyright, 1934, p. 93.
public schools directly, thus espousing a federal interest in mass general common school education for everyone; second, the federal government exercised no control over education as a condition for receiving the grants.6 From these beginnings, it was established that the federal government was to play an indirect role in the development of public education, to serve a stimulus function without direct control of educational policy and operation. Over the years, the federal government’s role has remained one of indirect support of education. Never directly controlling education, but generally in a positive and affirmative manner, the Congress has, from time to time, fashioned educational policy to address certain perceived national interests. The first Morrill Act, passed by Congress in 1862, like the early land grants, shaped American educational policy by providing a grant of land to each state; the land was to be sold, with the proceeds to be used for the endowment, maintenance and support of at least one college where the leading object shall be, without excluding other scientific and classical studies
and including military tactics, to teach such branches of learning as are related to agriculture and mechanic arts in such manner as the legislatures of the states may respectively prescribe.7
In relying on this Act, the great land-grant colleges were established and supported. Herein, Congress advanced a role of higher education that transcended the traditional, narrow European model by expanding and giving credibility to the study of agriculture and engineering, disciplines that a new and developing nation so badly needed. Subsequent legislation—the second Morrill Act of 1890, the Hatch Act of 1887, the Adams Act of 1906, and other provisions—expanded the activities of the land-grant colleges and introduced grants-in-aid as another type of federal support. Following these initial steps, the federal government has continued to provide assistance to various phases of education. Categorical grants that were geared toward bringing about a particular educational emphasis became the method of allocation most relied upon. All of the federal programs combined, however, constitute a small portion of all the revenues
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Chapter 3
Role of the Federal Government
necessary for elementary and secondary schools. The role of the federal government is conveyed by Congress to be one of supplementary assistance to the state systems of education. Congress has sought to shape educational policy through the indirect means of categorical grants, giving direction to certain educational programs once states accept the funds. In each instance, the states have the option of accepting or rejecting the funds, but once they are accepted, the states must abide by the federal guidelines for use of the resources. As states have accepted the conditions of these categorical grants over the years, the role of the federal government in guiding educational choices has become more predominant, and some commentators have maintained that too much control today is vested in the federal government. As a result, even though the federal government’s role in education is said to be indirect and secondary, myriad federal regulations and conditions bear down quite heavily on the public schools and have led some to question the legal scope of federal powers. Unfortunately, the legal definition of the role of the federal government in education is as hazy and uncertain as the legal parameters of our federal system of government itself. Courts today continue to ponder the nature of the states’ relationship to the central government not only in education, but in all areas of domestic activity.
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Sources of the Federal Role
The federal government’s authority to influence educational policy emanates from two primary sources: (1) the structural provisions in the body of the U.S. Constitution that frame our federal system by delegating functions to the three branches of the central government and (2) the rights provisions of the Constitution found in the Bill of Rights and other amendments designed to protect individual liberties and freedoms from inappropriate government intrusion or discrimination. The structural provisions are “shalls” that delegate power to the legislative, executive, and judicial branches of the federal government for the purpose of creating “a more perfect Union.” Article I of the Constitution, the provision that forms the Congress, states that all legislative powers “shall be vested in a Congress.” Article II vests
the executive power of the federal government in the president, whereas Article III vests the judicial power of the United States in “one supreme court” and such inferior courts as Congress may ordain and establish. The legislative powers in Article I, as prescribed principally under Section 8, give Congress the power to lay and collect taxes, pay debts, provide for the common defense and the general welfare, and regulate commerce. It is this article of the Constitution that has been interpreted to give the federal government the authority to play a definitive, though indirect, role in the education of the people. Also critical to the structure of federalism is the Supremacy Clause, Article VI, Clause 2, that emphasizes that the U.S. Constitution and laws exacted by Congress must prevail when in conflict with state constitutional provisions or state statutes. The structure of the federal system is also shaped by certain prohibitions in the Tenth and Eleventh Amendments. The Tenth Amendment makes it clear that the powers not delegated to the federal government are reserved to the states or to the people. The Eleventh Amendment limits the judicial power of the federal government to preserve state immunity from liability. Thus, in the body of the Constitution and these two amendments, we find the parameters of the role of the federal government in education as interpreted and applied by the courts. This chapter is primarily concerned with the structural provisions, which have implications for the federal control of education as interpreted by the Supreme Court. The federal role in education is further defined by rights provisions of the U.S. Constitution found in the Bill of Rights and other constitutional amendments that protect individual liberties and freedoms. These rights provisions are generally couched in negative language, “shall nots,” that prohibits government denial of human and civil rights. Instead of granting power, these rights serve as guarantees and limits on the central government. These amendments are laced with prohibitions, such as “Congress shall make no law,” the right of the people “shall not be infringed,” or “shall not be violated,” guaranteeing natural and “self-evident” rights of the individual against overzealous government. The list of inherent individual rights that are mentioned in the Constitution is, however, not exhaustive. There was an implicit assumption by the framers
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Structural Provisions in the Constitution
that it was unnecessary to list specifically all the “inalienable rights” that are “endowed by the creator” in order for them to be protected against unreasonable government action. As observed elsewhere in this chapter, the word education is not found in either the structural provisions or the rights provisions of the U.S. Constitution. However, as will be seen later in this chapter, Congress can tax and spend for education by implication relying on Article I, Section 8, the General Welfare Clause. On the other hand, the U.S. Supreme Court has categorically rejected the idea that education is a fundamental right that can be explicitly or implicitly recognized as worthy of constitutional protection. In Rodriguez, the Supreme Court held that education is not a fundamental right, writing that “[e]ducation, of course, is not among the rights afforded explicit protection under our Federal Constitution. Nor do we find any basis for saying it is implicitly so protected.” 8 The Court has reiterated this position in Plyler 9 and Papason 10 with no indication of a change of mind. These cases will be discussed later in detail. There is a great irony in the fact that education is not recognized as a fundamental right under the federal Constitution, particularly in view of the fact that public universal education first came to fruition in the United States as an essential aspect of the democratic form of government. Moreover, the right to education has become a standard part of major international treaties to which most developed countries are signatories.11 As explained in the Chapter 21 of this book, several state supreme courts have held that education is a fundamental right. However, the U.S. Supreme Court has been reluctant to recognize that same right to exist under the U.S. Constitution. Yet, the role of the federal government in the provision of education extends beyond the legal question of the fundamentality of education. Other individual rights under the Bill of Rights, including freedom of religion, speech, assembly, privacy, due process, and equal protection, have developed into a formidable array of judicial precedents that play an important role in circumscribing and defining public education policy. Thus, both Congress, through its delegated structural powers, and the courts, through
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their recognition of individual rights emanating from the Bill of Rights and other amendments, combine to form the context in which the federal government influences public education. This chapter discusses the pertinent precedents regarding education in our federal system. The structural provisions of the U.S. Constitution are presented first, including the Tenth and Eleventh Amendments, followed by the rights provisions, including the Bill of Rights and attendant amendments pertaining to individual liberties and freedoms.
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Structural Provisions in the Constitution
As observed previously, the federal power to educate the people in the United States is determined by the nature of our federal system of government. The central government has only delegated powers that are found principally in Article I, Powers Delegated to Congress. In order to ensure that the central government could not encroach on the residual powers of the states and the people, the Tenth Amendment was added to the Bill of Rights and ratified by the states in 1791. The Eleventh Amendment was added in 1798 to protect the sovereign immunity of the states from liability that could have been imposed by Congressional statute or by common law. These parts of the Constitution, relevant to education, that delegate powers to the central government, along with the limiting amendments, are shown in Box 3.1 and discussed in the following sections.
NATURE OF CONSTITUTION A constitution is different from ordinary statute law. It has two crucial functions. First, it sets up and sets out the structure of government—its permanent shape, its organs or parts, and their rights, duties, boundaries, and limits. Second, it can list the essential rights of the citizen; this list is supposed to limit what government is allowed to do— it is a list, in other words, of rights that the state must not and cannot infringe [emphasis added]. —Lawrence A. Friedman
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BOX 3.1
Role of the Federal Government
Structural Provisions in the U.S. Constitution Most Pertinent to Federalism and Education
Article I, § 1. Powers of Congress “All legislative Powers herein granted shall be vested in a Congress of the United States. . . . ” Article I, § 8. [1] General Welfare Clause “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general welfare. . . . ” Article I, § 8. [3] Commerce Clause The Congress shall have Power “To regulate Commerce with foreign nations, and among the several States . . . ” Article I, § 10. [1] Contracts Clause “No State shall . . . pass any . . . Law impairing the Obligation of Contracts.” Article II, § 1. [1] Powers of the President “The executive Power shall be vested in a President of the United States of America. . . . ”
TENTH AMENDMENT AND STATE SOVEREIGNTY The powers of the federal government are circumscribed by delegation within the frame of the Constitution and are specifically limited by the Tenth Amendment, which provides that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people.” Education is not mentioned in the Constitution and is, therefore, presumably reserved to the states or to the people. The Tenth Amendment was intended to reconfirm the implicit understanding at the time of the Constitution’s adoption that powers not granted to the central government were reserved.12 James Madison, at the urging of Jefferson, sponsored the Tenth Amendment. In the course of debate that took place while the amendment was still pending, Madison declared: “Interference with the power of the States was no constitutional criterion of the power of Congress. If the power was not given, Congress could not exercise it; if given, they might exercise it, although it should interfere with the laws, or even the Constitutions of the States.”13
Article III, § 1. Powers of the Judiciary “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Article VI, Clause 2. [2] Supremacy Clause “This Constitution, and the Laws of the United States . . . shall be the supreme Law of the Land. . . . ” Tenth Amendment. Residual Powers “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Eleventh Amendment. State Sovereignty “The Judicial power of the United States shall not be construed to extend to any suit in law or equity . . . against one of the United States. . . . ”
Standing alone, the Tenth Amendment bears witness that our system of government assures separation of powers and prevents federal activity without express or implied constitutional authority. As such, there is a presumption of state power, which effectively places the burden on the federal government to justify in court its involvement in affairs that may have been presumed to be left to the states. The U.S. Supreme Court now sitting has enunciated a very strong opinion and, indeed, a constitutional philosophy that emphasizes the sovereignty of states in the design of our federal system. The Supreme Court emphatically maintains that states do not derive their powers from the U.S. Constitution, but, rather, are possessed of certain inherent and sovereign powers of independent governmental entities, some of which were ceded or delegated to the central government by the U.S. Constitution. This view is not without controversy, and the extent of this ceding of powers is the source of substantial disagreement. The present balance reflects the opinion of five justices of the U.S. Supreme Court who are generally viewed as the conservative majority of the Court. This Court has said that
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Structural Provisions in the Constitution
“the founding document [the U.S. Constitution] ‘specifically recognizes the States as sovereign entities,’ ” 14 and by so concluding, implicitly expands the concept of state sovereignty from the more limited “quasi-sovereigns,” or limited sovereign philosophy as espoused by Justice Cardoza, that is contrary to the current more full-blown idea that states have a pronounced and weighty, inherent and original constitutional sovereignty. The concern over the balance between the powers of the central government and state government was, of course, the principal issue that animated the debates in the original 13 states when their conventions were held to ratify the U.S. Constitution. At that time, the Anti-Federalists argued that a Bill of Rights and, in particular, a Tenth Amendment, was necessary to assert clearly and positively that states retained all those preexisting, sovereign rights that were not specifically delegated to the new central government. Moreover, the Anti-Federalists were concerned that the Supremacy Clause, when implemented by the federal courts, would “sweep aside all prior claims of states’ rights and authority.”15 The importance of this structural issue in the formation of the U.S. Constitution cannot be overstated; in this regard, the Supreme Court has said: “The Constitution never would have been ratified if the States and their courts were to be stripped of their sovereign authority except as expressly provided by the Constitution itself.” 16 Thus, the Anti-Federalists’ arguments that supported the passage of the Bill of Rights were primarily concerned with unstated rights and prerogatives of the states and of the people and with whether these rights could ever be preserved if they were not specifically designated. The Supreme Court said in Hall that [I]n view of the Tenth Amendment’s reminder that powers not delegated to the Federal Government nor prohibited to the States are reserved to the States or to the people, the existence of express limitations on state sovereignty may equally imply that caution should be exercised before concluding that unstated limitations on state power were intended by the Framers.17
Thus, the Supreme Court makes it clear that: (1) states retain inherent sovereign powers that were not ceded or given up to the federal
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government in the Constitution; (2) the federal government has only those powers delegated; and (3) the Tenth Amendment is a positive expression that verifies the existence of the inherent state sovereignty, as well as a formal declaration of the preservation of the rights of the people.18 Accordingly, it is the position of the current Supreme Court that the inherent sovereign powers of the states are to be found and preserved in the design of the “federative”19 system in the Constitution where “[t]he Federal Government, by contrast, ‘can claim no powers which are not granted to it by the Constitution, and the powers actually granted must be such as are expressly given, or given by necessary implication.’ ”20 This presumption, on behalf of the states, provides a constitutional basis through which a state can seek legal redress in challenging a federal statute. Without the Tenth Amendment, no such action would be possible. In the face of such challenges, the federal government has been forced, on several occasions, to identify other constitutional provisions that justify its activity in the regulation of functions that states have assumed to be within their prerogative. In this light, the federal government does not possess general police powers, as such, and in justifying its many educational activities, it must assert implied powers of the general welfare and commerce clauses of the Constitution. The Tenth Amendment, therefore, assures that federal control over education is secondary to the power of the states. Although a state can create, organize, and reorganize school districts; employ and dismiss personnel; prescribe curriculum; establish and enforce accreditation standards; and govern all management and operation functions of the public schools directly, the federal government can intervene only in a peripheral and oblique way.
GENERAL WELFARE AND EDUCATION Federal power to become engaged in education emanates principally from the General Welfare Clause of Article I, Section 8, which provides, “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general welfare of the United States. . . .”21 The interpretation of the General Welfare Clause, also known as Spending Clause, has
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been the subject of much debate and controversy. James Madison contended that the clause “amounted to no more than a reference to other powers enumerated in subsequent clauses of the same section; that, as the United States is a government of limited and enumerated powers, the grant of power to tax and spend for the general welfare must be confined to the enumerated legislative fields committed to the Congress.”22 Madison pointed out that the framers of the Constitution borrowed the phrase from the Articles of Confederation, and it was not looked upon as a phrase to extend the parameters of federal authority. In taking an opposing point of view, Hamilton maintained that the article conferred upon the Congress a general substantive power to tax and spend for purposes that would provide for the general welfare of the United States. The Supreme Court adopted the Hamiltonian philosophy in a 1936 case, United States v. Butler, which tested the constitutionality of President Roosevelt’s Agriculture Adjustment Act.23 Even though the Supreme Court struck down the Agricultural Adjustment Act in 1936, it nevertheless interpreted the General Welfare Clause as giving Congress broad powers. In so doing, the Court thus adopted the Hamiltonian expansive viewpoint and rejected Madison’s more restrictive view. The Court said, “Congress is expressly empowered to lay taxes to provide for the general welfare. Funds in the Treasury, as a result of taxation, may be expended only through appropriation, Article 1, § 9, cl. 7. They can never accomplish the objects for which they were collected, unless the power to appropriate is as broad as the power to tax. The necessary implication is that public funds may be appropriated ‘to provide for the general welfare of the United States.’ ” The next year, in Helvering v. Davis (1937),24 the Supreme Court upheld the Social Security Act, and in so doing ruled conclusively that Congress can tax and spend under the General Welfare Clause. In this case, the Supreme Court finally adopted the broad interpretation of the meaning of the General Welfare Clause. In approving the constitutionality of President Roosevelt’s Social Security Act, the Court pointed out that the Great Depression of 1929 and the rampant unemployment caused a “nationwide calamity” that could not be resolved by the
individual states, and it was a problem of national dimensions affecting the general welfare of the nation. Spending of federal tax monies under Article I, Section 8, was therefore well justified. It was this decision that broke the constitutional logjam of a conservative Supreme Court that had earlier prompted President Roosevelt’s threat to “pack” the Court. Importantly, the Court in Helvering observed that henceforth defining of what was in the national or general need of the nation was to be determined by Congress and not the courts and, unless Congress acted imprudently or arbitrarily, the Court would not intervene. The Court said: The line must still be drawn between one welfare and another, between particular and general. Where this shall be placed cannot be known through a formula in advance of the event. There is a middle ground or certainly a penumbra in which discretion is at large. The discretion, however, is not confided to the courts. The discretion belongs to Congress, unless the choice is clearly wrong, a display of arbitrary power, not an exercise of judgment. This is now familiar law.25
With this elastic definition of general welfare, Congress is free to define education as general welfare and to tax and appropriate funds for educational purposes. With the prerogative to broadly define general welfare as inclusive of education, Congress then looks to the taxing power of the clause for the instrumentality to “provide” for education. Jefferson had explained the power and purpose of the clause in this manner: [T]he laying of taxes is the power and the general welfare the purpose for which the power is to be exercised. They [Congress] are not to lay taxes ad libitum for any purpose they please, but only to pay the debts or provide for the welfare of the Union. In like manner, they are not to do anything they please to provide for the general welfare, but only to lay taxes for that purpose [emphasis added].26
This clause therefore expresses not an unlimited power, only a qualified one. Congress has never acted to assert an unlimited power to tax, and the Supreme Court has therefore never been compelled to decide the point as it directly applies to education.27 The last sentence in Jefferson’s statement addresses the issue quite clearly, that Congress cannot provide for the general welfare in any manner other than through its taxing and
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Structural Provisions in the Constitution
appropriation power. Therefore, with regard to education, this means that Congress can involve itself in educational matters only through the indirect means of the appropriation of funds and does not have the power to directly legislate changes in education. It is for this reason that Congress has so consistently used the categorical aid approach to bring about change in education. Constitutionally, regulation of educational functions can be acquired only through conditional grants. The federal government cannot, therefore, affirmatively and directly require that states alter educational policy; this would be an affront to state autonomy. Constitutionally, the issue is really one of inducement versus compulsion, as one commentator has observed that “[t]he Constitution counts upon the necessary participation of the states . . . not by direct command but by incentive of not losing the opportunity of participation.”28 In matters of education, then, Congress can effect change only through persuasion or by giving the states an option that allows a state to act of its own volition. A choice of accepting the grant and the conditions attached thereto must be provided to the state. Under the General Welfare Clause, then, a state may elect not to participate in a federal program if the conditions are educationally, financially, or legally offensive.29 Federal expenditure of taxation dollars for No Child Left Behind is justified under the General Welfare (Spending) Clause. The No Child Left Behind Act (Public Law 107–110) is a consolidation of several federal programs for elementary and secondary education. NCLB, as it is commonly known, was signed into law by George W. Bush on January 8, 2002. The NCLB act encompassed and amended in principle part the old Title I of the Elementary and Secondary Education Act of 1965 (ESEA). The entire legislation of NCLB reauthorizes a range of federal education funding programs around the central thesis of increasing the performance of public schools, requiring accountability of states and local school districts, and promoting parental choice. Within the scope of federal power to affect education policy as justified by the General Welfare Clause (Spending Clause), Article I, Section 8 of the Constitution, the federal
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government provides funding through NCLB for national purposes and to acquire the money the states must agree to certain conditions. The principal overall condition of the agreements are (a) to improve academic performance as measured by achievement tests, (b) to adhere to required measures of accountability for the programs and funds, and (c) to not supplant state and local money with federal funds. The means of measuring academic performance and the penalties for nonperformance are the principal and most controversial aspects of the new NCLB legislation. Title I, the heart of NCLB, ascribes an encompassing goal to ensure that “all children have a fair, equal, and significant opportunity to obtain a high quality education and reach, at a minimum, proficiency on challenging State academic achievement standards and State academic assessments.”30 To effectuate this purpose, the statute endeavors to meet the educational needs of “low-achieving children in . . . highestpoverty schools,” and of “limited English proficient children, migratory children, children with disabilities, Indian children, neglected or delinquent children, and young children in need of reading assistance.” The law calls for reduction in the achievement gap between high- and low-performing children and, importantly, the Act holds schools, local educational agencies, and states accountable for improving the academic achievement of all students.31 To achieve these broad ends the NCLB requires that school districts must show that students have achieved Adequate Yearly Progress (AYP) in designated subject matter areas. Much of the controversy surrounding NCLB has to do with the issue of federalism and the bounds of the General Welfare Clause. The federalism question comes into play in that the recipient state must agree to a complex performance regime affecting all children in order to obtain a rather limited allowance of federal funds. The categorical purpose of NCLB is hereby used as torque to institute a testing regimen for all children. Objection to the program has been primarily concerned with overreaching mandate and underfunding of the real costs of the program. In fact, federal appropriations for funding NCLB do fall below the estimates of full implementation and the authorization levels established by Congress. The result is that the federal
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government exercises rather extensive control while contributing a relatively minor portion of the total expenditures for public elementary and secondary education. Yet, all states have made application for NCLB funding, have agreed to certain conditions given assurances, and, indeed, have contracted with the federal government to relinquish certain state autonomy over public schools in consideration for receipt of the federal funds. Litigation, to date, has only marginally helped define the limits of federalism and the parameters of inducement or coercion between the states and the federal government. As we shall see later in this book, in discussion of contractual agreements, both parties must be fully aware of the conditions to the meeting of the minds or a valid contract has not occurred. The Supreme Court has held that Congress has broad power under the General Welfare (Spending) Clause to set the terms and conditions it requires in the disbursement of federal money to the states32; however, Congress cannot attach conditions that are not clearly understood by the States. In Pennhurst, the Supreme Court said that the conditions by Congress must be set out “unambiguously.”33 In Rowley, a case dealt with in more detail in Chapter 10 of this book, the Supreme Court said that “Legislation enacted pursuant to the spending power is much in the nature of a contract,”34 and therefore to be bound by “federally imposed conditions,” recipients of federal funds must accept them “voluntarily and knowingly.”35 In 2006, in Arlington, the Supreme Court pointed out that “we must view (the federal legislation) from the perspective of a state official who is engaged in the process of deciding whether the State should accept (federal) funds and the obligations that go with these funds.”36 Thus, the Supreme Court defines the balance of federalism, at least to some extent, in terms of standard common law contract that requires both parties to clearly understand what they are getting into. In Arlington, the Court further explains that the hypothetical state official, who agrees to the state’s side of the contract, must be able to comprehend what commitments the state is promising to perform in order to get the money. The Court explained, “We must ask whether such a state official would clearly understand”37 the “obligations” required by the federal act that is
providing the funds. According to the Court, the federal law must furnish “clear notice” regarding the consequences that result from the State’s acceptance of the funds.38
A PUTATIVE CONTRACT When Congress acts pursuant to its spending power, it generates legislation ‘much in the nature of a contract: in return for federal funds, the States agree to comply with federally imposed conditions.’ In interpreting language in spending legislation, we thus ‘insist that Congress speak with a clear voice,’ recognizing that ‘[t]here can, of course, be no knowing acceptance [of the terms of the putative contract] if a State is unaware of the conditions [imposed by the legislation] or is unable to ascertain what is expected of it. —Davis v. Monroe County Board of Education, quoting Pennhurst State School and Hospital v. Halderman
The boundaries of Congress’s authority to require obedience to its national interests is illustrated by a 2006 higher education case. Because of the domestic discord in the United States caused by the invasion of Iraq, several law schools throughout the United States denied military recruiters access to facilities on their campuses. In response, Congress passed a law, the Solomon Amendment, requiring institutions of higher education to provide access to military recruiters upon pain of loss of federal funds. The federal funds covered by the Solomon Amendment (10 U.S. C.A. 983 (d)(1)(supp. 2005)) include funding from the U.S. Departments of Defense, Homeland Security, Transportation, Labor, Education and Health and Human Services, the Central Intelligence Agency, and the National Nuclear Security Administration of the Department of Energy. Funds provided for student financial assistance are not jeopardized by failure to adhere to the Act (§ 983 (d)(2)). Denial of access to military recruiters would result in loss of federal funding not merely for a law school but for the entire university as well. Plaintiffs claimed, among other things, that the Solomon Amendment’s broad reach across such a range of federal funds in penalizing institutions
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Structural Provisions in the Constitution
of higher education exceeded Congressional authority under the General Welfare Clause. Congressional justification for the Solomon Amendment could arguably have been tied to Congress’ power to “provide for the common Defense,” “(t)o raise and support Armies,” and “(t)o provide and maintain a Navy.” In Article I, § 8, cls. 1., however, Congress sought justification under the General Welfare Clause instead. The Supreme Court ruled for Congress upholding the Solomon Amendment as a constitutionally valid application of the General Welfare Clause. In this regard, the Court concluded simply that, “Congress is free to attach reasonable and unambiguous conditions to federal financial assistance that educational institutions are not obligated to accept.”39 The delicate balance of federalism when applied to education can at times become almost unintelligible for states—making their understanding of the “putative contract” with the federal government uncertain as to the states’ contractual obligations. For example, Rodney Paige, U.S. Secretary of Education, appointed by George W. Bush, erroneously led states to believe in an oral presentation that states would not be required to use their own resources to finance unfunded federal mandates under NCLB. Paige said that “there is language in the bill (NCLB) that prohibits (the federal government) requiring anything that is not paid for,”40 suggesting that waivers would be granted to states when the federal government did not fund NCLB requirements. Then later contradicting himself, Paige said in a speech to the National Urban League, that “if a state decides to accept the federal funds [offered under the NCLB], then it’s required to implement the law in its entirety.” 41 Paige then granted no waivers of NCLB educational requirements in spite of the fact that the federal government had appropriated insufficient funds for the law’s implementation. Paige’s incoherence fueled a state challenge to NCLB regulations relying on the Pennhurst42 criterion that conditions state receipt of federal funds in clear and “unambiguous” terms. The situation led to extended litigation in which the city school district of Pontiac, Michigan, sued the U.S. Secretary of Education claiming that the Supreme Court’s Spending Clause standards as enunciated in Pennhurst had been violated.
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A federal district court dismissed the complaint,43 but a three-judge panel of the Sixth Circuit Court of Appeals reversed the district court.44 However, the story did not end there. On rehearing, the Sixth Circuit Court, en banc, 2009, vacated the decision of the three-judge panel and scheduled a rehearing in which all 16 judges would be sitting. The resulting decision of the entire court was effectively a non-decision, with the opinions of the judges evenly split. Because of the inability of the court to definitively settle the issue, the dismissal of the Pontiac School Districts’ complaint prevailed. It is, however, worthy of note that one-half of the judges who believed that the Pontiac School District should prevail believed that while Paige’s interpretation of NCLB was not clearly “frivolous,” it nevertheless was so careless as not to give “clear notice to the states of their obligation.”45 Concerns about NCLB’s unfunded mandates have resulted in other litigation, but none yet to reach the Supreme Court. The ambiguity issue arose in an Illinois case in which a perceived conflict developed between NCLB and the Individuals with Disabilities Education Act (IDEA). Plaintiffs claimed uncertainty as to which law prevailed after several amendments to both; and the court dismissed the case for failure of plaintiffs to state a claim.46 Other cases have addressed the ambiguity issue, but have not augmented the understanding of the federalstate relationship under the Spending Clause.47 The U.S. Court of Appeals, Fourth Circuit has summarized its own reading of the precedents in attempting to define a balance of federalism pertaining to education.48 This court noted that Congress may exercise its spending power to impose conditions on grants of federal funds, but such conditions must be within certain restraints, which are: 1. The exercise of the spending power must be for the general welfare, 2. The conditions must be stated unambiguously, 3. The conditions must bear some relationship to the purpose of federal spending, 4. The conditions for the expenditures must not violate some other constitutional command, and 5. The financial inducement offered by Congress must not be so coercive as to pass the point at which pressure becomes compulsion.49
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In the case of South Dakota v. Elizabeth H. Dole, Secretary, U.S. Department of Transportation, 483 U.S. 203, 107 S.Ct. 2793 (1987), the Supreme Court upheld a requirement that states set federally specified drinking and driving laws in order to receive federal transportation subventions as within the power of Congress under the Spending Clause. However, Justice O’Connor, in a vigorous dissent, argued that the majority opinion gave excessive reach to congressional power. In Arlington (2006) below, the Supreme Court now appears to agree with Justice O’Connor.
Federal Legislation Enacted Under the Spending Clause Must Be Clear and Unambiguous as to the Obligations Required of the States
Arlington Central School District Board of Education v. Murphy Supreme Court of the United States, 2006 548 U.S. 291, 126 S. Ct. 2455
Justice ALITO delivered the opinion of the Court. The Individuals with Disabilities Education Act (IDEA or Act) provides that a court “may award reasonable attorneys’ fees as part of the costs” to parents who prevail in an action brought under the Act. 111 Stat. 92, 20 U.S.C. § 1415(i)(3)(B). We granted certiorari to decide whether this fee-shifting provision authorizes prevailing parents to recover fees for services rendered by experts in IDEA actions. We hold that it does not. Respondents Pearl and Theodore Murphy filed an action under the IDEA on behalf of their son, Joseph Murphy, seeking to require petitioner Arlington Central School District Board of Education to pay for their son’s private school tuition for specified school years. Respondents prevailed in the District Court, and the Court of Appeals for the Second Circuit affirmed. As prevailing parents, respondents then sought $29,350 in fees for the services of an
educational consultant, Marilyn Arons, who assisted respondents throughout the IDEA proceedings. The District Court granted respondents’ request in part. It held that only the value of Arons’ time spent between the hearing request and the ruling in respondents’ favor could properly be considered charges incurred in an “action or proceeding brought” under the Act. This reduced the maximum recovery to $8,650. The District Court also held that Arons, a nonlawyer, could be compensated only for time spent on expert consulting services, not for time spent on legal representation, but it concluded that all the relevant time could be characterized as falling within the compensable category, and thus allowed compensation for the full $8,650. The Court of Appeals for the Second Circuit affirmed. 402 F.3d 332 (2005). Acknowledging that other Circuits had taken the opposite view, the Court of Appeals for the Second Circuit held that “Congress intended to and did authorize the reimbursement of expert fees in IDEA actions.” . . . We granted certiorari to resolve the conflict among the Circuits with respect to whether Congress authorized the compensation of expert fees to prevailing parents in IDEA actions. We now reverse. Our resolution of the question presented in this case is guided by the fact that Congress enacted the IDEA pursuant to the Spending Clause. Like its statutory predecessor, the IDEA provides federal funds to assist state and local agencies in educating children with disabilities “and conditions such funding upon a State’s compliance with extensive goals and procedures.” Congress has broad power to set the terms on which it disburses federal money to the States, but when Congress attaches conditions to a State’s acceptance of federal funds, the conditions must be set out “unambiguously,” see Pennhurst State School and Hospital v. Halderman. “[L]egislation enacted pursuant to the spending power is much in the nature of a contract,” and therefore, to be bound by “federally imposed conditions,” recipients of federal funds must accept them “voluntarily and knowingly.” Pennhurst. States cannot knowingly accept conditions of which they are “unaware” or which they are “unable to ascertain.” Thus, in the present case, we must view the IDEA from the perspective of a state official who is engaged in the
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Structural Provisions in the Constitution
process of deciding whether the State should accept IDEA funds and the obligations that go with those funds. We must ask whether such a state official would clearly understand that one of the obligations of the Act is the obligation to compensate prevailing parents for expert fees. In other words, we must ask whether the IDEA furnishes clear notice regarding the liability at issue in this case. ... The governing provision of the IDEA, 20 U.S.C. § 1415(i)(3)(B), provides that “[i]n any action or proceeding brought under this section, the court, in its discretion, may award reasonable attorneys’ fees as part of the costs” to the parents of “a child with a disability” who is the “prevailing party.” While this provision provides for an award of “reasonable attorneys’ fees,” this provision does not even hint that acceptance of IDEA funds makes a State responsible for reimbursing prevailing parents for services rendered by experts. Respondents contend that we should interpret the term “costs” in accordance with its meaning in ordinary usage and that § 1415(i)(3)(B) should therefore be read to “authorize reimbursement of all costs parents incur in IDEA proceedings, including expert costs.” This argument has multiple flaws. For one thing, as the Court of Appeals in this case acknowledged, “ ‘costs’ is a term of art that generally does not include expert fees.” The use of this term of art, rather than a term such as “expenses,” strongly suggests that § 1415(i) (3)(B) was not meant to be an open-ended provision that makes participating States liable for all expenses incurred by prevailing parents in connection with an IDEA case—for example, travel and lodging expenses or lost wages due to time taken off from work. . . . Thus, the text of 20 U.S.C. § 1415(i)(3)(B) does not authorize an award of any additional expert fees, and it certainly fails to provide the clear notice that is required under the Spending Clause. . . . In sum, the terms of the IDEA overwhelmingly support the conclusion that prevailing parents may not recover the costs of experts or consultants. Certainly the terms of the IDEA fail to provide the clear notice that would be needed to attach such a condition to a State’s receipt of IDEA funds. . . .
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Finally, respondents vigorously argue that Congress clearly intended for prevailing parents to be compensated for expert fees. They rely on the legislative history. . . . Whatever weight this legislative history would merit in another context, it is not sufficient here. Putting the legislative history aside, we see virtually no support for respondents’ position. Under these circumstances, where everything other than the legislative history overwhelmingly suggests that expert fees may not be recovered, the legislative history is simply not enough. In a Spending Clause case, the key is not what a majority of the Members of both Houses intend but what the States are clearly told regarding the conditions that go along with the acceptance of those funds. Here, in the face of the unambiguous text of the IDEA . . . we cannot say that the legislative history on which respondents rely is sufficient to provide the requisite fair notice. . . . We reverse the judgment of the Court of Appeals for the Second Circuit and remand the case for further proceedings consistent with this opinion. It is so ordered.
CASE NOTES 1. As noted above, federal funding of education, justified under the General Welfare Clause, assumes the nature of a contractual agreement between the recipient state and the granting federal government. States must, of course, abide by any such agreement and expend the federally distributed dollars in accordance with the agreement. If funds are misused by a state, then the federal government can recover the funds, or some portion thereof, as determined by a federal audit. Such was the situation in a case regarding misused ESEA funds by the states of New Jersey and Pennsylvania in which the Supreme Court held that the federal government’s recovery and imposition of liability on a state for inappropriate use of federal monies does not interfere with state sovereignty in violation of the Tenth Amendment. Bell v. New Jersey and Pennsylvania, 461 U.S. 773, 103 S. Ct. 2187 (1983). 2. Regarding recovery by the federal government of funds misspent by a state, the Supreme Court has ruled that a state is not retroactively liable for Title I ESEA funds
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where the U.S. Secretary of Education sought amendments to the Act to earlier state obligations. The Supreme Court, in a case involving a claim by the federal government against New Jersey for the return of allegedly misspent monies, said that, “Practical considerations related to the enforcement of the requirements of grant-in-aid programs . . . suggest that expenditures must presumptively be evaluated by the law in effect when the grants are made,” and are not subject to laws made after the fact. 3. A standard feature of the contractual agreement between state governments and the federal government as a condition of receiving federal funds is that state and local funds will not be “supplanted” by federal funds. This means that state or local funds will not be reduced or replaced by federal dollars. Federal dollars are in virtually all instances meant to be supplemental. If supplanting is shown to have transpired by a fiscal audit, then the federal government can recover the requisite funds from state. The federal government is not required to show that the misuse of federal funds was in bad faith. Regardless of a bad faith showing, the state is liable for misuse of federal funds in supplanting of expenditures. Where Title I, ESEA, funds were not used in accordance with the law, but in good faith, the U.S. Supreme Court held that the state was nevertheless liable to return the funds as a condition of the federal-state Title I nonsupplanting agreement. Bennett v. Kentucky Dept. of Ed., 470 U.S. 656, 105 S. Ct. 1544 (1985), Bennett v. New Jersey, 470 U.S. 632, 10 S. Ct. 555 (1985). 4. The NCLB Act does not provide a basis for judicial standing for individuals to enforce provisions of the Act against states. The only remedy for state noncompliance of requirements of the Act is the withholding of federal funds from the state by the U.S. Secretary of Education. See: Association of Community Organizations for Reform Now v. New York City Department of Education, 269 F. Supp. 2d 910 (S.D.N.Y. 2003); Center for Law and Education v. Department of Education, 396 F.3d 1152 (D.C. Cir. 2003); Fresh Start Academy v. Toledo Board of Education, 363 F. Supp. 2d 910 (N.D. Ohio 2005).
COMMERCE CLAUSE AND EDUCATION Congress has relied on the Commerce Clause to require certain actions by states. Quite beyond the limitations governing general welfare, the Congress has power under this clause to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”50 Education can be affected by congressional action pursuant to this clause in many different ways, but most notably safety, transportation, and labor regulations have touched education. Although one would naturally assume that the term commerce included commercial activity—buying, selling, and trading goods to and fro among states—the definition, as applied by the Supreme Court, has been given broader meaning. In Gibbons v. Ogden,51 Chief Justice Marshall rejected the narrow “trading” definition and maintained that it was “something more—intercourse.” Commerce, as intercourse, was defined in Gibbons not merely as an exchange of goods but also as a means for “advancement of society, labor, transportation, intelligence, care, and various mediums of exchange [emphasis added]. . . .” That education is the foundation of commerce is not a new idea. The importance of literacy as a necessity, and indeed a right, of every human being began its ascendancy with the great innovation of movable type for printing by Gutenberg. Later, according to Condorcet writing in 1793, “knowledge became the subject of a brisk and universal trade.” 52 Condorcet attributed the rapid advancement of scientific discoveries to this “universal trade,”53 citing the prodigious expansion of scientific knowledge by Bacon, Boyle, Newton, Halley, Huygens, Mercator, Kepler, Franklin, and others who fueled the advances in architecture, mathematics, medicine, astronomy, chemistry, and physics. Thus, the rationale required to support a constitutional assertion of education and knowledge as an aspect of commerce is neither new nor difficult to maintain. As a mere limitation on states to prevent interference with interstate commerce, such a definition has little practical effect on education, but when read in its larger context in relation to the “necessary and proper clause,”54 then Congress may act to improve commerce in an affirmative way rather than merely act to prevent state impediments. This, coupled with
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the fact that commerce regulation is not limited to interstate but may also, under certain conditions, include intrastate activities, brings public education within the purview of the clause.55 In this broad context, education could conceivably be brought within the scope of commerce in that the movement of an intelligent citizenry among the states is vital to the growth and prosperity of the nation. With this definition, the courts are presented with the difficult dilemma of weighing the state powers under the Tenth Amendment against the apparent boundless scope of “commerce.” Few decisions have been rendered in favor of state prerogative. In expounding the philosophy of the “political process,” in which each state has representation in the Congress and this representation will protect state interests, the Supreme Court largely exhibits a hands-off attitude toward the expansion of the federal role through the Commerce Clause.56 By 1942, Congress’s economic regulatory power was viewed by the Supreme Court as being virtually unlimited. Later, in 1946, the Court said that the commerce power is “as broad as the economic needs of the nation.”57 At that time the national prerogative, through the Commerce Clause, attained its broadest scope. This expansive view was changed, if not reversed, in National League of Cities v. Usery, handed down by the Supreme Court in 1976. Under litigation were the 1974 amendments to the Fair Labor Standards Act, which extended wage and hour standards to almost all public employment, including local school districts. In this case, the Court, although admitting that the amendments were within the scope of the Commerce Clause, nevertheless held that the Tenth Amendment was violated. The decision enunciated a more restricted view of the Commerce Clause and interpreted the Tenth Amendment as an affirmative limitation upon the power of Congress to regulate the activities of state and local governments. 58 Justice Rehnquist, writing for the majority, maintained that the state’s power to determine wages of its own employees is an “undoubted attribute of state sovereignty” and that the functions performed by the affected state employees were “essential to the separate and independent existence” of the state.59
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Usery, however, was reversed by the Supreme Court on February 19, 1985, in Garcia v. San Antonio Metropolitan Transit Authority.60 In this 5–4 decision, Justice Blackmun, writing for the majority, said that judicial restraint in assuring state sovereignty is unnecessary in our federal system. Blackmun was of the opinion that the balance in the federal system is sufficiently ensured by the political processes, and constant intervention by the courts is unnecessary. Therefore, in Garcia, Blackmun was willing to rely on the legislative and executive branches of the central government to define the limits of federalism. It was Blackmun’s contention that any commerce clause limitations on the powers of the central government could not derive from the judiciary, but rather must come from self-imposed restraints that the legislative and executive branches would place on themselves. Blackmun therefore entrusted the Congress and the president in their respective powers to prescribe the limits of the Commerce Clause. The Supreme Court took another turn at circumscribing Congress’s powers in 1995 in United States v. Lopez,61 in which the power of Congress to create gun-free school zones came into question. In this case a man was arrested and convicted of possessing a firearm in a gun-free zone, as established by Congress in the Gun-Free School Zones Act in 1990. He challenged the constitutionality of the act, claiming Congress had exceeded its authority. The congressional act was defended by asserting that commerce clause powers gave Congress the authority to make such laws regulating commerce. The Supreme Court held the law unconstitutional, finding that Congress had exceeded its powers because it could not be reasonably maintained that possession of a gun in a local school zone was an economic activity affecting interstate commerce. The Court quoted Chief Justice Marshall’s 1819 decision in McCulloch v. Maryland 62 explaining the uncertainty of the extent of Congress’s powers. Marshall said: The [federal] government is acknowledged by all to be one of enumerated powers. The principle that it can exercise only the powers granted to it . . . is now universally admitted. But the question respecting the extent of the powers actually granted is perpetually arising, and will probably continue to arise, as long as our system shall exist.
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As the cases of Usery, Garcia, and Lopez indicate, the precise balance inherent in the commerce clause has not been clearly and finally decided. The Supreme Court in Lopez attempted to define those boundaries.
Congress’s Gun-Free School Zones Act Violates the Commerce Clause
United States v. Lopez Supreme Court of the United States, 1995. 514 U.S. 549, 115 S. Ct. 1624.
Chief Justice REHNQUIST delivered the opinion of the Court. In the Gun-Free School Zones Act of 1990, Congress made it a federal offense “for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone.” 18 U.S.C. § 922”(q)(1) (A) (1988 ed., Supp. V). The Act neither regulates a commercial activity nor contains a requirement that the possession be connected in any way to interstate commerce. We hold that the Act exceeds the authority of Congress “[t]o regulate Commerce . . . among the several States. . . .” U.S. Const., Art. I, § 8, cl. 3. On March 10, 1992, respondent, who was then a 12th-grade student, arrived at Edison High School in San Antonio, Texas, carrying a concealed .38 caliber handgun and five bullets. Acting upon an anonymous tip, school authorities confronted respondent, who admitted that he was carrying the weapon. He was arrested and charged under Texas law with firearm possession on school premises. The next day, the state charges were dismissed after federal agents charged respondent by complaint with violating the Gun-Free School Zones Act of 1990. . . . A federal grand jury indicted respondent on one count of knowing possession of a firearm at a school zone, in violation of § 922(q). Respondent moved to dismiss his federal indictment on
the ground that § 922(q) “is unconstitutional as it is beyond the power of Congress to legislate control over our public schools.” The District Court denied the motion, concluding that § 922(q) “is a constitutional exercise of Congress’ well-defined power to regulate activities in and affecting commerce, and the ‘business’ of elementary, middle and high schools . . . affects interstate commerce.” Respondent waived his right to a jury trial. The District Court conducted a bench trial, found him guilty of violating § 922(q), and sentenced him to six months’ imprisonment and two years’ supervised release. On appeal, respondent challenged his conviction based on his claim that § 922(q) exceeded Congress’ power to legislate under the Commerce Clause. The Court of Appeals for the Fifth Circuit agreed and reversed respondent’s conviction. We start with first principles. The Constitution creates a Federal Government of enumerated powers. See U.S. Const., Art. I, § 8. As James Madison wrote, “[t]he powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” The Federalist, No. 45, pp. 292–293 (C. Rossiter ed. 1961). The Constitution delegates to Congress the power “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” U.S. Const., Art. I, § 8, cl. 3. The Court, through Chief Justice Marshall, first defined the nature of Congress’ commerce power in Gibbons v. Ogden, 9 Wheat. 1, 189–190, 6 L.Ed. 23 (1824): Commerce, undoubtedly, is traffic, but it is something more: it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse.
The commerce power “is the power to regulate; that is, to prescribe the rule by which commerce is to be governed. . . .” . . . [W]e have identified three broad categories of activity that Congress may regulate under its commerce power. . . . First, Congress may regulate the use of the channels of interstate commerce. . . . “[T]he authority of Congress to keep the channels of interstate commerce
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Structural Provisions in the Constitution
free from immoral and injurious uses has been frequently sustained, and is no longer open to question.” . . . . . . Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. . . . Finally, Congress’ commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e. those activities that substantially affect interstate commerce. . . . Within this final category, admittedly, our case law has not been clear whether an activity must “affect” or “substantially affect” interstate commerce in order to be within Congress’ power to regulate it under the Commerce Clause. . . . . . . We conclude, consistent with the great weight of our case law, that the proper test requires an analysis of whether the regulated activity “substantially affects” interstate commerce. We now turn to consider the power of Congress, in the light of this framework, to enact § 922(q). The first two categories of authority may be quickly disposed of: § 922(q) is not a regulation of the use of the channels of interstate commerce, nor is it an attempt to prohibit the interstate transportation of a commodity through the channels of commerce; nor can § 922(q) be justified as a regulation by which Congress has sought to protect an instrumentality of interstate commerce or a thing in interstate commerce. Thus, if § 922(q) is to be sustained, it must be under the third category as a regulation of an activity that substantially affects interstate commerce. First, we have upheld a wide variety of congressional Acts regulating intrastate economic activity where we have concluded that the activity substantially affected interstate commerce. . . . Section 922(q) is a criminal statute that by its terms has nothing to do with “commerce” or any sort of economic enterprise, however broadly one might define those terms. Section 922(q) is not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the interstate activity were regulated. It cannot, therefore, be sustained under our cases upholding regulations of activities that arise out of or are connected with a commercial
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transaction, which viewed in the aggregate, substantially affects interstate commerce. Second, § 922(q) contains no jurisdictional element which would ensure, through case-bycase inquiry, that the firearm possession in question affects interstate commerce. . . . The Government’s essential contention, in fine, is that we may determine here that § 922(q) is valid because possession of a firearm in a local school zone does indeed substantially affect interstate commerce. . . . The Government argues that possession of a firearm in a school zone may result in violent crime and that violent crime can be expected to affect the functioning of the national economy in two ways. First, the costs of violent crime are substantial, and, through the mechanism of insurance, those costs are spread throughout the population. . . . Second, violent crime reduces the willingness of individuals to travel to areas within the country that are perceived to be unsafe. The Government also argues that the presence of guns in schools poses a substantial threat to the educational process by threatening the learning environment. A handicapped educational process, in turn, will result in a less productive citizenry. That, in turn, would have an adverse effect on the Nation’s economic well-being. As a result, the Government argues that Congress could rationally have concluded that § 922(q) substantially affects interstate commerce. We pause to consider the implications of the Government’s arguments. The Government admits, under its “costs of crime” reasoning, that Congress could regulate not only all violent crime, but all activities that might lead to violent crime, regardless of how tenuously they relate to interstate commerce. . . . Similarly, under the Government’s “national productivity” reasoning, Congress could regulate any activity that it found was related to the economic productivity of individual citizens: family law (including marriage, divorce, and child custody), for example. Under the theories that the Government presents in support of § 922(q), it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign. Thus, if we were to accept the Government’s arguments, we
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are hard-pressed to posit any activity by an individual that Congress is without power to regulate. . . . . . . [I]f Congress can, pursuant to its Commerce Clause power, regulate activities that adversely affect the learning environment, then, a fortiori, it also can regulate the educational process directly. Congress could determine that a school’s curriculum has a “significant” effect on the extent of classroom learning. As a result, Congress could mandate a federal curriculum for local elementary and secondary schools because what is taught in local schools has a significant “effect on classroom learning,” . . . and that, in turn, has a substantial effect on interstate commerce. These are not precise formulations, and in the nature of things they cannot be. But we think they point the way to a correct decision of this case. The possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce. Respondent was a local student at a local school; there is no indication that he had recently moved in interstate commerce, and there is no requirement that his possession of the firearm have any concrete tie to interstate commerce. To uphold the Government’s contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. The broad language in these opinions has suggested the possibility of additional expansion, but we decline here to proceed any further. To do so would require us to conclude that the Constitution’s enumeration of powers does not presuppose something not enumerated, . . . and that there never will be a distinction between what is truly national and what is truly local. . . . This we are unwilling to do. For the foregoing reasons the judgment of the Court of Appeals is Affirmed.
In 1788, before the Tenth Amendment was ratified, Madison described the federal government’s relationship to the states in the new Constitution this way: The powers delegated by the proposed Constitution to the Federal Government are few and defined. Those which are to remain in the State Governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement, and prosperity of the State.
(The Federalist, No. 45, January 26, 1788.)
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Supremacy Clause
Occasionally in the field of education, a state statute will come in direct conflict with a federal statute. If this occurs, the state law must give way and accede primacy to the federal law. This, of course, assumes that the federal law in question is enacted within the scope of appropriate constitutional authority. In anticipation of such occurrences, the founding fathers in 1787 included in the new Constitution a provision that became known as the “Supremacy Clause,” whereby the central government of delegated powers could have a preeminent counterbalance against the strong sovereign powers of the states. Article I, Section 8 of the Constitution grants Congress the broad power to enact legislation in several delegated areas of national concern. This power is buttressed by the Supremacy Clause, which elevates the authority of congressional legislation above that of state legislation in areas in which Congress possesses constitutionally delegated authority. This preeminence of congressional power, however, must conform to the overall governance structure of the United States as contemplated by the Constitution. Article VI, Clause 2 of the U.S. Constitution contains the “Supremacy Clause.” This clause states: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; . . . , shall be the supreme Law of the Land; and the Judges in every State shall be bound
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Supremacy Clause
thereby; any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” The rationale for the supremacy of the laws of the central government is to be found in Madison’s explanation in the Federalist Papers, Number 33, wherein he points out that “the laws of the Union are to be the supreme law of the land.”63 Madison observes that “[i]f a number of political societies enter into a larger political society, . . . the laws of the latter must necessarily be supreme over those societies and the individuals of whom they are composed. It would otherwise be a mere treaty . . . , and not a government. . . .” 64 Yet Madison goes on to note in a point that is cited by the U.S. Supreme Court in Alden in 1999, that it does not, however, follow “from this doctrine that acts of the larger society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land.”65 The smaller societies in the case of the American system are, of course, the states that retain residual powers of their sovereignty. The adoption of the Supremacy Clause provoked what was perhaps the most contentious of all the debates of the delegates to the Constitutional Convention at Philadelphia in 1787. The basis for the clause is found in James Madison’s proposal in the Virginia Plan that gave the national legislature “dominance” over state laws that conflicted with laws or articles of the Union.66 Yet the issue was never clearly decided in the minds of the delegates at the Constitutional Convention. In the Federalist Papers, Number 39, Madison, after analyzing aspects of the powers of the central government as bestowed by the new Constitution, was inconclusive as to whether the new government was either federal, national, or something in between. He summarized that “[t]he proposed Constitution, therefore, even when tested by the rules laid down by its antagonists, is, in strictness, neither a national nor a federal Constitution, but a composition of both.”67 According to Rakove, it was Madison’s favored image that “the new federal system was to occupy a middle ground between a confederation of sovereign states and a consolidated nation.”68 Because the new system was not well defined and never really understood or agreed upon by the delegates at Philadelphia, great reliance was placed on the
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federal judiciary. The judiciary was to interpret the Supremacy Clause in actual cases and controversies and thereby develop an accepted balance between states and the central government. The Supremacy Clause attempted implicitly to incorporate a principle of judicial review to create the appropriate equilibrium that would establish limits on state sovereignty while advancing the necessary cohesion of the central government.69 The Supremacy Clause, as interpreted by the Supreme Court, was, therefore, to provide the legal nexus on which the American brand of federalism would ultimately be determined. Thus, under the Supremacy Clause, the federal courts must decide whether the state law in question is compatible with the policy as enunciated by the federal statute. If the state law is in conflict with the federal statute and policy, the state law must yield. As anticipated by Madison, the balance between the powers of the “union” government and the residual powers of the state would be more fully defined by the judiciary as it interpreted cases and controversies over the succeeding years and decades. The balance has tended to reflect the political philosophy of the members of the U.S. Supreme Court and as a result the lines drawn do not remain static, tending to shift with the political climate of the times. Nowhere is the expression “the living constitution” more readily apparent than in the Supreme Court’s interpretations as to the evolving balance of power between the central and state governments. Today, the U.S. Supreme Court decisions have taken on a gloss and tone of decentralization as opposed to the centrist view of a few decades ago. The Supreme Court in 1999, in Alden v. Maine, devotes considerable attention to the explanation of what the U.S. Constitution intended for the design of our government as viewed through the lens of today’s more conservative Court. Interestingly, the Court in Alden speaks of a “National Government” and “States as sovereign entities” operating in a “Federal system.” Thus, to this Court the system seems to be federal rather than national even though the word National is used for the central government. Yet, it would appear, as measured by Madison, that the system is probably neither national nor federal, “neither wholly federal nor wholly national.”70
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The view of the current U.S. Supreme Court is explicated by Justice Kennedy writing for the majority in Alden: The federal system established by our Constitution preserves the sovereign status of the States in two ways. First, it reserves to them a substantial portion of the Nation’s primary sovereignty, together with the dignity and essential attributes inhering in that status. The States “form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority than the general authority is subject to them, within its own sphere.” (The Federalist, No. 39). Second, even as to matters within the competence of the National Government, the constitutional design secures the founding generation’s rejection of “the concept of a central government that would act upon and through the States” in favor of “a system in which the State and Federal Governments would exercise concurrent authority over the people—who were, in Hamilton’s words, ‘the only proper objects of government.’” (quoting The Federalist, No. 15).
The States thus retain “a residuary and inviolable sovereignty.” (The Federalist, No. 39). They are not relegated to the role of mere provinces or political corporations, but retain the dignity, though not the full authority, of sovereignty.71 Thus, according to Justice Kennedy, “the Supremacy Clause enshrines as ‘the supreme law of the land’ only those federal acts that accord with the constitutional design”72; therefore, the Supremacy Clause sits as the test and raises the eternal question of the constitutional design as to whether a law enacted by the Congress is “a valid exercise of national power.”73
State Statute Impeding Intent of Federal Statute Violates Supremacy Clause
Shepheard v. Godwin United States District Court of Eastern Virginia, 1968. 280 F. Supp. 869.
ALBERT V. BRYAN, Circuit Judge. . . . “Impacted” school areas are those whose school populations have been substantially
enlarged by the attendance of Federal employees’ children, but at the same time are losing school tax revenues because of the United States government’s immunity from land taxes, both factors arising from increased Federal activities in the area. These conditions prompted Congress to provide financial aid for operation of the local educational facilities, P.L. 874. In applying a State formula for State assistance to local school districts, Virginia has deducted from the share otherwise allocable to the district a sum equal to a substantial percentage of any Federal “impact” funds receivable by the district. Residents, real estate owners, and taxpayers of the City of Norfolk, later joined by those of the County of Fairfax, Virginia, in behalf of themselves and others similarly situated, here attack this deduction . . . as violative of the purpose and intent of the act of Congress and as transgressing the Fourteenth Amendment. We uphold their contention. . . . The theory of the deduction in toto was that the Federal moneys were substituting for the taxes lost to the district by reason of the immunity of the Government property, and hence should be charged to the locality, just as the taxes would have been, in fixing the State supplementary aid. . . . The grievance of the plaintiffs is obvious: any deduction whatsoever of the Federal supplement in apportioning State aid, pro tanto burdens them as taxpayers, for they and the other property owners in Norfolk and Fairfax have to make up the unindemnified portion of the impact costs. They contend that any deduction is prohibited by the purpose and plan of the Federal act. The rejoinder of the defendant officials is, first, that the impact pupils are counted by the State in computing the minimum program cost in the district, and in accounting with the district for the State’s supplementary aid it is not inequitable to insist upon a deduction of a commensurate amount of the impact moneys. At first appealing, this argument ignores the fact that the Federal children are to a large extent paying their own way so far as the State is concerned. Quite soundly, the Congressional Committee on Education and Labor, in recommending passage of P.L. 874, observed that the influx of Federal employees, and the withdrawal of real estate from taxes, did not diminish the tax sources of the State or otherwise burden the State. . . .
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Supremacy Clause
Our conclusion is that the State formula wrenches from the impacted localities the very benefaction the act was intended to bestow. The State plan must fall as violative of the supremacy clause of the Constitution. Our decision rests entirely on the terms, pattern and policy of the act. The act makes these propositions clear: (1) the Federal funds are exclusively for supplementation of the local sources of revenues for school purposes; and (2) the act was not intended to lessen the efforts of the State. Those postulates are manifested in the statute by these provisions, especially: that the Federal contribution be paid directly to the local school agency on reports of the local agency, and that the contribution be computed by reference to the expenditures “made from revenues derived from local sources” in comparable school districts. But the State formula at once sets these precepts at naught. It uses the impact funds to account in part for fulfillment of the State’s pledge of supplementary aid to the community; and the State moneys thus saved are available for State retention or such use as Virginia determines. Without the inclusion of the Federal sums, the State’s annual payments towards supplementary aid would be increased, it is estimated, by more than $10,000,000. This commandeering of credit for the Federal moneys severely injures both the community and the pupil. First and foremost, it does not relieve the local taxpayers to the extent Congress contemplated. Next, without the exclusive application of the funds to the areas where the need arose and remains, the result may be to lower the standard of education provided in an impacted district. Instead of maintaining the previous standards for the additional pupils, the impact money when thinned by the State would obviously be inadequate to continue that level for the increased school attendance, a result certainly thwarting the aim of the Federal law. The construction and the implications we put upon the act find confirmation in its legislative history. . . . The exposition underscores the Congressional mandate that the impact payments are for local use and are not to be applied to compensate the State in any respect. Since its explanation in 1950 when P.L. 874 was passed that no compensation was intended for the State, Congress has reiterated this intention. In this
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repetition it definitely disapproves the accounting use Virginia’s formula makes of the impact moneys. The House of Representatives Committee Report No. 1814, dated August 5, 1966, in proposing an amendment to P.L. 874, stated: Fifteen States offset the amount of Public Law 874 funds received by their school districts by reducing part of their State aid to those districts. This is in direct contravention to congressional intent. Impact aid funds are intended to compensate districts for loss of tax revenues due to Federal connection, not to substitute for State funds the districts would otherwise receive.
The committee report and the amendment are cited merely as evidence of Congressional intendment. The amendment provides only an administrative remedy of the Government and does not deprive the plaintiffs of standing to prevent future State infringement of their Constitutional right to the benefits of the aid proposed by Congress. Necessarily, then, the upshot is that the defendants must be enjoined from hereafter in any way denying to the impacted area the exclusive use and enjoyment of the impact funds. . . . An order implementing this opinion is filed herewith. . . .
Case Notes 1. Supremacy of the central government must be considered by the courts on a case-by-case basis. The Supreme Court has observed that both the federal and state laws that are said to be in conflict must be carefully examined to determine the exact nature of the inconsistency before an application of the Supremacy Clause is warranted. In that regard, the Court has said: . . . from the very nature of the problem there cannot be any rigid formula or rule which can be used as a universal pattern to determine the meaning and purpose of every act of Congress. This Court, in considering the validity of state laws in light of . . . federal laws that touch the same subject, has made use of the following expressions: conflicting; contrary to; occupying the field; repugnance; difference; irreconcilability; inconsistency; violation; curtailment; and interference. But none of these expressions provides an infallible constitutional test or an exclusive constitutional yardstick. In the final analysis, there can be no one crystal clear distinctly marked formula.
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Supremacy of the central government, therefore, generally hinges on whether state law stands as an obstacle to the accomplishment and implementation of the objectives of Congress in effectuating a national purpose. Hines v. Davidowitz, 312 U.S. 52, 61 S. Ct. 399 (1941). 2. A state statute may be held invalid under the Supremacy Clause even if Congress does not expressly preempt state law for a given purpose. The U.S. Supreme Court has held that a state law violates the Supremacy Clause if it “stands as an obstacle to the accomplishment of the full purposes and objectives of Congress.” For example, in a case where a federal statute compensated local county governments for loss of tax revenue resulting from the tax-immune status of federal lands, such as wilderness areas and natural parks located within county boundaries, and for the costs of providing services to these areas, and a state statute contrarily provided that the federal monies should be distributed on a state prescribed formula, the U.S. Supreme Court held that the state law violated the Supremacy Clause. The Court said that the federal statutory intent was to allow full local discretion in the deployment of the federal funds and that the state statute would not be permitted to frustrate the federal intent, as expressed by Congress. Lawrence County v. Lead-Deadwood School District No. 40-1, 469 U.S. 256, 105 S. Ct. 695 (1985). 3. In the event of conflict as to definition of the requirements of a particular federally funded program, the federal definition will prevail. Where a controversy arose between the state of Pennsylvania and the U.S. Secretary of Education regarding what constituted vocational education as prescribed by the Perkins Act, a U.S. Court of Appeals ruled that such definitional authority is vested in the Secretary. The primary issue in this case was whether state monies spent for state defined vocational education could be counted as fiscal effort of the state as required to be maintained from one year to the next. The Secretary had determined that certain expenditures that the state included in its determination of fiscal effort for vocational education could not be permitted as not falling within the scope of the Secretary’s definition of vocational education. State
of Pennsylvania v. Riley, 84 F. 3d 125 (3rd Cir. 1996). 4. In helping clarify the supremacy issue, the Supreme Court has further explained that an implied conflict in a federal versus a state law may be as constitutionally meaningful as one that is expressed. For when the question is whether a Federal act overrides a state law, the entire scheme of the statute must, of course, be considered, and that which needs must be implied is of no less force than that which is expressed. If the purpose of the act cannot otherwise be accomplished—if its operation within its chosen field can be frustrated and its provisions refused their natural effect—the state law must yield to the regulation of Congress within the sphere of its delegated power. Savage v. Jones, 225 U.S. 501, 32 S. Ct. 715 (1912)
5. Though not involving the question of “supremacy,” the Federal Impact Aid Program was the basis of a U.S. Supreme Court decision in 2007, wherein a local school district in New Mexico challenged the statistical calculation used by the U.S. Secretary of Education to determine the school funding equalization level of each state. The Secretary calculated state and local equalization funding among school districts by weighting the number of pupils in each school district. The local school district of Zuni, New Mexico, challenged the method, arguing that such weighting was not intended by the federal Impact Aid Act (108 Stat. 3749, as amended, 20 U.S.C. 7701 et seq.). The Supreme Court ruled for the U.S. Secretary indicating that although there was ambiguity in the literal interpretation of the statute, that a “gap” left by Congress could be validly filled in by the Secretary and her interpretation would be upheld by the Court. Zuni Public School District No. 89 v. Department of Education, U.S. 2007, 127 S. Ct. 1534 (2007).
OBLIGATION OF CONTRACTS The Obligation of Contracts Clause, Article I, Section 10, does double duty as both a structural provision and an individual rights provision in the Constitution. The clause states in part: “No state shall enter into any Treaty, Alliance or Confederation; . . . coin Money; . . . pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, . . . ”
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Supremacy Clause
Structurally, the clause is essential to federalism in that it prohibits states from acting as separate nations by making treaties or alliances with other countries, forming confederations, or coining money. These were, of course, the rules that the southern states broke when they seceded from the Union, causing the Civil War.74 However, the part important to public schools is the obligation of contracts provision. The state, or the public school as an agency of the state, cannot pass a law or regulation, or take an action that impairs a contractual obligation with an individual or a corporation. School districts have many contractual relations with teachers and other employees, vendors, and agencies and organizations, public and private. The most famous case to which this clause was ever applied was Dartmouth College v. Woodward in 1819, where Justice Marshall defined the meaning of “obligation of contract” as “the law which binds the parties to perform their agreement.”75 Later, the Supreme Court defined “impair,” saying “the obligations of a contract . . . are impaired by a law which renders them invalid, or releases or extinguishes them. . . .”76 In accordance with these constitutional restraints, the Supreme Court held that the state legislature’s 1933 repeal of a 1927 Indiana law granting tenure rights to teachers violated the obligation of contracts provision.77 The application of this provision is, however, contingent upon whether an actual contract was contemplated by the state. For example, where an annuity benefit for teachers was reduced, the Supreme Court held that the state had not intended to create a contract, but merely a benefit that could be modified.78 Thus, the Obligation of Contracts Clause may be important to the employment relationship between the teacher and the school districts and between various private entities and school districts. Further discussion of this issue will occur later in this text in Chapter 15, Certification, Contracts, and Tenure.
ELEVENTH AMENDMENT IMMUNITY One of the most important changes in constitutional law in decades is the series of recent U.S. Supreme Court precedents that create a “new balance” of federalism. In reversing a trend of several decades that vested greater authority in
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the Congress to enact laws and to impose liability on state governments and their state entities for noncompliance with those laws, the Court has now begun to test federal laws from a new perspective that places greater importance on state sovereignty. The principal constitutional provision that is being elevated and reinterpreted by the Court is the Eleventh Amendment. The new balance directly affects several federal laws that impact state education policy. These results are having a marked effect on state education policy. As we have seen recently, the U.S. Supreme Court struck down Congress’s attempts to hold states liable under the Religious Freedom Restoration Act (RFRA),79 the Fair Labor Standards Act (FLSA),80 the Patent Remedy Act (PRA),81 the Age Discrimination in Employment Act (ADEA),82 and the Americans with Disabilities Act (ADA).83
ELEVENTH AMENDMENT The Eleventh Amendment provides that the federal judiciary shall have no jurisdiction over suits brought against one of the United States, i.e., a state—by citizens of another state, or by citizens or subjects of any foreign state. According to the Supreme Court, this language bars federal jurisdiction over any suit commenced against one of the United States even by citizens of that same state. —U.S. Constitution, Amendment XI
The question of whether the federal courts and Congress can impose liability for damages on state governments is integral to the balance of our system of government and, indeed, has great importance to the conduct of the state public school systems. In 1999, the U.S. Supreme Court said that “the States’ immunity from suit is a fundamental aspect of the sovereignty which States enjoyed before the ratification of the Constitution.”84 The Eleventh Amendment to the U.S. Constitution bars a private party from recovery of funds from a state treasury for a liability judgment against the state. It does not bar such judgments against public officials or local entities not considered to be state entities. To date, the prevailing view is that local school districts are not state entities for purposes of the
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Eleventh Amendment. The Eleventh Amendment provides that “the Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another state, or by Citizens or Subjects of any Foreign State.” The Eleventh Amendment is therefore an explicit limitation on the power of the judiciary to hold states liable, and is, thereby, a reinforcement of the sovereign power of the states.85 The idea that states as sovereign entities should be immune from liability was supported by both Madison and Hamilton. Madison said, “I do not conceive that any controversy can ever be decided, in these courts, between an American state and a foreign state, without consent of the parties.”86 Hamilton observed in the Federalist Papers, Number 81, that “[i]t is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its [the state’s] consent.” Such invasion on state legislative prerogative, it was thought, would hinder the operation of states and unduly restrain the exercise of their sovereignty. The Supreme Court has held that the amendment, by implication, also bars suits against the state by any and all citizens, including the state’s own citizenry. 87 The Supreme Court has thus stated the general rule of law as follows: “[A] suit by private parties seeking to impose a liability which must be paid from public funds in the state treasury is barred by the Eleventh Amendment.”88 Because of the delicate balance between central versus state powers, sovereign immunity was of utmost importance to the states in their decision to ratify the Constitution. This issue strikes at the core of the concept of a union of states. As noted earlier in the discussion of the Supremacy Clause, the U.S. Supreme Court, of late, has adopted the philosophy that holds that “a more perfect union” is devised of separate sovereign states that “clearly preceded the Union in point of time. . . .”89 This is the current view of the Supreme Court as expounded in Kimel (2000), Alden (1999), Florida Prepaid (1999), Seminole Tribe (1996), and Garrett (2001). 90 According to the Supreme Court, 91 the Eleventh Amendment confirms a presupposition that may be expressed in two parts: “first, that each State is a sovereign entity in our federal
system; ” 92 and “second, that ‘it is inherent in the nature of sovereignty not to be amenable to suit of an individual without its consent.’ ”93 Thus, the Eleventh Amendment is founded on the idea, indeed, “rooted in a recognition that the States, although a union, maintain certain attributes of sovereignty, including sovereign immunity.”94 Immunity of the state, as derived from the concept of sovereignty, antedates the U.S. Constitution, and the Eleventh Amendment is, therefore, merely a restatement, a renunciation, an assertion of positive law regarding the fact of sovereignty. The immunity of states is, however, not without limits. The Supreme Court, in Alden, pointed out that “the constitutional privilege of a state to assert its sovereign immunity . . . does not confer upon the State a concomitant right to disregard either the Constitution or valid federal law. The states and their agencies are bound by obligations imposed by the Constitution and by federal statutes that comport with the constitutional design.”95 Thus, even though state sovereignty predated the formation of the Nation, where conflicts arise and a state violates a substantive aspect of the Constitution, then state sovereign immunity may be overridden, and liability may be imposed on the state by the state itself, by Congress, or by the federal courts. There are basically two ways that state sovereign immunity can be abrogated. The first is “if a State waives its immunity and consents to suit in Federal court.”96 Concerning this waiver, the Supreme Court has held that “a State will be deemed to have waived its immunity only where stated by the most express language or by such overwhelming implication from the text as to leave no room for any other reasonable construction.”97 The second is for Congress to unilaterally abrogate state immunity by its own legislative act. For Congress to abrogate state sovereign immunity, two questions must be answered, and both must be answered in the affirmative. The first is whether Congress has “unequivocally express[ed] its intent to abrogate the immunity,”98 and the second is whether Congress has acted “pursuant to a valid exercise of power.”99 Where Congress abrogates, there must be unambiguous intent to abolish the immunity of the states, and such must be set forth in “a clear legislative statement.”100 A general authorization
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Rights Provisions in the Constitution
for a suit in federal court is insufficient to abrogate immunity.101 The Supreme Court in Seminole Tribe held that Congress cannot abrogate state sovereignty based on its constitutional powers under Article I alone, the constitutional provision from which Congress receives its delegated powers.102 In the final analysis, therefore, any federal statute that attempts to abrogate state sovereign immunity must find its justification in the substance and enforcement of the Fourteenth Amendment. Congress must “identify conduct transgressing the Fourteenth Amendment’s substance provisions in Section 1, and enforce the substance under Section 5. Congress must tailor its legislative scheme to remedying or preventing undesirable conduct.” 103 The U.S. Supreme Court held in Kimel v. Florida Board of Regents104 that Congress could not invoke Section 5 of the Fourteenth Amendment to impose liability on states in enforcing the Age Discrimination in Employment Act of 1967 (ADEA). In Kimel, Justice O’Connor, writing for the majority, concluded that “ADEA does not contain a clear statement of Congress’ intent to abrogate the States’ immunity” and that Congress had exceeded its authority in justifying its actions under Section 5 of the Fourteenth Amendment; the Act was, therefore, unconstitutional. In Garrett, Justice Rehnquist rejected the defendant’s assertion that Title I of the Americans for Disabilities Act was enacted as a result of such irrational state discrimination against persons with disabilities as to warrant the invoking of damages against a state. Thus, the Supreme Court has demonstrated that it will be very restrictive in its interpretations of congressional acts that attempt to pierce state sovereign immunity, even if Congress attaches its rationale to the Fourteenth Amendment.105 Consent by a state cannot be implied or be mere constructive acquiescence; rather, it must be an express denial of its own immunity. The fact that a state participates in a federal program does not implicitly waive the state’s immunity from suit.106 Too, it makes no difference whether the state had abrogated its common law sovereign immunity;107 the waiving of common law immunity does not affect Eleventh Amendment immunity. Finally, and importantly, the reader should be reminded that these Eleventh Amendment
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precedents apply only to “state” liability and not to “individual” liability. It should therefore be noted that Eleventh Amendment immunity protection does not extend to suits against public officials as individuals; 108 the fact that the state is immune from damages claimed by an aggrieved party does not necessarily mean that an individual will avoid liability. Also, the foregoing discussion does not address the potential liability of local school districts as governmental entities apart from state government. Liability of local school districts is discussed in Chapter 13. The predominant view of the courts is that local school districts may be held liable and are not provided immunity by the Eleventh Amendment.
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Rights Provisions in the Constitution
The rights provisions in the Constitution most pertinent to education are found in the Bill of Rights and the Fourteenth Amendment. Education is greatly influenced by the federal judiciary’s interpretations of these rights provisions as they affect students, parents, and teachers in relationship to the public school as a state agency. The judicial power found in Article III of the U.S. Constitution is the power of a federal court to “decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision.”109 As the federal courts have fulfilled this responsibility to adjudicate and to “carry into effect” their judgments, there has evolved an imposing body of federal law that circumscribes and restrains public school powers and prerogatives as agencies of state government. Whether the constitutional restraints emanate from controversies involving students, parents, teachers, or other persons dealing public schools, the judgments made by the federal courts usually find their legal rationale and justifications in the Bill of Rights and the Fourteenth Amendment. The first 10 amendments to the Constitution form the Bill of Rights. These amendments were submitted to the state legislatures on September 25, 1789, and the requisite number of states ratified them by December 15, 1791.110 Jefferson described a bill of rights as a “legal check” by the judiciary on the excesses of government. 111 Jefferson, while in Paris as
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ambassador to France, pointed out the need for a bill of rights. He said, “Let me add that a bill of rights is what the people are entitled to against every government on earth, general or particular, and what no government should refuse, or rest on inference.”112 Jefferson’s opinion reflected that of popular opinion of the people and the states who ultimately required the Bill of Rights before they would accept the new Constitution.113 Madison, who drafted the Bill of Rights and presented it to the U.S. House of Representatives on June 8, 1789, argued before the House that all power of government is subject to abuse and a specific statement declaring “the great rights of mankind” should be set forth as limitations on that power.114 The Bill of Rights, therefore, forms the basis of the liberties and freedoms that every individual has as an inherent or natural right against government. Because public schools are governmental agencies, they are subject in their operation to the limitations of individual liberties and freedoms as secured in the Bill of Rights.
ORIGINALLY LUKEWARM, MADISON BECAME CONVINCED OF THE NEED FOR A BILL OF RIGHTS It is my sincere opinion that the Constitution ought to be revised, and that the first Congress . . . ought to prepare and recommend to the States for ratification the most satisfactory provisions for all essential rights, particularly the rights of Conscience in the fullest latitude, the freedom of the press, trials by jury, and security against general warrants. — James Madison
Thus, under our system of government, state or federal laws that violate or deny individual rights or freedoms may be invalidated by the courts through application of the U.S. Constitution. Many of the restraints that educators refer to as “federal control” emanate from the application of federal constitutional provisions to state statutes, regulations, or actions by agents of the public school system. Virtually all the cases that have held state actions unconstitutional have been based on the First, Fourth, Fifth, and Eighth Amendments of the Bill of Rights (see Box 3.2).
Individual liberties that are given constitutional status in the First Amendment serve as the basis for frequent litigation and, many times, subsequent federal judicial control of educational activity. Personal freedoms found in the First Amendment pertain to religion, speech, association, press, and assembly. Each of these has been brought into play in federal courts as a restraint on objectionable activities by state school systems. These constitutional issues are fully discussed in subsequent chapters of this book, but it is important to note here that it is these legitimate constitutional concerns involving personal freedoms and rights that are primarily responsible for the “federal involvement in education.” Such activity by the federal courts in no way violates the sovereign power of the states to operate the public schools.
BILL OF RIGHTS AND ABSORPTION BY THE FOURTEENTH AMENDMENT The Fourteenth Amendment, in concert with the Bill of Rights, is critical to protecting individual rights and freedoms. Prior to the enactment of the Fourteenth Amendment in 1868, the prohibitions of the Bill of Rights applied only to Congress. The First Amendment states that “Congress shall make no law . . . ,” and the other Amendments making up the Bill of Rights, enacted in 1791, likewise protected the individual against rights denials by Congress, but there was no commensurate constitutional protection for individual rights against state governments. After the Civil War, however, the widespread discrimination against former slaves by states in the South was so pervasive that enactment of the Fourteenth Amendment became necessary. At the time, the Fourteenth Amendment was specifically directed to states. It says in part: “No state shall . . . deny to any person within its jurisdiction the equal protection of the laws.” The “No state shall” provision, however, was not applied to any amendments contained in the Bill of Rights throughout the first half of the twentieth century. It was first applied to the exercise of religion by the U.S. Supreme Court in 1940 in Cantwell v. Connecticut115 when the Court used the amendment as a conduit to apply the Free Exercise Clause of the First Amendment to state actions. Later in 1947, the “No state shall” provision was again applied in Everson v. Board of Education to invalidate state
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Rights Provisions in the Constitution
BOX 3.2
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Rights Provisions in the U.S. Constitution Most Pertinent to Federalism and Education
The first nine amendments in the Bill of Rights and the Fourteenth Amendment are the principal sources of individual rights and liberties. Technically, the Tenth Amendment is not a rights provision; rather, it is a structural provision. First Amendment:
prohibits laws that infringe on the freedom of religion, speech, press, and assembly.
Fourth Amendment:
prohibits unreasonable searches and seizures.
Fifth Amendment:
prohibits deprivation of life, liberty, or property without due process of law.
Eighth Amendment:
prohibits cruel and unusual punishments.
Ninth Amendment:
assures that rights not enumerated are retained by the people.
Fourteenth Amendment:
prohibits laws that deprive a person of life, liberty, or property without due process of law and prohibits laws that would deny any person equal protection of the laws.
legislation under the Establishment Clause of the First Amendment. Therefore, the Fourteenth Amendment makes the prohibitions against government encroachments upon individual liberties and freedoms of the Bill of Rights applicable to the state. Moreover, the Fourteenth Amendment’s Due Process and Equal Protection Clauses directly apply to state legislation protecting the individual rights. This is further discussed later. Therefore, the contour of federalism as it affects public education is very much dependent on judicial interpretations of the various provisions in the Bill of Rights, and the implications thereof, as applied to the states through the Fourteenth Amendment. The first 10 amendments to the Constitution, the Bill of Rights, are the main repository of the liberties and freedoms guaranteed to all individuals. In Dennis v. United States, Justice Frankfurter captured the essence of the Bill of Rights when he wrote: The law is perfectly well settled . . . that the first ten amendments to the Constitution, commonly known as the Bill of Rights, were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors, and which had from time immemorial been subject to certain well-recognized . . . principles . . . of fundamental law.116
The Bill of Rights and the Fourteenth Amendment, as safeguards of individual rights, are the basis for the vast majority of the constitutional litigation in public school law. Students, parents, and teachers have invoked these amendments when asserting claims against states and school districts, forming the body of constitutional law that is so instrumental in defining the federal role in education. The Fourteenth Amendment has had a pervasive and lasting effect on public school policy. This amendment is particularly important because it not only serves directly to provide equal protection against discrimination, but it also assures procedural and substantive due process. In addition, the Fourteenth Amendment provides the conduit through which the First Amendment and other parts of the Bill of Rights are applied to the states. The Bill of Rights originally served only as a restraint on Congress,117 but later the Supreme Court expanded the reach of the various clauses to apply to the states through the Fourteenth Amendment. The Supreme Court first connected the Fourteenth Amendment to the First Amendment in 1925,118 in striking down state encroachments on the freedoms of speech and press. Corwin, in his seminal work on U.S. constitutional law, refers to this vital linkage as the “absorption” of the First Amendment into the Fourteenth Amendment.119 In addition
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to the Cantwell decision regarding freedom of religion,120 subsequent Supreme Court decisions continued the “absorption” of other clauses of the First Amendment, including freedom of the press121 and the right to assemble peaceably.122
schools as the federal courts have defined the intent of these clauses. These matters are treated extensively in the student and teacher rights discussions in later chapters of this book.
FOURTH AMENDMENT FIRST AMENDMENT This amendment is the foremost source of liberties and freedoms found in the Constitution. Levy has said that “[a]lthough the framers of the Bill of Rights did not rank the rights in order of importance, some are more precious than others.”123 Those rights listed in the First Amendment were understood to be the most deserving of protection. The First Amendment states: Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The first clause prohibiting laws respecting an establishment of religion is, according to Levy, “a right that has no superior. . . .”124 This vital clause was followed by the free exercise of religion clause that guaranteed the freedom of conscience and belief, neither of which can be protected if the government is entwined with religion. Chapter 5 of this book deals extensively with prayer and Bible reading in public schools and the use of government funds to support religious schools. The framers of the Constitution knew well that freedom of expression is an absolute necessity of a democratic form of government. Expression is protected by the two clauses of the First Amendment that prohibit abridging the freedoms of speech and the press. Government cannot censor or restrain expression, and though the right is not unlimited, the Supreme Court precedents jealously guard it. In West Virginia State Board of Education v. Barnette, the 1943 school flag salute case, Justice Jackson summarized the essence of the freedom of expression when he said that it is “a commonplace that censorship or suppression of expression presents a clear and present danger of action of a kind the State is empowered to prevent and punish.”125 Therefore, the First Amendment’s protection of speech and press has played a very large part in the operation of public
This amendment protects individual privacy and prohibits the government from conducting “unreasonable” searches and seizures. It applies to government action only, and not to intrusions by individuals or private entities in which government plays no part. Thus, students and teachers in private schools are not protected. The Fourth Amendment states in part: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause. . . .” The key words unreasonable and probable cause ultimately define the protection of the individual. The Supreme Court, in viewing situations involving searches in the special circumstances of the public school, has established the standard of “reasonable suspicion” that permits a search: if, at the inception of the search, it is reasonable to assume something is hidden in the possession of a student that may be harmful to other students or to the good conduct of the school.126 As society has become more concerned about illegal drugs, guns, and bombs, the U.S. Supreme Court has tended to expand the definition of reasonableness. In the key cases of Vernonia School District 47J v. Acton127 (1995) and Board of Education of Independent School District No. 92 of Pottawatomie v. Earls128 (2002), the Supreme Court even permitted “suspicionless” searches of students. The effect of these decisions is to reduce the margin of student privacy while increasing school administrator flexibility in the conduct of searches. These cases and others are presented in greater detail in this book in Chapters 8, 9 and 10 on student rights and Chapter 16 on teacher freedoms.
FIFTH AMENDMENT The protections against unfair criminal trials and double jeopardy are encompassed in this important amendment. One of the parts of this amendment most pertinent to public schools today is the Due Process Clause. The Fifth Amendment states in part, “No person shall be . . . compelled in any
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Rights Provisions in the Constitution
criminal case to be a witness against himself, nor be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use without just compensation.” This amendment may touch the conduct of public schools in various ways. First, the question has arisen as to whether the “incrimination of one’s self,” “self-incrimination,” or “taking the Fifth” provision applies to hearings in the public schools. The answer is that generally it does not. With regard to teachers, the Supreme Court held in Beilan v. Board of Education129 that a teacher could be dismissed for failure to answer questions by the superintendent that were relevant to the interests of the school, even though the questions may pertain to possible criminal activity on the part of the teacher. Similarly, students cannot take the Fifth and refuse to answer questions germane to their conduct at school. Both of these issues are addressed in later chapters. The second aspect of the Fifth Amendment that has affected public schools has to do with racial segregation. In one of the companion cases to the 1954 watershed litigation known principally as Brown v. Board of Education,130 the plaintiffs challenged the segregation of Washington, D.C., schools that were under the control of Congress.131 Because the Washington, D.C., schools were not subject to state control, the “Equal Protection Clause” of the Fourteenth Amendment did not apply to federally conducted functions. Being unable to rely on the Equal Protection Clause of the Fourteenth Amendment that states “no state shall,” the Supreme Court invoked the Due Process Clause of the Fifth Amendment, and attributed to it the same intent and meaning for the D.C. schools as did the Equal Protection Clause for state school systems. Third, the provision of the Fifth Amendment that prohibits the taking of property for public use “without due process of law” is a direct restraint on school districts when they seek to acquire additional real property for new school buildings. The Fifth Amendment permits the school districts to take or purchase property from private entities but only after providing “just compensation.” Thus, the role and the reach of the federal government’s involvement in the public schools may at times have much to do with this amendment. These Fifth Amendment constraints on the operation
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of public schools are presented in more detail in subsequent chapters.
EIGHTH AMENDMENT Herein is the “cruel and unusual punishment” prohibition that prevents government from inflicting penalties of torture upon convicted persons. The amendment reads simply that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Even though this amendment was designed to protect individuals under criminal prosecution, there have been attempts to attach it to the punishment of children in public schools. Notably, the Supreme Court addressed the issue of cruel and unusual punishment of school children in Ingraham v. Wright,132 wherein the Court held that even in the face of excessively severe corporal punishment, the Eighth Amendment does not apply to public schools. This decision has been criticized and distinguished by a few lower courts, as is pointed out in a later chapter of this book.
NINTH AMENDMENT The framers of the Constitution were very much concerned that the central government would gradually assume more power and erode the liberties and freedoms of the people. Moreover, they knew that they could not spell out and specify in the Bill of Rights all of the liberties and freedoms to which the people were entitled. Patrick Henry, a strong Anti-Federalist, observed that there existed the danger by “fair implication” that the central government could do anything or encroach on any rights that were not expressly forbidden to it by the Constitution.133 The Ninth Amendment was thus added in recognition that individual liberties and freedoms were not limited to those specifically enumerated in the other clauses of the Bill of Rights. The Ninth Amendment, as a catchall of freedoms, states, “The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.” As the framers anticipated, the freedoms enumerated in the Bill of Rights were not sufficient to foretell all the contingencies or intrusions on liberties in the future. And the framers were quite right in their fear that political reality could possibly result in the judiciary on occasion
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falling short in its responsibility to recognize and protect those rights that are not specifically enumerated. In fact, it was not until as late as 1965 that the Ninth Amendment was brought forth and dusted off by the Supreme Court to find the “unstated” right of privacy. The case had to do with the protection of the right of married couples to use contraceptives. 134 As noted previously in this chapter, Justice Douglas derived the “right of privacy older than the Bill of Rights” from the Ninth Amendment and from implications of the First, Third, Fourth, and Fifth Amendments. The Ninth Amendment, therefore, helps to define the delicate balance between government power and individual rights.
FOURTEENTH AMENDMENT The Fourteenth Amendment, enacted in 1868 to prevent racial discrimination after the Civil War, has undoubtedly had more impact on public schools in particular and American society in general than any other rights provision in the Constitution. Beyond the use of the Fourteenth Amendment to absorb and apply the Bill of Rights to the states, discussed earlier, the principal parts of the amendment important to the public schools are the “due process” and “equal protection” clauses. Life, liberty, and property are fundamental rights that can “only be taken away by due process of law.”135 The rights of both students and teachers have been materially affected by the Due Process Clause, and state and school district policies have been greatly influenced by its implementation by the courts. As explained in detail later in this book, the Due Process Clause has both a substantive aspect that expands on the intent and meaning of liberty and property and a procedural aspect that compels the schools to provide fair hearings for students and teachers. The substance of liberty and property, for example, has been interpreted by the Supreme Court in Goss v. Lopez136 to ensure that a student not be excluded from school without proper constitutional procedures. Too, the substance of liberty in due process notably affects teachers’ rights to obtain knowledge and to instruct children. In Meyer v. Nebraska, the Supreme Court extended the meaning of liberty to include the “right . . . to teach and the right
of parents to engage” a teacher “to instruct their children.”137 The Due Process Clause encompasses the employment of teachers. The Supreme Court said in Board of Regents of State Colleges v. Roth138 that “ ‘Liberty’ and ‘property’ are broad and majestic terms;”139 liberty for teachers includes the right to contract, engage in any occupation, and to acquire useful knowledge, and generally to enjoy the privileges essential to the pursuit of happiness.140 For teachers, the term property implicitly includes the interest that one has in employability and livelihood.141 The effects of the substance of liberty and property as “majestic terms,” as protections for students and teachers, are more fully discussed in Chapters 8, 16, and 17. Importantly, in addition, due process of law guarantees fairness in hearing the students’ side of the story in suspension or dismissal proceedings,142 and it similarly ensures that teachers and other employees will be treated fairly by the school district if termination is necessary.143 Here, due process requires that the government and the school district, as an arm of the state, follow given procedures involving notice and a hearing whenever a liberty or property right is to be affected. The second historically important clause in the Fourteenth Amendment, that has guarded equality throughout society, is equal protection. This clause is an “inhibition against denial of equal protection of the laws with exclusive reference to State action.”144 It means that no agency of the state, public schools, “the legislative, the executive or judiciary, no instrumentality of the state and no person, officer or agent exerting the power of the state shall deny equal protection to any person within the jurisdiction of the state. . . .”145 This clause forbids invidious discrimination against persons or classes of people. The Due Process and Equal Protection Clauses “overlap but the spheres of protection are not coterminous.”146 They differ in that the Due Process Clause endeavors to secure equality of law in the “sense that it makes a required minimum of protection for everyone’s right of life, liberty and property against state action. Although, on the other hand, equal protection is aimed at erasing undue favor in individual or class privilege,” and stands importantly as a bulwark against “inequality and hostile discrimination.”147 Equal protection permeates issues in public education and therefore plays an essential part
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Fundamental Rights and Education
in the way the federal judiciary has influenced state legislation governing the public schools and the policies of public schools. The effects of these clauses are fully discussed throughout later chapters of this book.
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Fundamental Rights and Education
As noted at the outset of this chapter, the U.S. Supreme Court held in San Antonio Independent School District v. Rodriguez in 1973 that education is not a fundamental right under the U.S. Constitution.148 Education in the United States has, of course, been shaped materially by many Supreme Court decisions that emanate from individual rights recognized in the Constitution. However, not one of these decisions was based on the legal rationale of education as a fundamental right. “Fundamental rights are beyond the reach of majority will.” 149 These “rights” decisions have constitutional basis in protected fundamental rights such as religion, speech, assembly, privacy, race, and so on. Fundamental human rights are claims on society, and the Supreme Court has decided not to extend such a claim to education. If education were elevated to the level of a fundamental human right, there would be accompanying obligations for the federal government and society to satisfy, which at present, neither the Supreme Court nor Congress are willing to acknowledge for all children. Two types of fundamental rights exist. The first is that of liberty, or freedom, as a civil or political right. Liberty rights are the rights of personal freedom beyond government control: autonomy, freedom of self-control, to hold and keep private property, and to be free of government oppression. The second type is that of dignity, the right to an opportunity to acquire human dignity.
UNIVERSAL PRINCIPLE OF RIGHT Any action is right if it can coexist with everyone’s freedom in accordance with a universal law, or if on its maxim the freedom of choice of each can coexist with everyone’s freedom in accordance with a universal law. —Immanuel Kant
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LIBERTY RIGHTS It is the right of liberty that dominated the thinking of the founding fathers of the United States who had English royal tyranny much on their minds. 150 They viewed life, liberty, and property as inalienable natural rights upon which government could not encroach. Liberty was the cardinal right.151 In this regard, the idea of natural rights could be conceived as “negative rights”; that government “shall not” deny a liberty or a particular freedom was the principal basis of the Bill of Rights. It is this aspect of fundamental rights that the U.S. Supreme Court has enforced through numerous decisions having to do with education, most of which find textual basis in the First Amendment’s religion, speech, and assembly provisions; the Fourth Amendment’s search and seizure restraints; the Fifth Amendment’s mandate that no person shall be deprived of life, liberty, or property without due process of law; and the Fourteenth Amendment’s Equal Protection and Due Process Clauses, that have been most instrumental in the protection of fundamental rights—all of which have had an impact on education policy.152 Each of these rights, as it affects students, teachers, and parents, is discussed in detail in subsequent chapters of this book.
DIGNITY RIGHTS The second aspect of a fundamental right, the right of dignity, the right to be respected by others, is usually thought to include personal security, work, and a means of earning a reasonable wage—an adequate standard of living, including shelter, food, clothing, health care, and, of course, education. It is argued that dignity, worth, and respect in being human cannot be fulfilled without these essentials that all humans owe to each other, for which governments are created to provide. This category of rights is not mentioned in the Constitution, and therefore must be implied by the Supreme Court in the “penumbras” of the Constitution if it is to exist at all. The idea that the state must help provide for the essentials of human existence was not fully developed until the twentieth century, at which time it was realized that, as a matter of morals and ethics, human worth and dignity are implicit in the social contract, requiring more of the state than to merely leave people alone.
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For example, a basic moral imperative is that an individual’s opportunity to succeed in life must not be denied simply because the state will not provide sufficient resources to permit each person to have the necessities of life. The social contract between the individual and the state requires positive state action to provide programs and services to improve the human condition. Jeremy Waldron clearly explained the economic and social aspects of this fundamental right when he wrote: It is no longer widely assumed that human rights must be pinned down to the protection of individual freedom. Humans have other needs as well, related to their health, survival, culture, education, and ability to work. We all know from our own case how important these needs are. . . . It is now widely (though not universally) accepted that material needs generate moral imperatives which are as compelling as those related to democracy and civil liberty. If we want a catalogue of what people owe each other as a matter of moral priority, we should look not only to liberty but also to the elementary conditions of material well being. . . . Everyone has a right to a standard of living adequate for health and well-being of himself and his family [emphasis added].153
Perhaps the best and most famous statement of the moral obligation of government to provide for such rights was given by President Franklin Roosevelt in his 1944 inaugural address, where he proposed an Economic Bill of Rights to which all persons were entitled, “regardless of station, race and creed.”154 The rights advanced by President Roosevelt were the dignity rights to a remunerative job; adequate food, clothing, and recreation; a decent return on products for the farmer; a business free from unfair competition; a decent home; adequate medical care; adequate protection from economic fears in old age; and a good education.155 To President Roosevelt, all of these rights were entitlements, moral obligations of government to take positive action to provide for human happiness and well-being. Later, the United Nation’s Universal Declaration of Human Rights included these rights within Article 26, providing that “[e]veryone has the right to education.” The European Convention on Human Rights also now provides that “no person shall be denied the right to education.”156 Governments that deny dignity rights usually maintain that to remedy denials of such rights
is far too cumbersome, too administratively difficult, too costly, or upsets tradition or precedent. Such were the arguments of those states that had segregated public schools throughout the twentieth century and refused to adequately fund schools for black children.157 To provide for the redress of deprivation of a fundamental right may, therefore, have a price tag that the government is unwilling to bear. This is particularly true in the case of dignity rights related to economic well-being because large governmental programs such as mass public education are major budget items. In this regard, Dworkin further writes: So if rights make sense at all, then the invasion of a relatively important right must be a very serious matter. It means treating a man as less than a man, or as less worthy of concern than other men. The institution of rights rests on the conviction that this is a grave injustice, and that it is worth paying the incremental cost in social policy or efficiency that is necessary to prevent it.158
The U.S. Supreme Court has not exhibited a conviction that the denial of educational opportunity is a grave injustice that the government has a moral obligation to rectify. Effectively, the Court in Rodriguez decided that education was not sufficiently essential to human dignity to merit the legal appellation of a fundamental right. The obligation of the federal government for education is, therefore, limited by the reluctance of the Supreme Court to venture beyond the traditional “liberty and freedom” aspect of rights. For the Supreme Court to recognize only those “negative rights” or “thou shalt nots” pertaining to liberty, to be free from governmental interference, requires much less of an outlay of governmental resources than is required for social rights, necessitating affirmative governmental actions in creating and adequately funding programs such as education. It was precisely at this point of accommodating the right of education and considering state costs, local property taxes, and local control of schools, that the U.S. Supreme Court in Rodriguez backed away from recognizing education as a fundamental right. The Court said that the assertion by plaintiffs in Rodriguez 159 that education was a fundamental right was “nothing less than a direct attack on the way
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Fundamental Rights and Education
Texas has chosen to raise and disburse state and local tax revenues.”160 The Court further pointed out that to designate education as a fundamental right would create “intractable economic, social, and even philosophical problems.”161 In other words, the Court would not recognize education as a fundamental right primarily because, in Dworkin’s words, it was not “worth paying the incremental cost.”162 The influence of the Rodriguez decision on the federal policy should not be underestimated in its effect on the structure of education in the federal system. The consequences of the Supreme Court recognizing that education is a constitutionally fundamental right would undoubtedly have an impact, not only on the way states conduct and finance their school systems, but on federal education programs as well. If the Supreme Court found that education was a constitutionally fundamental right, then it would be doubtful that the federal government could ignore the actual costs of the education of children who are at risk or have a disability, or other education costs when Congress appropriates funds to the states. Various federal distribution formulas that are at the heart of federal grants to states would be subject to close scrutiny as to their possible effects on schoolchildren in states and school districts. Moreover, and possibly more importantly, if education were to be classified as a fundamental right, the balance of federalism between the federal and state governments could be affected in shifting the expenditure obligations and tax burdens in different patterns among the levels of government. Thus, the Supreme Court’s decision in Rodriguez is of paramount importance to the federal government’s role in education. When Demetrius Rodriguez and six other parents launched their complaint on behalf of their children who attended an inferior school, they probably did not realize that they were raising a profound human rights issue that is today a foremost moral and ethical consideration of modern states and nations worldwide. A portion of the Supreme Court’s decision in San Antonio Independent School District v. Rodriguez follows. Justice Powell wrote the opinion for the 5–4 majority. Significantly, Arthur Gochman, attorney for the plaintiffs, argued that education lies at the heart of the exercise of all
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other liberties and freedoms, and that the other rights cannot be fully realized without knowledge and education. Gochman succinctly stated that education “is related to every important right we have as citizens.”163 In so saying, he tied education to rights and liberty as John Adams had done in 1765, when he observed that education evokes and sustains liberty, that Americans founded their liberties on “knowledge diffused generally through the whole body of the people.”164
Education Is Not a Fundamental Right Under the U.S. Constitution
San Antonio Independent School District v. Rodriguez Supreme Court of the United States, 1973. 411 U.S. 1, 93 S. Ct. 1278, rehearing denied, 411 U.S. 959, 93 S. Ct. 1919 (1973).
Mr. Justice POWELL delivered the opinion of the Court. This suit attacking the Texas system of financing public education was initiated by Mexican-American parents whose children attend the elementary and secondary schools in the Edgewood Independent School District, an urban school district in San Antonio, Texas. They brought a class action on behalf of schoolchildren throughout the State who are members of minority groups or who are poor and reside in school districts having a low property tax base. . . . For the reasons stated in this opinion, we reverse the decision of the District Court. . . . Texas virtually concedes that its historically rooted dual system of financing education could not withstand the strict judicial scrutiny that this Court has found appropriate in reviewing legislative judgments that interfere with fundamental constitutional rights or that involve suspect classifications. . . . The State candidly admits that “[n]o one familiar with the Texas system would contend that it has yet achieved perfection.”
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Apart from its concession that educational financing in Texas has “defects” and “imperfections,” the State defends the system’s rationality with vigor and disputes the District Court’s finding that it lacks a “reasonable basis.” This, then, establishes the framework for our analysis. We must decide, first, whether the Texas system of financing public education operates to the disadvantage of some suspect class or impinges upon a fundamental right explicitly or implicitly protected by the Constitution, thereby requiring strict judicial scrutiny. If so, the judgment of the District Court should be affirmed. If not, the Texas scheme must still be examined to determine whether it rationally furthers some legitimate, articulated state purpose and therefore does not constitute an invidious discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment. . . . The Texas system of school financing might be regarded as discriminating (1) against “poor” persons whose incomes fall below some identifiable level of poverty or who might be characterized as functionally “indigent,” or (2) against those who are relatively poorer than others, or (3) against all those who, irrespective of their personal incomes, happen to reside in relatively poorer school districts. Our task must be to ascertain whether, in fact, the Texas system has been shown to discriminate on any of these possible bases and, if so, whether the resulting classification may be regarded as suspect. . . . Only appellees’ first possible basis for describing the class disadvantaged by the Texas schoolfinancing system—discrimination against a class of definably “poor” persons—might arguably meet the criteria established in . . . prior cases. Even a cursory examination, however, demonstrates that neither of the two distinguishing characteristics of wealth classifications can be found here. First, in support of their charge that the system discriminates against the “poor,” appellees have made no effort to demonstrate that it operates to the peculiar disadvantage of any class fairly definable as indigent, or as composed of persons whose incomes are beneath any designated poverty level. Indeed, there is reason to believe that the poorest families are not necessarily clustered in the poorest property districts. . . . Second, neither appellees nor the District Court addressed the fact that, unlike each of the
foregoing cases, lack of personal resources has not occasioned an absolute deprivation of the desired benefit. The argument here is not that the children in districts having relatively low assessable property values are receiving no public education; rather, it is that they are receiving a poorer quality education than that available to children in districts having more assessable wealth. . . . For these two reasons—the absence of any evidence that the financing system discriminates against any definable category of “poor” people or that it results in the absolute deprivation of education—the disadvantaged class is not susceptible of identification in traditional terms. . . . This brings us, then, to the third way in which the classification scheme might be defined— district wealth discrimination. Since the only correlation indicated by the evidence is between district property wealth and expenditures, it may be argued that discrimination might be found without regard to the individual income characteristics of district residents. . . . However described, it is clear that appellees’ suit asks this Court to extend its most exacting scrutiny to review a system that allegedly discriminates against a large, diverse, and amorphous class, unified only by the common factor of residence in districts that happen to have less taxable wealth than other districts. The system of alleged discrimination and the class it defines have none of the traditional indicia of suspectness: the class is not saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process. We thus conclude that the Texas system does not operate to the peculiar disadvantage of any suspect class. But in recognition of the fact that this Court has never heretofore held that wealth discrimination alone provides an adequate basis for invoking strict scrutiny, appellees have not relied solely on this contention. They also assert that the State’s system impermissibly interferes with the exercise of a “fundamental” right and that accordingly the prior decisions of this Court require the application of the strict standard of judicial review. . . . It is this question—whether education is a fundamental right, in the sense
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Fundamental Rights and Education
that it is among the rights and liberties protected by the Constitution—which has so consumed the attention of courts and commentators in recent years. . . . Nothing this Court holds today in any way detracts from our historical dedication to public education. We are in complete agreement with the conclusion of the three-judge panel below that “the grave significance of education both to the individual and to our society” cannot be doubted. But the importance of a service performed by the State does not determine whether it must be regarded as fundamental for purposes of examination under the Equal Protection Clause. . . . It is not the province of this Court to create substantive constitutional rights in the name of guaranteeing equal protection of the laws. Thus, the key to discovering whether education is “fundamental” is not to be found in comparisons of the relative societal significance of education as opposed to subsistence or housing. Nor is it to be found by weighing whether education is as important as the right to travel. Rather, the answer lies in assessing whether there is a right to education explicitly or implicitly guaranteed by the Constitution. . . . Education, of course, is not among the rights afforded explicit protection under our federal Constitution. Nor do we find any basis for saying it is implicitly so protected. As we have said, the undisputed importance of education will not alone cause this Court to depart from the usual standard for reviewing a State’s social and economic legislation. It is appellees’ contention, however, that education is distinguishable from other services and benefits provided by the State because it bears a peculiarly close relationship to other rights and liberties accorded protection under the Constitution. Specifically, they insist that education is itself a fundamental personal right because it is essential to the effective exercise of First Amendment freedoms and to intelligent utilization of the right to vote. . . . . . . We need not dispute any of these propositions. The Court has long afforded zealous protection against unjustifiable governmental interference with the individual’s rights to speak and to vote. Yet we have never presumed to possess either the ability or the authority to guarantee to the citizenry the most effective speech or the most informed electoral choice. That these
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may be desirable goals of a system of freedom of expression and of a representative form of government is not to be doubted. These are indeed goals to be pursued by a people whose thoughts and beliefs are freed from governmental interference. But they are not values to be implemented by judicial intrusion into otherwise legitimate state activities. Even if it were conceded that some identifiable quantum of education is a constitutionally protected prerequisite to the meaningful exercise of either right, we have no indication that the present levels of educational expenditures in Texas provide an education that falls short. Whatever merit appellees’ argument might have if a State’s financing system occasioned an absolute denial of educational opportunities to any of its children, that argument provides no basis for finding an interference with fundamental rights where only relative differences in spending levels are involved and where—as is true in the present case—no charge fairly could be made that the system fails to provide each child with an opportunity to acquire the basic minimal skills necessary for the enjoyment of the rights of speech and of full participation in the political process. . . . It should be clear, for the reasons stated above and in accord with the prior decisions of this Court, that this is not a case in which the challenged state action must be subjected to the searching judicial scrutiny reserved for laws that create suspect classifications or impinge upon constitutionally protected rights. We need not rest our decision, however, solely on the inappropriateness of the strictscrutiny test. A century of Supreme Court adjudication under the Equal Protection Clause affirmatively supports the application of the traditional standard of review, which requires only that the State’s system be shown to bear some rational relationship to legitimate state purposes. This case represents far more than a challenge to the manner in which Texas provides for the education of its children. We have here nothing less than a direct attack on the way in which Texas has chosen to raise and disburse state and local tax revenues. We are asked to condemn the State’s judgment in conferring on political subdivisions the power to tax local property to supply revenues for local interests. In so doing,
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appellees would have the Court intrude in an area in which it has traditionally deferred to state legislatures. . . . In addition to matters of fiscal policy, this case also involves the most persistent and difficult questions of educational policy, another area in which this Court’s lack of specialized knowledge and experience counsels against premature interference with the informed judgments made at the state and local levels. Education, perhaps even more than welfare assistance, presents a myriad of “intractable economic, social, and even philosophical problems.” . . . The very complexity of the problems of financing and managing a statewide public school system suggests that “there will be more than one constitutionally permissible method of solving them,” and that, within the limits of rationality, “the legislature’s efforts to tackle the problems” should be entitled to respect. . . . In sum, to the extent that the Texas system of school financing results in unequal expenditures between children who happen to reside in different districts, we cannot say that such disparities are the product of a system that is so irrational as to be invidiously discriminatory. . . . In its essential characteristics, the Texas plan for financing public education reflects what many educators for a half century have thought was an enlightened approach to a problem for which there is no perfect solution. . . . We hold that the Texas plan abundantly satisfies this standard. . . . The consideration and initiation of fundamental reforms with respect to state taxation and education are matters reserved for the legislative processes of the various States, and we do no violence to the values of federalism and separation of powers by staying our hand. . . . Reversed.
CASE NOTES 1. The U.S. Supreme Court has recognized these implied, nontextual rights as emanating from the Bill of Rights and other constitutional provisions, principally the Due Process Clauses of the Fifth and Fourteenth Amendments and the Equal Protection Clause of the Fourteenth Amendment. Justice Douglas referred to these rights in Griswold v. Connecticut as within the “penumbras” of the Bill of Rights. Douglas wrote, “. . . the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” Justice
Douglas expanded by implication of the Bill of Rights by relying on a natural law rationale to protect individual privacy. He asserted, “We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system.” In Griswold, it was marriage and privacy that were denominated as fundamental rights even though neither was specifically mentioned in the Bill of Rights. Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678 (1965). 2. Implied rights include: the right to marry (implied from the “liberty” reference in the Due Process Clause of the Fourteenth Amendment), Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817 (1967); Zablocki v. Redhail, 434 U.S. 378, 98 S. Ct. 673 (1978); the right of parents to custody of their children (implied from the Due Process Clause) Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208 (1972); Michael H. v. Gerald D., 491 U.S. 110, 109 S. Ct. 2333 (1989); the right to keep the family together (Due Process Clause) Moore v. City of East Cleveland, 431 U.S. 494, 97 S. Ct. 1932 (1977); the right of parents to control the education and upbringing of their children (Due Process Clause) Meyer v. Nebraska, 262 U.S. 390, 3 St. Ct. 625 (1923); Pierce v. Society of Sisters, 268 U.S. 510, 45 S. Ct. 571(1925); Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054 (2000); the right to procreate (Equal Protection Clause of Fourteenth Amendment) Skinner v. Oklahoma, 316 U.S. 535, 62 S. Ct. 1110 (1942); the right to purchase and use contraceptives (zone of privacy as implied by the First Amendment, Due Process Clause, and several other constitutional guarantees), Griswold v. Connecticut, op. cit.; Eisenstadt v. Baird, 405 U.S. 438, 92 S. Ct. 1029 (1972); the right to abortion (privacy as implied by the “liberty” reference in the Due Process Clause of the Fourteenth Amendment) Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705 (1973); Planned Parenthood v. Casey, 505 U.S. 833, 112 S. Ct. 2791 (1992); the right to refuse medical treatment (“liberty” reference of the Due Process Clause) Cruzan v. Director, Missouri Department of Health, 497 U.S. 261, 110 S. Ct. 2841 (1990); the right to travel and to migrate interstate, not including international travel (Privileges and Immunities Clause of Article IV, Section 2) Saenz v. Roe, 526 U.S. 489, 119 S. Ct. 1518 (1999); and the right to vote (explicitly provided for in the Fifteenth,
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Education as a Unique Governmental Function
Nineteenth, Twenty-Fourth, and TwentySixth Amendments as well as implicitly provided for in the Fourteenth Amendment). As early as 1886, in Yick Wo v. Hopkins, 118 U.S. 356, 6 S. Ct. 1064 (1886), the Supreme Court said that the “right to vote is a ‘fundamental political right’ because it is the ‘preservative of all rights.’ ” See Erwin Chemerinsky, Constitutional Law (New York, New York: Aspen Law & Business, 2001), pp. 816–817; Kramer v. Union Free School District, 395 U.S. 621, 89 S. Ct. 1886 (1969).
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Education as a Unique Governmental Function
After Rodriguez, the Supreme Court repeated its denial of education as a fundamental right in Plyler v. Doe,165 Papason v. Allain,166 and Kadrmas v. Dickinson Public Schools. 167 In each case, the Supreme Court went to considerable lengths to extol the virtues of education and to assert that it is a special, yet not a fundamental, right. In Plyler, the Supreme Court ruled that even though education is not a fundamental right, to completely deny it to children of undocumented immigrants is irrational and violates the Equal Protection Clause. Writing for the Court, Justice Brennan spoke of education as being a unique function of government: Public education is not a “right” granted to individuals by the Constitution. But neither is it merely some governmental “benefit” indistinguishable from other forms of social welfare legislation. Both the importance of education in maintaining our basic institutions, and the lasting impact of its deprivation on the life of the child mark the distinction. . . .168
Although the Court has not declared education to be a fundamental right, it does appear that the Court views education as critical to every individual in the exercise of other essential freedoms guaranteed by the Constitution. In Plyler, the Texas state law resulted in a complete denial of public education to children of undocumented immigrants, and the Court struck down the law even though the Court would not declare that education is a fundamental right. In Papason,169 the Court, although reinforcing that education is not a fundamental right, nevertheless set constitutional guidelines that invalidated a Mississippi state law that distributed
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state money unequally among school districts. As in Plyler, the Court drew a very fine line to distinguish Rodriguez by maintaining that Rodriguez involved issues of local property wealth and local control, whereas in Papason, the state directly discriminated by giving more state funds to some districts than to others. Thus, the Court found such a malapportionment of funds to be irrational, and in so holding, effectively skirted the fundamentality issue. Later, in Kadrmas,170 a poor family challenged a state law authorizing local school districts to charge a fee to ride school buses. The Court, in upholding the fee and ruling against the family, reaffirmed that education is not a fundamental right and followed earlier precedents in holding that poverty is not a protected or suspect classification. Thus, in these cases, the Supreme Court has consistently adhered to its Rodriguez precedent—education is not a fundamental right. Even though the Court has consistently lauded the benefits of education and has pointed out its essential necessity, fundamentality remains beyond the constitutional grasp of education. In its rulings, the Court has remained constant in its “general unwillingness to hold that there are constitutional rights to affirmative services provided by government.”171 Throughout, the Court has remained expansive in its view of liberty rights such as speech and press, but restrictive and wary of extending dignity rights, of which education is obviously a foremost contender. Yet the Court holds education in particularly high esteem as a necessity for all individuals and recognizes the importance of government provision of public schools. As Justice Brennan observed in Plyler, public education is “not merely some governmental ‘benefit,’ ” but a distinguishable and unique imperative to the individual and the state. Following the trend of the Court’s reasoning from Rodriguez to Plyler to Papason and then to Kadrmas suggests that the Court, although defending its determination that education is not a fundamental right, effectively regards it in a special category of governmental functions. The Supreme Court, therefore, happens not to have closed the door completely on a heightened scrutiny standard if a proper set of facts involving denial of education should emerge. In Rodriguez, the Court did not foreclose this possibility, saying, “that some identifiable quantum
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of education is a constitutionally protected prerequisite to the meaningful exercise of either [the right to speak or the right to vote].”172 In theory, then, should the education provided by a state fall short of some “hypothetical constitutional prerequisite,” the Court could possibly invoke the heightened level of scrutiny associated with a fundamental right. In this light, the Court has not been called upon to address the direct question of whether a state could deny a child access to a minimally adequate education.173 The Court has explicitly left undecided the question of a constitutional inadequacy of education and at what level a detriment is sufficient to violate a constitutional right. “The question remains open today.”174
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Summation of Case Law
Spending Clause 1. Federal legislation enacted pursuant to spending power of the General Welfare Clause is much in nature of a contract. In return for federal funds, states agree to comply with federally imposed conditions. The legitimacy of Congress’s power to legislate under its spending power rests on whether a state voluntarily and knowingly accepts terms of “contract.” U.S.C.A. Const. Art. 1, § 8, cl. 1. 2. If Congress intends to impose a condition on a grant of federal monies pursuant to spending power, it must do so unambiguously, especially where a state’s potential obligations are largely indeterminate. 3. The constitutional spending power of Congress is not unlimited, but is instead subject to several general restrictions, including the requirement that the exercise of spending power be in pursuit of general welfare. 4. In considering whether a particular expenditure is intended to serve general public purposes so as to be within Congress’s spending power, the courts will defer substantially to the judgment of Congress. 5. If Congress desires to use the spending power to condition states’ receipt of federal funds, it must do so clearly, distinctly, and unequivocally, enabling states to exercise their choice knowingly, cognizant of the consequences of participation.
Supremacy Clause 1. State laws that directly contravene federal laws are unconstitutional as violative of the Supremacy Clause of the U.S. Constitution. Equal Protection 1. If a state statute does not deny a fundamental right, it will ordinarily survive an equal protection attack so long as the challenged classification is rationally related to a legitimate governmental purpose. 2. The test of strict judicial scrutiny of a state’s laws is reserved for cases involving laws which operate to the disadvantage of suspect classes or interfere with the exercise of fundamental rights and liberties explicitly or implicitly protected by the Constitution. 3. Although education is one of the most important services performed by the state, it is not among rights afforded explicit or implicit protection under the Federal Constitution. 4. Questions of federalism are always inherent in the process of determining whether a state’s laws are to be accorded traditional presumption of constitutionality or are to be subjected instead to rigorous judicial scrutiny. 5. Maintenance of principles of federalism is a foremost consideration in interpreting any pertinent provisions when the U.S. Supreme Court seeks to determine whether there is state action. 6. The constitutional standard under the Equal Protection Clause of the Fourteenth Amendment is whether the challenged state action rationally furthers a legitimate state purpose or interest.
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Research Aids
Research citations below are abbreviated as: American Law Reports (A.L.R.), American Jurisprudence, (Am.Jur.), Corpus Juris Secundum (C.J.S.), and McQuillen Municipal Corporations (McQuillen Mun.Corp.). Explanations for each of these sources of law are found in Chapter 1 of this text. Also, see Appendix B of this book. 91 C.J.S. United States § 158. Fiscal Management: Appropriations. 16 Am.Jur.2d Constitutional Law § 237. Separation of Governmental Powers. 16 Am.Jur.2d Constitutional Law § 138.
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Endnotes
5 McQuillen Mun.Corp.§ 19:111 (3 rel. ed.). Consti tutionality of Ordinances: Interference with Foreign or Interstate Commerce. 41 A.L.R. Fed. 2d. 1. Construction and Application of Dormont Commerce Clause, U.S. Const. Art. I, § 8, cl. 3, Supreme Court Cases. Am. Jur. 2d. American Jurisprudence 2d. 68 Am.Jur.2d Schools § 52. Power as Limited by Equal Protection. NATIONAL ACCESS NETWORK at Teachers College, Columbia University; www.schoolfunding. info. Law Review Wendy Parker, “Limiting the Equal Protection Clause Roberts Style,” University of Miami Law Review, January 2009, 63:2.
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Endnotes
1. Forrest McDonald, Novus Ordo Seclorum (Lawrence: University Press of Kansas, 1985), p. 53. 2. Immanuel Kant, The Metaphysics of Morals (1797), trans. Mary Gregor (Cambridge, England: Cambridge University Press, 1991), pp. 190–192. 3. Montesquieu, The Spirit of Laws (1748), trans. and ed. David Wallace Carrithers (Berkeley, Calif.: University of California Press, 1977), p. 130. 4. Ibid., pp. 190–191. 5. Ibid., p. 191. 6. Roe L. Johns, Edgar L. Morphet, and Kern Alexander, The Economics and Financing of Education, 4th ed. (Upper Saddle River, N.J.: Prentice Hall, 1983), p. 332. 7. U.S.C.A., Title 20, Education, §§ 81–1686. 8. San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S. Ct. 1278, rehearing denied, 411 U.S. 959, 93 S. Ct. 1919 (1973). 9. Plyler v. Doe, 457 U.S. 202, 102 S. Ct. 2382 (1982). 10. Papason v. Allain, 478 U.S. 265, 106 S. Ct. 2932 (1986). 11. Article 2 of Protocol No. 1, European Convention Human Rights, See Case Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium, 6 Eur. Ct. H.R. (ser. A), 1 E.H.R.R. 252 (1968). Universal Declaration of Human Rights, (4) International Covenant on Economic, Social and Cultural Rights, Article 26, and International Covenant on Civil and Political Rights, Article 18 (4). 12. United States v. Sprague, 282 U.S. 716, 51 S. Ct. 220 (1931). 13. Annals of Congress, 1897 (1791). See Edward S. Corwin, ed., The Constitution of the United States of America (Washington, D.C.: U.S. Government Printing Office, 1964), pp. 1035–1036. 14. Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S. Ct. 1114 (1996). 15. Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (New York: Vintage Books, 1997), pp. 324–325. 16. Atascadero State Hospital v. Scanlon, 473 U.S. 234, 105 S. Ct. 3142 (1985); See also Edelman v. Jordan, 415 U.S. 651, 94 S. Ct. 1347 (1974).
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17. Nevada v. Hall, 440 U.S. 418, 99 S. Ct. 1182 (1979). 18. Rakove, op. cit., pp. 324–325. 19. John Locke used the term federative power in describing aspects of a government concerned with relations among several states. See Rakove, Original Meanings, p. 167. 20. Alden v. Maine, 527 U.S. 706, 119 S. Ct. 2240 (1999). See Martin v. Hunter’s Lessee, 1 Wheat 304 (1816); City of Boerne v. Flores, 521 U.S. 507, 117 S. Ct. 2157 (1997); United States v. Lopez, 514 U.S. 549, 115 S. Ct. 1624 (1995). 21. Article I, § 8, cl. 1. 22. United States v. Butler, 297 U.S. 1, 56 S. Ct. 312 (1936). 23. Ibid. 24. Helvering v. Davis, 301 U.S. 619, 57 S. Ct. 904 (1937). 25. Ibid. 26. 3 Writings of Thomas Jefferson (Library Edition, 1904), pp. 147–149. 27. Edward S. Corwin, The Constitution, rev. Harold W. Chose and Craig R. Ducet (Princeton, N.J.: Princeton University Press, 1978), pp. 139–144. 28. Henry Hart, “The Relations Between State and Federal Law,” Columbia Law Review, Vol. 54 (1954), p. 489. 29. Wheeler v. Barrera, 417 U.S. 402, 94 S. Ct. 2274 (1974), modified, 422 U.S. 1004, 95 S. Ct. 2625 (1975). 30. Title I—Improving the Academic Achievement of the Disadvantaged, Section 101. Improving the Academic Achievement of the Disadvantaged. Title I of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 6301 et seq.) amended. Section 1001. 31. Ibid. 32. South Dakota v. Dole, 483 U.S. 203, 107 S. Ct. 2793 (1987). 33. Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 101 S. Ct. 1531 (1981). 34. Board of Ed. of Hendrick Hudson Central School District, Westchester County v. Rowley, 458 U.S. 176, 102 S. Ct. 3034 (1982). 35. Pennhurst, op cit. 36. Arlington Central School District v. Murphy, 548 U.S. 291, 126 S. Ct. 2455 (2006). 37. Ibid. 38. Ibid. Too, in Murphy, Justice Ginsburg pointed out that justification for federal expenditure of funds and imposing requirements on state response is to be found not only in the General Welfare Clause, but also under Section 5 of the Fourteenth Amendment. 39. Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, 126 S. Ct. 1297 (2006). 40. School District of the City of Pontiac v. Secretary of the United States Department of Education, 584 F.3d 253 (6th Cir. Oct 16, 2009); Citing Plaintiffs Complaint for Declaratory and Injunction Relief 12: Joint Appendix (“J.A.”) 21, (quoting Paige’s statement of December 2, 2003). 41. Complaint 12; JA 21 (quoting Rodney Paige, Sec’y, U.S. Dept of Educ.), Remarks to National Urban League (March 25, 2004). 42. Pennhurst State School & Hospital v. Halderman, 451 U.S. 1, 101 S. Ct. 1531 (1981). 43. School District of Pontiac v. Spellings, 2005 WL 3149545 (E.D. Mich., Nov 23, 2005). 44. Pontiac School District v. Secretary of U.S. Department of Education, 512 F. 3d 252 (6th Cir. 2008). 45. School District of the City of Pontiac v. Duncan, ___ U.S. ___, 130 S. Ct. 3385 (2010).
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46. Board of Education of Ottawa Township High School District 140 v. Spellings, 517 F. 3d 922 (7th Cir. 2008). 47. See: Alliance for Children, Inc. v. City of Detroit Public Schools, 475 F. Supp. 2d 655 (E.D. Mich. 2007). 48. Constantine v. Rectors and Visitors of George Mason University, 411 F. 3d 474 (4th Cir. 2005). 49. Ibid. 50. Article I, § 8, cl. 3. 51. Gibbons v. Ogden, 22 U.S. (9 Wheat) 1 (1824). 52. Edward Goodell, The Nobel Philosopher, Condorcet and The Enlightenment (Buffalo, NY: Prometheus Books, 1994), p. 215. 53. Ibid. 54. The power of Congress “[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers. . . .” Article I, § 8, cl. 18. 55. Gibbons v. Ogden, op. cit. Justice Marshall stated: “[T]he power of Congress does not stop at the jurisdictional lines of the several States,” but “must be exercised whenever [and wherever] the subject exists. . . . Commerce among the States must, of necessity, be commerce [within] the States.” 56. Ibid. “[T]he power over commerce . . . is vested in Congress as absolutely as it would be in a single government, having in its constitution the same restrictions on the exercise of the power as are found in the Constitution of the United States. The wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at elections, are . . . the sole restraints on which they have relied, to secure them from its abuse. They are the restraints on which the people must often rely solely, in all representative governments.” 57. American Power and Light Co. v. Securities and Exchange Commission, 329 U.S. 90, 67 S. Ct. 133 (1946). 58. National League of Cities v. Usery, 426 U.S. 833, 96 S. Ct. 2465 (1976). 59. Welch, “At Federalism’s Crossroads,” pp. 178–179. 60. Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 105 S. Ct. 1005 (1985). 61. United States v. Lopez, 514 U.S. 549, 115 S. Ct. 1624 (1995). 62. McCulloch v. Maryland, 17 U.S. (4 Wheat) 316 (1819). 63. James Madison, Alexander Hamilton, and John Jay, The Federalist Papers, ed. Issac Krammick, first published in 1788 (Hammondsworth, UK: Penguin Books, 1987), p. 225. 64. Ibid. 65. Ibid.; see also Alden v. Maine, 527 U.S. 706, 119 S. Ct. 2240 (1999); Printz v. United States, 521 U.S. 898, 117 S. Ct. 2365 (1997). 66. See Peter Irons, A People’s History of the Supreme Court (New York: Viking, 1999), pp. 44–45. 67. The Federalist Papers, op. cit., p. 259. 68. Jack N. Rakove, Original Meanings (New York: Vintage Books, Random House, 1997), p. 168. 69. Ibid., p. 175. 70. Madison, op. cit. 71. Alden v. Maine, op. cit. 72. Ibid. 73. Ibid. 74. See Holmes v. Jennison, 14 Pet. 540 (1840). 75. 4 Wheat 518 (1819). 76. Home Building and Loan Ass’n v. Blaisdell, 290 U.S. 398, 54 S. Ct. 231 (1934).
77. Indiana ex rel. Anderson v. Brand, 303 U.S. 95, 58 S. Ct. 443 (1938). 78. Dodge v. Board of Education of City of Chicago, 302 U.S. 74, 58 S. Ct. 98 (1937). 79. City of Boerne v. Flores, 521 U.S. 507, 117 S. Ct. 2157 (1997); see also Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S. Ct. 1114 (1996). 80. Alden v. Maine, op. cit. 81. Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 527 U.S. 627, 119 S. Ct. 2199 (1999). 82. Kimel v. Florida Board of Regents, 528 U.S. 62, 120 S. Ct. 631 (2000). 83. University of Alabama v. Garrett, 531 U.S. 356, 121 S. Ct. 955 (2001). 84. Alden v. Maine, op. cit. 85. Missouri v. Fiske, 290 U.S. 18, 54 S. Ct. 18, 20 (1933). 86. 3 Elliott’s Debates, 553. 87. Hans v. Louisiana, 134 U.S. 1, 10 S. Ct. 504 (1890); Employees v. Department of Public Health and Welfare, 411 U.S. 279, 93 S. Ct. 1614 (1973). 88. Great Northern Life Insurance Co. v. Read, 322 U.S. 47, 64 S. Ct. 873 (1944). 89. Rakove, op. cit., p. 163. 90. See Kimel v. Florida Board of Regents, op. cit.; Alden v. Maine, op. cit.; Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, op. cit.; Seminole Tribe of Florida v. Florida, op. cit.; University of Alabama v. Garrett, op. cit. 91. Seminole Tribe of Florida v. Florida, op. cit. 92. Blatchford v. Native Village of Noatak, 501 U.S. 775, 111 S. Ct. 2578 (1991); Hans v. Louisiana, 134 U.S. 1, 10 S. Ct. 504 (1890). 93. The Federalist Papers, Number 81, op. cit. 94. See Seminole Tribe of Florida v. Florida, op. cit., citing Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, 506 U.S. 139, 113 S. Ct. 684 (1993). 95. Alden v. Maine, op. cit. 96. Atascadero State Hospital v. Scanlon, 473 U.S. 234, 105 S. Ct. 3142 (1985). 97. Edelman, op. cit., p. 673, 94 S. Ct. at 1360. 98. Green v. Mansour, 474 U.S. 64, 106 S. Ct. 423 (1985). 99. Ibid. 100. Blatchford v. Native Village of Noatak, op. cit. 101. Atascadero State Hospital v. Scanlon, op. cit. 102. Seminole Tribe of Florida v. Florida, op. cit. 103. Ibid. 104. Kimel v. Florida Board of Regents, op. cit. 105. Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, op. cit. 106. Edelman, op. cit.; see also Atascadero State Hospital v. Scanlon, op. cit.; Fitzpatrick v. Bitzer, op. cit.; Quern v. Jordan, 440 U.S. 332, 342, 99 S. Ct. 1139, 1140 (1979). 107. See Molitor v. Kaneland Community Unit District No. 302, 18 Ill.2d 11, 163 N.E.2d 89 (1959). 108. Ibid. 109. Edward S. Corwin (ed.), The Constitution of the United States of America (Washington, D.C.: U.S. Government Printing Office, 1964), p. 563, citing Miller, On the Constitution (1891), p. 314. 110. See Leonard W. Levy, Constitutional Opinions: Aspects of the Bill of Rights (New York: Oxford University Press, 1986), p. 114.
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Quoted Box Citations 111. Ibid., p. 118. 112. Ibid., p. 113. 113. Ibid. 114. Ibid. 115. Cantwell v. Connecticut, 310 U.S. 296, 60 S. Ct. 900 (1940); see also Jesse H. Choper, “A Century of Religious Freedom,” 88 Calif. L. Rev. 1709 (2000). 116. Dennis v. United States, 341 U.S. 494, 71 S. Ct. 857 (1951). 117. Edward S. Corwin, ed., The Constitution of the United States of America (Washington, D.C.: U.S. Government Printing Office, 1964), p. 845. 118. Gitlow v. New York, 268 U.S. 652, 45 S. Ct. 625 (1925). 119. Corwin, op. cit., p. 845. 120. Cantwell v. Connecticut, 310 U.S. 296, 60 S. Ct. 900 (1940). 121. Near v. Minnesota, 283 U.S. 697, 51 S. Ct. 625 (1931). 122. DeJonge v. Oregon, 299 U.S. 353, 57 S. Ct. 255, (1937). 123. Leonard W. Levy, Origins of the Bill of Rights (New Haven, CT: Yale University Press, 2001), p. 79. 124. Ibid. 125. West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S. Ct. 1178 (1943). 126. New Jersey v. T.L.O., 469 U.S. 325, 105 S. Ct. 733 (1985). 127. Vernonia School District 47J v. Acton, 515 U.S. 646, 115 S. Ct. 2386 (1995). 128. Board of Education of Independent School District No. 92 of Pottawatomie v. Earls, 536 U.S. 822, 122 S. Ct. 2559 (2002). 129. Beilan v. Board of Education, 357 U.S. 399, 78 S. Ct. 1317 (1958). 130. Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686 (1954). 131. Bolling v. Sharpe, 347 U.S. 497, 74 S. Ct. 693 (1954). 132. Ingraham v. Wright, 430 U.S. 651, 97 S. Ct. 1401 (1977). 133. Levy, op. cit., p. 29. 134. Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678 (1965). 135. Slaughter-House Cases, 16 Wall. 36, 83 U.S. 36, 21 L.Ed. 394 (1872). 136. Goss v. Lopez, 419 U.S. 565, 95 S. Ct. 729 (1975). 137. Meyer v. Nebraska, 262 U.S. 390, 43 S. Ct. 625 (1923). 138. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S. Ct. 2701 (1972). 139. Ibid. 140. Ibid. See also Meyer v. Nebraska, op. cit. 141. Perry v. Sindermann, 408 U.S. 593, 92 S. Ct. 2694 (1972). 142. See Goss, op. cit. 143. See Roth, op. cit.; Sindermann, op. cit. 144. Corwin, op. cit., p. 1279. 145. Ibid., p. 1280. 146. Ibid., p. 1283. 147. Truax v. Corrigan, 257 U.S. 312, 42 S. Ct. 124 (1921). 148. San Antonio Independent School District v. Rodriguez, supra. 149. Jed Rubenfeld, “Legitimacy and Interpretation in Constitutionalism,” ed. Larry Alexander, (Cambridge: Cambridge University Press, 1998), p. 212. 150. William Blackstone, Commentaries on the Laws of England, Book 1, Chapter 1 (1769). 151. Henkin, op. cit., p. 5. 152. See, e.g., Pierce v. Society of Sisters, 268 U.S. 510, 45 S. Ct. 571 (1925); Wisconsin v. Yoder, 406 U.S. 205, 92 S. Ct.
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1526 (1972); Meyer v. Nebraska, 262 U.S. 390, 43 S. Ct. 625 (1923); Edwards v. Aguillard, 482 U.S. 578, 107 S. Ct. 2573 (1987); New Jersey v. T.L.O., 469 U.S. 325, 105 S. Ct. 733 (1985); Goss v. Lopez, 419 U.S. 565, 95 S. Ct. 779 (1975). 153. Jeremy Waldron, “Nonsense Upon Stilts” (1987), pp. 157–159, in Henkin, op. cit., pp. 83–85. 154. Ibid. 155. Nathan Miller, F.D.R., An Intimate History (New York: A Meridian Book, New American Library, 1983), pp. 497–498. 156. See Henkin, op. cit., p. 1183. 157. Note in particular Missouri v. Jenkins, 515 U.S. 70, 115 S. Ct. 2038 (1995), wherein the U.S. Supreme Court ruled that de jure segregation in one school district does not justify inter-district remedies involving more than one school district. 158. Ronald Dworkin, Taking Rights Seriously (Cambridge, Mass.: Harvard University Press, 1977), p. 199. 159. Rodriguez, op. cit. 160. Ibid. 161. Ibid. 162. Dworkin, op. cit., p. 199. 163. See Peter Irons, The Courage of Their Convictions (New York: Penquin Books, Inc., 1990), p. 289 164. See Samuel H. Beer, To Make a Nation, The Rediscovery of American Federalism (Cambridge, Mass: The Belknap Press of Harvard University, 1993), pp. 27–28, citing John Adams, A Dissertation on the Canon and Feudal Law (1765). 165. Plyler v. Doe, 457 U.S. 202, 102 S. Ct. 2382 (1982). 166. Papason v. Allain, 478 U.S. 265, 106 S. Ct. 2932 (1986). 167. Kadrmas v. Dickinson Public Schools, 487 U.S. 450, 108 S. Ct. 2481 (1988). 168. Plyler, op. cit. 169. Papason, op. cit. 170. Kadrmas, op. cit. 171. Erwin Chemerinsky op. cit., p. 888. 172. San Antonio Independent School District v. Rodriguez, op. cit., 411 U.S. at 36, 93 S. Ct. at 1298 (1973). 173. Ibid. 174. Kadrmas, op. cit., at Note No. 1 in dissent of Justice Marshall.
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Quoted Box Citations
Lawrence A. Friedman, A History of American Law, Third Edition, (New York: Simon & Schuster, 2005), p. 74. Davis v. Monroe County Board of Education, 526 U.S. 629, 119 S.Ct. 1662 (1999). U.S. Constitution, Amendment XI, Seminole Tribe v. Florida, 517 U.S. 44, 116 S. Ct. 1114 (1996). James Madison, Source: JM to GE (Reverend Eve) January 2, 1789, PJM 11:404, See: Richard Labunski, James Madison and the Struggle for the Bill of Rights (Oxford: Oxford University Press, 2006), p. 164. Immanuel Kant, The Metaphysics of Morals, 1797 (Cambridge: Cambridge University Press, 1993), p. 56. Ira Harvey, A History of Educational Finance in Alabama 1819–1986 (Auburn, Ala.: The Truman Pierce Institute for the Advancement of Teacher Education, Auburn University, 1989), p. 17. Reprinted with permission.
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CHAPTER 4
Governance of Public Schools The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. —Tenth Amendment, 1791 The powers reserved to the several states will extend to all objects, which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvements, and prosperity of the State. —James Madison, The Federalist, No. 45, 2:82 (1788). Today, education is perhaps the most important function of state and local governments . . . It is the very foundation of good citizenship. —Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686 (1954)
CHAPTER OUTLINE ■
INTRODUCTION
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JUDICIAL REVIEW OF SCHOOL BOARD ACTIONS
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PUBLIC REASON AND THE STATE
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AUTHORITY OF INTERSCHOLASTIC ORGANIZATIONS
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EDUCATION AS A STATE FUNCTION
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SCHOOL OFFICERS
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LIMITS OF STATE CONTROL
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SCHOOL ELECTIONS
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STATE AND LOCAL EDUCATIONAL AGENCIES
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SCHOOL BOARD MEETINGS
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LOCAL CONTROL
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OPEN MEETINGS AND PUBLIC RECORDS LAWS
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FUNCTIONS OF EDUCATION AGENCIES
Open Meetings
Delegation of Legislative Powers
Public Records
Administrative or Executive Functions
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SUMMATION OF CASE LAW
Quasi-Judicial Functions
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RESEARCH AIDS
118 Copyright 2010 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.
Education as a State Function
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Introduction
When the U.S. Constitution was promulgated in Philadelphia in 1787, the Founders, by design, omitted the governmental function of education from those aspects of government delegated to the new central government. Obviously, the learned men who debated the features of the new government valued education and recognized its importance to the republican form of government, but they also highly valued state sovereignty and were generally very wary of vesting too much power at the federal level. Indeed, the delegation of education to the central government would have reflected a desire by those state representatives at Philadelphia to fashion a “national” rather than a “federal” government, a motive that was conspicuously absent from the deliberations. Thus, states as sovereign entities, strengthened by the Tenth Amendment, retained the important prerogative to provide, at their discretion, for systems of public instruction. Thus, each of the states, most with varying degrees of enthusiasm and commitment, established and maintained commendable systems of public schools. This chapter outlines and discusses the main legal features that define these systems.
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good. This public reason emanates from the intellectual and moral power that is rooted in the ideals and aspirations of society.3 Thus, public reason to obtain the common good is an attribute of a democratic society, and the creation of public schools is a direct manifestation of that public reason.4 Public reason is the foundation of the state educational systems. According to Rawls,5 public schools are a product of that philosophy in at least three ways: (1) it is the reason of citizens as such, it is the reason of the public (not nonpublic); (2) it is subject to the good of the public and matters of fundamental justice; and (3) it is public in its nature and content, “being given by the ideals and principles expressed by society’s conception of political justice. . . .”6 In the exercise of that public reason, the state creates public schools to ensure fundamental political justice.
EDUCATION AND DEMOCRACY “A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.” —James Madison, Letter to William T. Barry, August 4, 1822
Public Reason and the State
It is through the state and by its governance that the people collectively act for the good of society and themselves. Every state is an association,1 and each is formed to achieve a societal good that is not attainable by individuals acting in their own separate interest. The formation and governance of the public schools constitutes the most important aspect of government used to improve the condition of humankind. The state, as a community, is a form of “unifying relationship between human beings” in which “practical reasonableness” is achieved from collective and cooperative judgment.2 It is surmised that the common good will be best identified and achieved through action of the state in carrying out the will of the people. Public reason requires that public schools be created by political society as the principal vehicle to advance the common
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Education as a State Function
The courts have consistently held that the power over education is an essential attribute of state sovereignty of the same order as the power to tax, to exercise police power, and to provide for the welfare of the citizenry. In the exercise of this pervasive function, states have established systems of public schools that are operated as administrative arms of the state government. The broad power of the state extends to providing for education generally within its boundaries and not merely to the public schools alone. Education, in this broader context, encompasses educational purposes and pursuits of the populace and the schools, both public and private. The interest in an educated citizenry is such an
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important part of state sovereignty that a certain minimal quality of education for all children is required, whether their education is acquired in public or private schools. Court decisions abundantly support the preeminence of the state in control of education. Interestingly, most precedents indicate that the legislature has the prerogative to govern education, when actually education is governed by the democratic legislative process, which requires action by both the legislative and executive branches of government. The legal principles controlling education have been stated many times in different ways by state courts; for example, the legislature has plenary power to set up public schools,7 the maintenance of common schools is a concern of the state and legislature,8 or a uniform system of public schools is exclusively within the province of the legislature. 9 The pervasiveness of this power is adequately illustrated by a Michigan decision, which states that “[t]he legislature has entire control over the schools of the state. . . . The division of the territory of the state into districts, the conduct of the schools, the qualifications of teachers, the subjects to be taught therein, are all within its (the state’s) control.”10 An Ohio court has briefly encapsulated this power as follows: [T]hat the control of schools, be they public or private, providing elementary and secondary education for the youth of Ohio, reposes in the Legislature of our state. When the General Assembly speaks on matters concerning education it is exercising plenary power and its action is subject only to the limitations contained in the Constitution. . . . We can, therefore, indulge in generalities and make a broad statement to the effect that the Legislature of Ohio, in passing laws concerning elementary and secondary schools, is restrained only by its own conscience, [and] fear of the electorate. . . .11
The power of the state to control education has sometimes been characterized as emanating from the state’s police power.12 Although “police power” has not been fully defined by the courts, it is clear that the term encompasses all the elements vested in state sovereignty, including those powers necessary to preserve the peace, morals, good order, and well-being of society.13 It embraces the broad prerogatives of general welfare. The U.S. Supreme Court has said: “The police power of a
state extends to the protection of the lives, limbs, health, comfort, and quiet of all persons, and to the protection of all property, within the state, and hence to the making of all regulations promotive of domestic order, morals, health, and safety.”14 Within this framework is the power of the state to protect the individual and society through provision for a system of education. In holding that education is a state function, the courts maintain that the state’s authority over education is not a distributive one to be exercised by local government, but is a central power residing in the state. The legislature has the prerogative to prescribe the methods of education, and the courts will not intervene unless the legislation is contrary to constitutional provisions.
One rule for the construction of State constitutions, adopted by the courts of all the States, so far as we are informed, and a rule in harmony with the common law, upon which our institutions are founded, is this: “The legislature is supreme, and its acts valid and binding unless they are in express conflict with the constitution of the United States or of the State. Limitations upon the power of the legislature arise either from express words in the constitution or necessary implication.” —Supreme Court of Illinois, 1879
The state legislature has both the power and the responsibility to enact laws to govern education. These laws prescribe the nature and number of local school districts and define their powers. The legislature may, if it so decides, create, alter, or do away with local school districts.15 A Nebraska court has observed: [T]he state may change or repeal all powers of a school district, take without compensation its property, expand or restrict its territorial area, unite the whole or part of it with another subdivision or agency of the state, or destroy the district with or without the consent of the citizens.16
In education, as in all other functions of state government, the state constitution is fundamental and is determinative of the broad scope within which the legislature can operate. The fact that the legislature is created by the state constitution and given lawmaking authority, in
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Education as a State Function
conjunction with the executive branch, is a pervasive and general delegation that is not limited to special conditions or situations. To explain this prerogative, the New York Court of Appeals has said, “The people, in framing the constitution, committed to the legislature the whole law-making power of the state, which they did not expressly or impliedly withhold. Plenary power in the legislature of all purposes of civil government is the rule.”17 Unlike the U.S. Congress, which has only those powers delegated to it by the Constitution, state legislatures have plenary power and may pass any act that is not expressly or impliedly forbidden by the state constitution.18 This legislative power over the control of local school districts does not constitute any sort of a contract in which the local district has any contractual rights or other constitutional rights. This was cleared up by the U.S. Supreme Court in Michigan ex. rel. Kies v. Lowry, where a local school district in Michigan complained that an act of the legislature creating a new school district partially from property of an old district
FIGURE 4.1
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violated the Obligation of Contracts, Article I, Section 10, and the Due Process Clauses of the U.S. Constitution. The Supreme Court found no merit in such an allegation, and quoted with approval the following: Institutions of the kind, whether called counties or towns, are auxiliaries of the state and cannot have the least pretension to sustain their privileges or their existence upon anything like a contract between them and the legislature of the state, because there is not, and cannot be any reciprocity of stipulation, and their objects and duties are utterly incompatible with everything of the nature of compact . . . it is everywhere acknowledged that the legislature possesses the power to divide counties and towns at their pleasure. . . .19
The relationship between the legislature and the local school district is, therefore, unlike the relationship between the U.S. Congress and the state. As explained previously in Chapter 3, the federalism under which we operate is a compact, as prescribed by the U.S. Constitution, which delegates only certain powers to the central government. Unlike state governments, the
State Governance of Education: Basic Points of Authority Legislative Branch Statutory power: Fiscal Substantive
Executive Branch Authority: Regulatory Fiscal Administrative
Judicial Branch Interpretative Authority: Constitutional Law Statutory Law Common Law Regulatory Law
State Education Agency Authority: Regulatory Administrative Quasi-Judicial
Local Education Agency Authority: Regulatory Administrative Quasi-Judicial
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federal government does not have sovereign and inherent police powers to control subordinate state and local governments. On the other hand, state legislatures generally do have sovereign powers to create, dissolve, or alter subordinate local agencies, school districts, municipalities, or counties. According to Edwards, “The legislature must do so much; it may do more.”20
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Limits of State Control
Strictly speaking, the term plenary, meaning complete, absolute, and unqualified, should be used with proper qualification. Even though the courts have frequently used the term in defining the legislature’s prerogative, in actuality, legislative power is subject to definite limits imposed on it by both the federal and state constitutions, as well as by federal statutes—which are supreme and take precedence over state statutes. This limitation must be recognized as of major significance. The term plenary can be a particularly poor choice of words in view of recent trends in which courts have not only invoked the general constitutional restraints of equal protection, liberty, property, and so forth, but also have begun to directly circumscribe legislative action within the limits of education clauses of state constitutions. As indicated earlier in this book, terms such as efficient, thorough, effective, uniform, and system, as used in education clauses, have increasingly been invoked by the courts to strike down statutes governing the financing of public schools. Several recent decisions21 have revitalized the education clauses, and their interpretations may, in the future, represent important precedents and, as a consequence, important limitations on legislative power. William Thro observes that prior to the recent school finance cases, the “education clauses (in state constitutions) were largely useless as tools for school finance reform,” but today’s legislatures are subject to a responsibility to provide for public schools.22 The imposition by the courts of this newly enforced obligation of state legislatures creates an increased standard to which legislative action must adhere. This standard, emanating from more assertive interpretation of education clauses, is seen by some courts as creating
a “duty” that is supreme, preeminent and dominant. Flowing from this constitutionally imposed “duty” is its jural correlative, a correspondent “right” permitting control of another ’s conduct. Therefore, all children residing within the borders of the state possess a “right,” arising from a constitutionally imposed “duty” of the State, that the State make ample provision for their education. Further, since the “duty” is characterized as paramount, the correlative “right” has equal stature. . . . Consequently, all children residing within the State’s borders have a “right” to be amply provided with an education.23
Regulation of Common Schools Is Within the Power of the Legislature
State ex rel. Clark v. Haworth Supreme Court of Indiana, 1890. 122 Ind. 462, 23 N.E. 946.
ELLIOTT, J. . . . It is sufficient, to bring the question clearly enough before the mind for investigation and consideration, to say that the relator petitioned for a writ of mandate to compel the appellee, as school trustee of Monroe township, in the county of Howard, to certify to the county superintendent of schools the number of textbooks required by the children of the township for use in the public schools, and to procure and furnish such books as the law requires . . . Elliott’s Supp. § 1289 (Acts 1889, p. 74). The act assailed does not impinge in the slightest degree upon the right of local self-government. The right of local self-government is an inherent, and not a derivative, one. Individualized, it is the right which a man possesses in virtue of his character as a free man. It is not bestowed by legislatures, nor derived from statutes. But the courts which have carried to its utmost extent the doctrine of local self-government have never so much as intimated that it exists as to a matter over which the constitution has given the lawmaking power supreme control; nor have they gone beyond the line which separates matters of
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Limits of State Control
purely local concern from those of state control. Essentially and intrinsically, the schools in which are educated and trained the children who are to become the rulers of the commonwealth are matters of state, and not of local, jurisdiction. In such matters the state is a unit, and the legislature the source of power. The authority over schools and school affairs is not necessarily a distributive one, to be exercised by local instrumentalities; but, on the contrary, it is a central power, residing in the legislature of the state. It is for the law-making power to determine whether the authority shall be exercised by a state board of education, or distributed to county, township, or city organizations throughout the state. With that determination the judiciary can no more rightfully interfere than can the legislature with a decree or judgment pronounced by a judicial tribunal. The decision is as conclusive and inviolable in the one case as in the other; and an interference with the legislative judgment would be a breach of the constitution which no principle would justify, nor any precedent excuse. . . . Judge Cooley has examined the question with care, and discussed it with ability; and he declares that the legislature has plenary power over the subject of the public schools. He says, in the course of his discussion, that “to what degree the legislature shall provide for the education of the people at the cost of the state, or of its municipalities, is a question which, except as regulated by the constitution, addresses itself to the legislative judgment exclusively.” Again, he says, “The governing school boards derive all their authority from the statute, and can exercise no powers except those expressly granted, and those which result by necessary implication from the grant.” . . . No case has been cited by counsel, and none has been discovered by us, . . . which denies the doctrine that the regulation of the public schools is a state matter, exclusively within the dominion of the legislature. . . . As the power over schools is a legislative one, it is not exhausted by exercise. The legislature, having tried one plan, is not precluded from trying another. It has a choice of methods, and may change its plans as often as it deems necessary or expedient; and for mistakes or abuses it is answerable to the people, but not to the courts. It is clear, therefore, that, even if
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it were true that the legislature had uniformly entrusted the management of school affairs to local organizations, it would not authorize the conclusion that it might not change the system. To deny the power to change is to affirm that progress is impossible, and that we must move forever “in the dim footsteps of antiquity.” . . . All the public schools have been established under legislative enactments, and all rules and regulations have been made pursuant to statutory authority. Every school that has been established owes its existence to legislation, and every school officer owes his authority to the statute. It is impossible to conceive of the existence of a uniform system of common schools without power lodged somewhere to make it uniform; and, even in the absence of express constitutional provisions, that power must necessarily reside in the legislature. If it does reside there, then that body must have, as an incident of the principal power, the authority to prescribe the course of study, and the system of instruction, that shall be pursued and adopted, as well as the books which shall be used. Having this authority, the legislature may not only prescribe regulations for using such books, but it may also declare how the books shall be obtained and distributed. If it may do this, then it may provide that they shall be obtained through the medium of a contract awarded to the best or lowest bidder, since, if it be true, as it unquestionably is, that the power is legislative, it must also be true that the legislature has an unrestricted discretion, and an unfettered choice of methods. It cannot be possible that the courts can interfere with this legislative power, and adjudge that the legislature shall not adopt this method or that method; for, if the question is at all legislative, it is so in its whole length and breadth. . . . Either the state has power to regulate and control the schools it owns, or it has not. That it does not have the power, we venture to say, no one will affirm. If it does have the power, it must reside in the law-making department, for it is impossible for it to exist elsewhere. If the power does reside in the law-making department, then that department must exercise its discretion and adopt such measures as it deems best; and, if the measures adopted lead to the exclusion of some book-owners, it is an incident
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that no ingenuity can escape, nor any system avoid. The denial of the right to select the books is the denial of the right of regulation and control, and we cannot conceive it possible to deny this right. If the right of regulation and control exists, then the fact that the exercise of the right does not exclude some publisher is an inseparable and unavoidable condition of the exercise of the right. Without it, the right is annihilated. If a clear and manifest legislative right cannot be exercised without conferring privileges in the nature of a monopoly, then, as the authorities all agree, a monopoly may be created; for a denial of the right will not be suffered. . . . All that is here done is to provide that the person who receives, after fair and open competition, the contract for supplying books to the school children, shall enjoy an exclusive privilege for the period prescribed by the statute. Judge Cooley says that “it is held competent for the state to contract with a publisher to supply all the schools of the state with textbooks of a uniform character and price.” . . . Judgment reversed, with instructions to proceed in accordance with this opinion. . . .
3. The Tennessee Supreme Court explained the role of the legislature in exercising police power over public education: We are of the opinion that the legislature, under the constitutional provision, may as well establish a uniform system of schools and a uniform administration of them, as it may establish a uniform system of criminal laws and of courts to execute them. The object of the criminal laws is, by punishment, to deter others from the commission of crimes, and thus preserve the peace, morals, good order and well-being of society; and the object of the publicschool system is to prevent crime, by educating the people, and thus, by providing and securing a higher state of intelligence and morals, conserve the peace, good order, and well-being of society. The prevention of crime, and preservation of good order and peace, is the highest exercise of the police power of the state, whether done by punishing offenders or educating the children. Keeper v. State, 103 Tenn. 500, 53 S.W. 962 (1899).
4. The U.S. Supreme Court has expressly declined to define the limits of the police power of state legislatures, Stone v. Mississippi, 101 U.S. 814, 25 L. Ed. 1079 (1879). In Mayor v. Miln, [36 U.S. 102,] 11 Pet. 139, 9 L. Ed. 648 (1835), the Court said:
CASE NOTES 1. The broad extent of legislative power over local school districts is shown in a statement by a Texas court: The Legislature has the power to create school districts at will without any kind of notice. It also has the power to change the boundaries of or to abolish school districts, to consolidate them, to group them for high school purposes, to annex school districts to other school districts and to provide the mode and agencies for effecting such action. Neill v. Cook, 365 S.W.2d 824 (Tex. 1963).
2. The Supreme Court of New York, in Cohen v. State, 52 Misc. 2d 324, 275 N.Y.S.2d 719 (1966), held that the requirement of the New York Constitution stating that “the legislature shall provide for the maintenance and support of a system of free common schools, wherein all the children of this state may be educated” gave the legislature power to govern the educational system of the state. Such power allows the legislature to create school districts and to establish different types and structures of school boards to govern and regulate the local school districts.
It embraces every law which concerns the welfare of the whole people, of the state or any individual within it, whether it relates to their rights or duties, whether it respects them as men or citizens of the state, whether in their public or private relations, whether it relates to the rights of persons or property of the whole people of the state or of any individual within it.
5. In Railroad Co. v. Husen, 95 U.S. 465, (1877), the Supreme Court said: “The police power of a state extends to the protection of the lives, limbs, health, comfort, and quiet of all persons, and to the protection of all property, within the state, and hence to the making of all regulations promotive of domestic order, morals, health, and safety.” 6. Where the legislature empowers local school boards to perform certain functions, the courts will not interfere with the exercise of those powers unless the school board’s actions are found to be “palpably arbitrary, unreasonable or capricious.” Tyska By Tyska v. Board of Education of Township High School District 214, Cook County, 117 Ill. App.3d 917, 73 Ill. Dec. 209, 453 N.E.2d 1344 (1983).
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State and Local Educational Agencies
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State and Local Educational Agencies
All states and the federal government have networks of administrative agencies (usually called boards, commissions, bureaus, or offices) that have been created to implement and administer statutes. State legislatures and the U.S. Congress have not seen fit historically to actually administer legislative enactments themselves, even though the legislative branch could conceivably assume the role of program administration. Traditionally, the view has been that the legislature should not perform the multiple duties of enacting legislation, appropriating funds, and then administering the funds, thereby invading the gray area of executive responsibility. In education, for example, it would be tedious and legislatively cumbersome for a state legislature to attempt to establish by statute the rules and regulations governing specific certification requirements for teachers. In this regard, an Illinois court has said that the delegation of public school responsibilities from the general assembly to subordinate agencies— duly elected school boards—is of practical necessity because the legislature could not itself conveniently or efficiently attend to the details of establishing, maintaining, and operating the public schools.24 Jaffe has suggested the reasoning for such delegation of regulatory power by saying: “Power should be delegated where there is agreement that a task must be performed and it cannot be effectively performed by the legislature without the assistance of a delegate or without an expenditure of time so great as to lead to the neglect of equally important business.”25 The result has been for the state legislature to create agencies that handle the administrative functions necessary to implement legislation properly. In most states, this delegation by the legislature manifests itself in a state board of education, which may be either elected or appointed and has authority to perform administrative and supervisory functions. An alternative to this approach is to vest officials of the executive branch with regulatory and attendant authority to administer the school system of the state; such officers are generally referred to as chief state school officers. Legislatures may also delegate powers to local school districts.
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It is well established that the local school district is a state agency that simply operates at the local level. The Michigan Supreme Court has said the school district is a legislative creation. It is true that it was provided for in obedience to a constitutional requirement; and whatever we may think . . . we cannot doubt that such management must be in conformity to the provisions of such laws of a general character as may from time to time be passed, and that the property of the district is in no sense private property, but is public property devoted to the purposes of the state for the general good, just as almshouses and courthouses are, although confined to local management, and applied to uses which are in a sense local, though in another sense general.26
Another Michigan decision described the legal relationship between the state and local school districts in this way: Fundamentally, provision for and control of our public school system is a state matter, delegated and lodged in the state legislature by the Constitution in a separate article entirely distinct from that relating to local government. The general policy of the state has been to retain control of its school system, to be administered throughout the state under state laws by local state agencies organized with plenary powers independent of the local government with which, by location and geographical boundaries, they are necessarily closely associated and to a greater or lesser extent authorized to cooperate. “Education belongs to the state.”27
Because local school boards are state bodies, it follows that school board members are state, not local, officials.28 Local school boards are vested with a portion of the sovereignty of the state through delegation, by which they acquire certain administrative functions having attributes of all three branches of government: executive, quasi-judicial, and regulatory (or quasilegislative). As creatures of the legislature or constitution, local school districts abide within their legal prerogatives and cannot give away or redelegate their judgmental powers to other agencies or individuals. The courts commonly divide the administrative functions of the local school board into two categories: discretionary and ministerial. The meaning of discretionary powers here is those acts that require judgment on the part of the board. Examples of such responsibilities could be the
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location of a school building site, the employment of a particular teacher, or the purchase of a certain type of school bus. The greatest portion of a board’s powers may be classified as discretionary. In exercising these discretionary powers, a board of education is limited only by the requirements and restrictions of the law. As has been pointed out in the case of state educational agencies, the courts will not interfere with a board’s exercise of discretion even though the judgment is unwise except where the board’s action violates the law, abuses authority, or is ultra vires. The operation of school districts is based upon the express or implied authority of statute. The courts, in circumscribing the authority of school boards from statutory implication, have held that in the absence of statute, travel expenses can be paid for the recruitment of teachers outside the state;29 a school district can establish a cafeteria;30 and a school board can establish a school health inspection department made up of doctors, dentists, and nurses.31 On the other hand, authority has been denied for a school district to pay for surgical and dental operations for pupils,32 for medical care for pupils injured in athletic contests,33 and for purchases of basketball uniforms to be used on land not under school control.34
School Districts Can Exercise Only Those Powers Fairly Implied or Expressly Granted by Statute
McGilvra v. Seattle School District No. 1 Supreme Court of Washington, 1921. 113 Wash. 619, 194 P. 817.
PARKER, J. The plaintiffs, McGilvra and others, residents and taxpayers of Seattle School District No. 1, of King County, suing for themselves and in behalf of all others similarly situated, commenced this action in the superior court for that county, seeking an injunction to restrain the school district and its officers from maintaining in one of its school buildings and expending funds of the
school district for the maintenance therein of a so-called clinic, which, as we proceed we think it will appear would be more properly designated as a “hospital,” for the medical, surgical, and dental treatment of the physical ailments of pupils of the schools of the district, whose parents or guardians are financially unable to furnish such treatment. Trial in the superior court upon the merits resulted in findings and judgment denying the relief prayed for, from which the plaintiffs have appealed to this court. . . . The question to be here answered is: Have the school district and its officers legal authority for so furnishing the use of, and equipping rooms in its buildings and the maintenance therein of such clinic, by the expenditure of the taxpayers’ funds collected and placed at their disposal, for the sole purpose of maintaining the public schools of the district? At the outset let us be reminded in the language of Judge Dillon, in his work on Municipal Corporations, quoted with approval by this court in State ex rel. Winsor v. Mayor and Council, 10 Wash. 4, 37 Pac. 761, that [i]t is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the declared objects and purposes of the corporation— not simply convenient but indispensable. Any fair or reasonable doubt concerning the existence of power is resolved by the courts against the corporation, and the power is denied.
This view of the law is of added weight when applied to school districts, because they are municipal corporations with powers of a much more limited character than are cities, or towns, or even than counties. . . . We are quite unable to find in . . . statutory provisions any power given to the school district officers, other than the power to cause inspection of the buildings and premises of the district to be made with a view to making them sanitary and healthful, and to cause inspection of persons with a view to the exclusion from the school premises of all persons afflicted with contagious diseases, to the end that such diseases shall not obtain a foothold among the pupils and other persons whose duties require them to be upon the school premises.
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State and Local Educational Agencies
Counsel for the school district officers call our attention to, and rely upon, our decision in State ex rel. School District No. 56 v. Superior Court, 69 Wash. 189, 124 Pac. 484, and Sorenson v. Perkins & Co., 72 Wash. 16, 129 Pac. 577, commonly known as the “playground” and “gymnasium” cases, wherein it was held that a school district has the power to acquire, by expenditure of the funds of the district, additional land for playgrounds for the pupils, and also at the expense of the district to construct and equip gymnasiums. We do not think these cases are of any controlling force touching the present inquiry. Playgrounds in connection with public schools have for generations been so common that it must be presumed that the Legislature by giving the general power to maintain public schools incidentally intended to also give the authority to provide such playgrounds in connection therewith; and, while gymnasiums in connection with public schools have not been so common, the work and exercise of the students carried on therein is manifestly so intimately connected with the education of the pupil as to warrant the assumption that the Legislature intended the school districts and their officers to possess the power of providing the same as a proper public school equipment. The rendering of medical, surgical, and dental services to the pupils, however, is, and always has been, we think, so foreign to the powers to be exercised by a school district or its officers, that such power cannot be held to exist in the absence of express legislative language so providing. . . . The specific legislative enumeration of these powers which it seems could with much sounder reason be considered as implied powers in the absence of express language in the statute than the claimed powers here in question, argues, in the light of well-settled rules of statutory construction, that the Legislature has not intended that here should be an exercise of such claimed powers. We see no argument lending any substantial support, in a legal way, to the view that a school district and its officers possess the powers they are seeking to exercise and threatening to continue to exercise. There is much in the argument of counsel for the school officers which might be considered as lending support to the view that such powers ought to be possessed by the school district and its officers, and it is probable that counsel has many well meaning people
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upon his side of that question. The Legislature may give heed to such arguments, but the courts cannot do so. The judgment of the trial court is reversed, and the case remanded to that court, with directions to render a judgment enjoining the school district and its officers from furnishing or equipping upon the school premises, or elsewhere, appliances for the medical, surgical, or dental treatment of the physical ailments of the pupils of the schools at the expense of the district, and from employing physicians, dentists, or nurses for the rendering of such medical, surgical, or dental treatment; it being understood, however, that such injunction shall not restrain the school district or its officers from the doing of these things at the expense of the district in connection with, and as may be necessary in, the maintenance of the parental schools of the district and the proper care of the pupils committed to such schools.
School District Exceeded Its Statutory Authority in Operating a Virtual Charter Academy Program for Students Beyond School District Geographical Borders
Johnson v. Burmaster Court of Appeals of Wisconsin, 2007 307 Wis.2d 213, 744 N.W.2d 900. Rev.den. 308 Wis.2d 619, 749 N.W.2d 662 (Sup.Ct.Wis. 2008).
BROWN, C. J. Wisconsin Virtual Academy (WIVA) is a charter school established by the Northern Ozaukee School District. Though WIVA’s administrative offices are within district boundaries in Fredonia, it serves pupils across the state by providing curricular materials to them in their homes via [I]nternet and mail. WIVA employs several certified teachers who also live throughout the state and have email, telephone and some [I]nternetbased contact with the pupils. However, primary day-to-day responsibility for implementing the pupils’ education resides with the pupils’ parents. The great bulk of WIVA’s funding comes
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from open-enrollment transfer payments to the District from the pupils’ home districts. This appeal calls on us to determine whether the District’s operation of WIVA comports with Wisconsin’s charter school, open-enrollment, and teacher licensing statutes. The relevant provisions of these statutes prohibit a school district from operating a charter school located outside the district, require that open-enrollment students attend a school in the district, and require that teachers in all public schools, including charter schools, be state-certified. For each statute, the District presents a creative reading allowing WIVA to continue its present operations, but our job is not to bend the statutory framework to fit WIVA. If, as its proponents claim (and its opponents dispute), WIVA has hit upon a bold new educational model that educates pupils in a way equal to traditional school at a fraction of the cost, then the legislature may well choose to change the law to accommodate WIVA and other schools like it. However, as the law presently stands, the charter school, open-enrollment, and teacher certification statutes are clear and unambiguous, and the District is not in compliance with any of them. We reverse the circuit court’s grant of summary judgment and instead direct that summary judgment be granted to the plaintiffs. The essential facts are undisputed. In 2003, the District contracted with K12 Inc., a Delaware corporation, to provide a curriculum for its new virtual charter school, WIVA. K12 sends books and other materials to the students, and also provides curricular materials via the internet (it also provides loaned computers). The WIVA students, under the direction of their parents, study the materials and complete various assignments to demonstrate their understanding. The parents are provided with instructor’s materials to assist the student’s learning. The parents check the students’ work on their assignments to determine whether the students have mastered the topic. A parent is required to devote four to five hours per day to the student’s education. The overwhelming majority of WIVA’s 619 students (as of December 2004) live and study outside the District. The open-enrollment payments transferred from these students’ home districts cover the District’s costs to operate WIVA and provide the district with an “oversight fee.” The remaining revenue is paid to K12.
WIVA’s principal, vice-principal, and other administrators work at the District’s office in Fredonia. WIVA’s certified teachers are employees of the District, but they work from their homes across the state. They review samples of students’ work to assess progress, and hold one to two twenty- to thirty-minute telephone conferences per month with each student and parent, during which they discuss and assess student progress. They correspond with students via email, and respond to parental requests for assistance via email and telephone. Certified teachers also conduct thirty- to forty-minute interactive online classes using online conferencing software; students participate in such classes two to four times per month. In January 2004, individual citizens and the Wisconsin Education Association Council (collectively “WEAC”) filed suit against the District, its officials and school board, and K12 (collectively “the District”), along with State Superintendent of Public Instruction Elizabeth Burmaster. WEAC claimed that the District’s operation of WIVA violated the open-enrollment, charter school, and teacher licensing statutes. Though formally a defendant, Burmaster has adopted WEAC’s position on the teacher licensing statute and takes no position on the other two claims. . . . In March 2006, the circuit court granted summary judgment to the District on all claims. . . . For the reasons that follow, we now reverse the circuit court’s grant of summary judgment to the District, and direct that it grant summary judgment to Burmaster and WEAC. . . . This case calls on us to interpret three statutory provisions. . . . Burmaster and the District each advance legislative history arguments based primarily on various bills that never became law. Even if these bill histories were probative of legislative intent, we would not consider them because we conclude below that each of the statutory provisions at issue has a plain and unambiguous meaning. We first consider whether the District has complied with WIS. STAT. § 118.40(3)(c), which states that “[a] school board may not enter into a contract for the establishment of a charter school located outside the school district.” . . . The circuit court held that WIVA is located at the address of its administrative offices.
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State and Local Educational Agencies
This view has the virtue of simplicity, but we cannot adopt it because it ignores the plain language of the statute. WISCONSIN STAT. § 118.40(3)(c) restricts the location of a “charter school” to the boundaries of the establishing district. Surely, the administration of a school is a part of that school, and so we have no problem agreeing that part of WIVA is “located” in Fredonia where the principal, vice-principal, and secretary work. But to agree with the circuit court’s conclusion and hold WIVA in compliance with § 118.40(3)(c), we would have to accept that a school consists only of its administrators and that where the teachers teach and the students learn has nothing to do with where the school is “located.” We cannot believe that the plain and ordinary meaning of the statutory term “school” excludes both teachers and students. The large majority of WIVA students receive their educations at locations outside of the district, from teachers working at locations outside of the district. The conclusion is inescapable that WIVA is located, in part, outside of the district. . . . Nor is it reasonable to say that WIVA exists only in cyberspace or make the related claim that “geography-based conceptions” like “location” have been rendered meaningless. First, as a matter of law, “located” is a statutory term, and we may not lightly nullify it. Second, as a matter of common sense, the rise of the [I]nternet notwithstanding, “location” remains a meaningful and often indispensable concept, particularly when it comes to the relationships between governmental units. The Northern Ozaukee School District has boundaries. WIVA’s students are educated by WIVA’s teachers outside of them. WIVA is thus in violation of WIS. STAT. § 118.40(3)(c). We next consider WIS. STAT. § 118.51, the fulltime open-enrollment statute. It allows a pupil to attend a public school outside his or her home district, and sets forth the procedures the pupil and the sending and receiving district (“resident” and “nonresident” school district) must follow . . . , including a shift in funding from the resident school district to the Northern Ozaukee School District. The disagreement boils down to whether a WIVA pupil “attends school” in the District. . . . We have already explained that WIVA is, in part, located outside the district, and so it is of no import whether the statute requires a student
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to be in the district attending school or merely to attend a school that is in the district. WIVA’s nonresident pupils attend school outside the district. They also attend a school outside the district. . . . The final question we must answer is whether WIVA violates Wisconsin’s teacher licensure requirement. Burmaster and WEAC contend that WIVA’s parents serve as the school’s teachers and that because they are not licensed by the Department of Public Instruction (DPI), WIVA violates WIS. STAT. § 118.19(1), which requires that “[a]ny person seeking to teach in a public school, including a charter school . . . shall first procure a license or permit from the department.” . . . “Teaching” means improving pupil learning by planning instruction, diagnosing learning needs, prescribing content delivery through classroom activities, assessing student learning, reporting outcomes to administrators and parents and evaluating the effects of instruction. . . . The differences between the parties’ descriptions of a WIVA parent’s role are of emphasis rather than substance. The District has nowhere disputed that a parent works one-on-one with a pupil, presenting the lesson, answering questions, and assessing progress. Instead, it simply highlights other parental tasks. Even accepting the District’s description of the parent’s role (which, again, is not necessarily inconsistent with the description proffered by WEAC and Burmaster), we have no difficulty concluding that the activities of the WIVA parents fall within the DPI definition (or any reasonable definition) of “teaching.” Indeed, we have a difficult time understanding what else it could mean to say that a WIVA parent is responsible for “continuous progress through the curriculum.” . . . The District points to teacher aides, parent volunteers, guest speakers, and others who may perform some of the same “teaching” functions in the public schools that parents do in WIVA. The District proposes that there is no reasonable distinction between WIVA and a more traditional public school in which unlicensed individuals play a role in the teaching of students. We wish to emphasize that the issue in this case is not simply what the parents do, but what the school requires them to do in order for the school to function. We underscore that no one is suggesting that a parent assisting his or her child to whatever extent the parent finds necessary is
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“illegal.” The question is not whether and how a parent may assist his or her child with schoolwork; rather, it is whether the District can establish a public school, using . . . public funds, that relies upon unlicensed individuals as the primary teachers of the pupils. The problem is not that the unlicensed WIVA parents teach their children, but that they “teach in a public school.” . . . WIVA may be, as its proponents claim, a godsend for children who would not succeed in more traditional public schools, as well as welcome a new option for parents who want their children to receive a home-based education for any number of reasons. But it is also a public school operated with state funds, and its operation violates the statutes as they now stand. It is for the citizens of this state, through their elected representatives in the legislature, to decide whether and how their tax money is going to be spent. If the citizenry wants tax money spent on virtual schools like WIVA, that is fine. Let the citizens debate it and set the parameters, not the courts. . . . We conclude that the plaintiffs are entitled to summary judgment. On remand, we direct that the circuit court enter a declaratory ruling that the District and K12 are in violation of WIS. STAT. §§ 118.19, 118.40 and 118.51, and enjoin the DPI from making pupil transfer payments based upon nonresident students enrolled in WIVA. Order reversed and cause remanded with directions.
CASE NOTE Boards of education are creatures of statute and, as such, have only those powers that are expressly granted by statute or are necessarily implied therefrom. Schwing v. McClure, 120 Ohio St. 335, 166 N.E. 230 (1929); see also Tax Deferred Annuities Corp. v. Cleveland Board of Education, 24 Ohio App. 3d 105, 493 N.E.2d 305 (1985).
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Local Control
Local control of education is an ideal that is highly valued by most Americans. However, as discussed previously, most state constitutions center the authority for the provision of education in the state legislature. As such, the state legislature has the authority, obligation, and
positive duty to provide for a system of public schools in accordance with the mandates of the constitution. However, in several states the constitutional mandates include specific reference to local supervision, control, operation, or maintenance of the public schools. The balance between state and local control can therefore be found in the exact wording of the state constitution. Thus, the state control may not be plenary if the people in their constitution have chosen to delegate education authority to the locality. Six states have such constitutional language which mitigates state control in favor of local decision making. 1. Colorado. Colo. Const. Art. IX, § 15 mandates the creation of school districts with “three or more directors to be elected by the qualified electors of the district. Said directors shall have control of instruction in the public schools of their respective districts.” 2. Florida. Fla. Const. Art. IX, § 4 provides that local school boards “shall operate, control and supervise” district schools. 3. Georgia. Ga. Const. Art. VIII, § 5 vests local boards with authority to “establish and maintain” district schools. 4. Kansas. Kan. Const. Art VI, § 5 provides that local public schools “shall be maintained, developed and operated by locally elected boards.” 5. Montana. Mont. Const. Art. X, § 8 vests “supervision and control of schools” in local boards. 6. Virginia. Va. Const. Art. VIII, § 7 delegates the “supervision of schools” to local school boards. Among these states, Colorado courts have probably been most diligent in upholding local control. For example, in Booth,35 the Colorado Supreme Court held that the state’s constitutional language required that there be a balance between state and local control. The balance that is to be maintained must not have the effect of usurping the local board’s decision-making authority to implement, guide, or manage educational programs. The balance that the Colorado Supreme Court requires in Booth is to vest “general control” in the state and specific control of instruction in local boards. In keeping with this balance the Colorado Court also ruled in Lujan36
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Local Control
that the statewide system of school finance was designed to preserve local control over locally raised revenues. Thus, the idea of local control in Colorado creates a balance whereby instructional decisions and use of local funds are set out as local prerogatives. This concept of local control was also the basis for a Colorado Supreme Court decision in Owens in 2004, wherein the court invalidated a state voucher scheme that would have diverted local funds to private schools.37 Owens is set forth below.
Vouchers Providing Parental Choice and Funds for Private Schools Violate Local Control Provision in State Constitution
Owens v. Colorado Congress of Parents, Teachers and Students Supreme Court of Colorado, 2004. 92 P. 3d 933.
Justice BENDER delivered the Opinion of the Court. In this case, we consider whether the Colorado Opportunity Contract Pilot Program . . . violates the local control provisions of article IX, section 15 of the Colorado Constitution. The program was challenged in the district court by eight parents on behalf of their children as well as several concerned individuals and institutions (collectively “plaintiffs”). They are supported on this appeal by the Colorado Association of School Boards as amicus curiae. The program was defended by Bill Owens in his official capacity as Governor and twelve parents who intervened because they wanted their children to participate in the program (collectively “defendants”). The trial court found the Pilot Program interferes with the local school districts’ discretion to allocate their funding, and therefore violates the local control requirement of article IX, section 15. The trial court also concluded that it could not interpret the program in a constitutional manner without effectively reading section 15 out
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of the constitution. Accordingly, the trial court concluded that the program was unconstitutional beyond a reasonable doubt. The defendants appeal to this Court, arguing that the General Assembly has plenary authority to guide and implement educational policy. Pursuant to this authority, the General Assembly has determined that the Pilot Program best serves the needs of children who “simply are not succeeding in the traditional school district setting.” The defendants contend that the local control provisions of article IX, section 15 do not place any impediment in the way of the General Assembly’s power to enact the Pilot Program. First, the defendants argue that the program does not disturb the districts’ authority over instruction in any way because students who participate in the program leave the district. Thus, the district retains control over instruction of those students who remain in the district. Our task is to assess the constitutionality of the Pilot Program. . . . Through article IX, section 15, the framers created a representative body to govern instruction in the public schools. The qualified electors of each district elect local school boards, who in turn “shall have control of instruction in the public schools of their respective districts.” Beginning with Belier v. Wilson, this Court has consistently construed this provision to mean that local school districts must retain control over any instruction paid for with locally raised funds. . . . Without control over locally raised funds, the representative body mandated by our state constitution loses any power over the management of public education. Given the mandates of article IX, section 15, we hold that the Pilot Program violates the local control requirements of our state constitution because it directs the school districts to turn over a portion of their locally raised funds to nonpublic schools over whose instruction the districts have no control. Irrespective of the fact that the goals of the program and the policy considerations underlying it are laudable, we see no way to reconcile the structure of the program with the requirements of the Colorado Constitution. To hold otherwise would render the local control provisions of article IX, section 15 meaningless. Accordingly, we affirm the judgment of the trial court.
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The Colorado Opportunity Contract Pilot Program is designed to meet the “educational needs of high-poverty, low-achieving children in [Colorado’s] highest-poverty public schools,” 7A C. R. S. (2003). Participation in the program is mandatory for any school district that, “for the 2001–02 school year, had at least eight schools that received an academic performance rating of ‘low’ or ‘unsatisfactory,’ and which . . . continues to operate said schools in the 2003–04 school year.”. . . The program is available to low-income, lowachieving children who attend public school in a participating school district. Only those children who are eligible to receive free or low-cost lunch under the National School Lunch Act may participate. Academic criteria vary according to the child’s age. . . . If a child is eligible to participate in the program and has been accepted by a qualified nonpublic school, the child’s parents may enter into a contract with the school district in which the child is enrolled. The school district is then required to make four assistance payments to the parents, who in turn must endorse the check “for the sole use of the participating nonpublic school.” The school district is required to pay the lesser of “the participating nonpublic school’s actual educational cost per pupil,” or a percentage of the school district’s per pupil operating revenues. . . . The plaintiffs challenged the program on several grounds, including that the program . . . violates the local control provisions of article IX, section 15 of the Colorado Constitution. The plaintiffs moved for judgment on the pleadings . . . and, in response, the defendants moved for partial summary judgment dismissing these issues. . . . Article IX, section 15 mandates the creation of school districts and provides a broad sketch of the districts’ powers: The general assembly shall, by law, provide for organization of school districts of convenient size, in each of which shall be established a board of education, to consist of three or more directors to be elected by the qualified electors of the district. Said directors shall have control of instruction in the public schools of their respective districts.
... Our review of the history of article IX, section 15 and our case law construing it leads us to
conclude that to accept [defendants’] arguments would effectively delete the local control requirement from our state constitution. Because we see no way to reconcile the requirements of section 15 with the Pilot Program as it is currently enacted, we hold that the program is unconstitutional beyond a reasonable doubt. The principle of local control has deep roots in Colorado’s constitutional history. The Colorado Constitution was adopted in 1876 in an atmosphere of deep distrust of centralized authority. . . . The document ultimately adopted was designed to “protect citizens from legislative misbehavior,” and thus, while the delegates recognized that a legislature must inevitably be created, they “assiduously wrote provisions that took away much of [the General Assembly’s] discretionary authority.” The provisions governing education reflect the delegates’ ambivalence about legislative power. Article IX, section 2 empowers the General Assembly to create and maintain a public school system: The general assembly shall, as soon as practicable, provide for the establishment and maintenance of a thorough and uniform system of free public schools throughout the state, wherein all residents of the state, between the ages of six and twenty-one years, may be educated gratuitously.
Article IX, section 15 then provides that control over instruction in the public schools shall devolve to local school boards, whose members are elected by the residents of the school districts: The general assembly shall, by law, provide for organization of school districts of convenient size, in each of which shall be established a board of education, to consist of three or more directors to be elected by the qualified electors of the district. Said directors shall have control of instruction in the public schools of their respective districts. . . . With the adoption of article IX, Colorado became one of only six states with an express constitutional local control requirement. See Booth, 984 P. 2d at 646. In that provision, the framers made the choice to place control “as near the people as possible” by creating a representative government in miniature to govern instruction. And since its adoption, this Court has consistently emphasized the importance of local control to the state’s educational system. . . .
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Functions of Education Agencies
The question in this case is whether the Pilot Program satisfies the mandates of the local control requirement of article IX, section 15 and whether the Pilot Program fits within those parameters. To answer that question, we now examine the program itself, and our analysis is guided by the language of article IX, section 15 and our case law, cited above, construing that provision. The defendants argue that nothing in the language of article IX, section 15 ties control over instruction to authority to disburse locally raised funds. In their view, local control means control over instruction per se, and does not implicate funding in any way. This argument simply ignores nearly one hundred years of this Court’s precedent clearly linking control over instruction to discretion to spend locally raised funds. Local authority over locally raised funds preserves the representative body created by section 15 and gives substance to the constitutional requirement that local boards “shall have control of instruction in the public schools of their respective districts.” The Pilot Program violates these principles by requiring the school districts to pay funds— including those derived from locally raised tax revenues—to parents, who in turn are required to pay those funds to nonpublic schools. By denying local districts discretion to allocate their locally raised funds, the program not only violates the clear mandates of our cases construing article IX, section 15, but also undermines the basic rationale of our state-wide school finance system: effectuating local control over public schools. Thus, . . . we hold that control over locally raised funds is essential to effectuating local control of instruction, and the Pilot Program violates this requirement by stripping local districts of any discretion over the character of instruction participating students will receive at district expense. . . . At base, the defendants argue that the public schools have failed, and the General Assembly should have the power to address that failure through programs such as the Pilot Program. Thus, the defendants contend, the General Assembly has reasonably chosen to confer power over instruction directly upon the parents of public school children and allow them to choose to send their children to private school.
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Our task is not to pass judgment on the wisdom of the General Assembly’s policy choices. Rather, it is solely to determine whether those policy choices comport with constitutional requirements. Our analysis of article IX, section 15 reveals that the framers sought to empower the electors in each school district, including the parents of public school students, with control over instruction through the creation of local school boards which would represent the will of their electorate. If the General Assembly wants to change this fundamental structure, it must either seek to amend the constitution or enact legislation that satisfies the mandates of the Colorado Constitution. We hold that the Pilot Program as enacted by the General Assembly conflicts clearly and irreconcilably with the Colorado Constitution, and the plaintiffs have met their burden of proving the program is unconstitutional beyond a reasonable doubt. For the reasons given above, we hold that the Colorado Opportunity Contract Pilot Program violates the local control provisions of article IX, section 15 of the Colorado Constitution. Accordingly, we affirm the judgment of the trial court and return the case to that court for further proceedings consistent with this opinion.
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Functions of Education Agencies
Functions of public agencies can generally be classified as (1) legislative, (2) executive, and (3) judicial (or quasi-judicial). As agencies of government, both state and local educational authorities have these basic powers. Administration encompasses the rule-making and adjudication processes and incidental powers, such as coordinating, supervising, investigating, prosecuting, advising, and declaring.38 The exercise of administrative functions may be reviewed by the courts to determine if duties have been carried forth within the scope of law and whether proper procedures have been followed.
DELEGATION OF LEGISLATIVE POWERS Legislative functions of the state agency include the promulgation of rules and regulations made pursuant to and within the scope of statute.
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The legislative functions performed by state agencies have been justified on the grounds that the agency was merely “filling in the details” within the meaning of general statute.39 In the public interest, it is said the state agency should not have legislative powers, because agency officials are not direct representatives of the people with constitutionally sanctioned lawmaking prerogative. This is a basic tenet of representative government recognized early by John Locke. In his treatises on civil government, he said: The legislature cannot transfer the power of making laws to any other hands, for it being but a delegated power from the people, they who have it cannot pass it over to others. . . . [N]obody else can say other men shall make laws for them; nor can they be bound by any laws but such as are enacted by those whom they have chosen and authorized to make laws for them.40
Exclusive powers of the legislature should not therefore be delegated to subordinate agencies. In clarification of this theory of government, a Michigan court has said: This is not to say, however, that a subordinate body or official may not be clothed with authority to say when the law shall operate, or to whom, or upon what occasion, provided, however, that the standards prescribed for guidance are as reasonably precise as the subject matter requires or permits.41
Davis maintains, though, that formulations by state courts that attempt to circumscribe the legislative function of subordinate agencies are largely without substance.42 Although generally it appears that most courts seek to restrain too broad a delegation in order to prevent arbitrary use of uncontrolled power by subordinate officials, the actual legal theory and its implementation by the courts is sometimes difficult to follow. Basically, the theory of delegation appears to have been justified on the grounds of “adequacy of standards.” Does the statute provide sufficient delineation of the particular requirement or prohibition so that in light of the surrounding facts and circumstances the agency can ascertain, interpret, and implement the true purpose of the act? The legislature must prescribe a “reasonably adequate standard.”43 Some courts maintain that “definite standards are indispensable, not only to avoid a delegation of the essential legislative power, but to guard against an arbitrary use of the delegated
administrative authority.”44 Limitations on legislative delegation to subordinate agencies may have been best described by a Washington court that said: The legislature may delegate these legislative controls to an administrative agency of the state; provided, in so doing, it defines what is to be done; the instrumentality which is to accomplish it; and the scope of the instrumentality’s authority in so doing, by prescribing reasonable administrative standards.45
This statement probably represents the prevailing view of the courts, but the doctrine of delegation is one that must be treated as highly flexible. Courts, for example, tend to restrict agency prerogatives in the area of taxation, property rights, or individual civil rights. On the other hand, state educational agencies may have broad latitude in dealing with regulation of purely educational matters, such as school district organization. For example, a Wisconsin statute was contested as being unconstitutional because it authorized the state school superintendent to merge certain school districts of low assessed valuation with contiguous school districts. The Wisconsin Supreme Court said that “the power to exercise discretion in determining whether such districts shall be altered . . . may be delegated without any standard whatsoever to guide in the exercise of the power delegated.”46 The tendency in recent years has been for the courts to follow a much more lenient policy toward delegation of legislative power.47 Changes in the nature of modern government and the increasing complexity of society necessitate that public agencies have more general authority to assume broader prerogatives. As it now stands, the delegation principle is still applicable to the state educational process, and it remains in use to prevent unconstitutional usurpation of unauthorized powers, but it is much less pervasive than before. The rule today as expounded by state courts is best exemplified by a New York court48 that quoted with approval the standard established by the U.S. Supreme Court, which said that a legislative body “does not abdicate its functions when it describes what job must be done, who must do it, and what is the scope of his authority. In our complex economy, that, indeed, is frequently the only way in which the legislative process can go forward.”49
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Functions of Education Agencies
Although the rationale of the courts continues to follow the delegation doctrine, it should be observed that the proper delegation and a guarantee against arbitrary action by agencies cannot be assured through the specification of standards in legislative declarations. Protection against inappropriate action and injustice in education are to be found more in procedural safeguards and various checks and balances, the most effective of which is, of course, justification of the action to the voters and taxpayers.
Statute Giving Superintendents Authority to Transfer Territory Among School Districts Is an Unconstitutional Delegation of Legislative Power
In the Petition to Transfer Territory from High School District No. 6, Lame Deer, Rosebud County, Montana, to High School District No. 1, Hardin, Big Horn County v. Lame Deer High School District Supreme Court of Montana, 2000. 15 P.3d 447.
Justice WILLIAM E. HUNT, Sr. delivered the Opinion of the Court. Lame Deer High School District appeals the decisions of the Thirteenth Judicial District Court, . . . which reversed the decisions of the State Superintendent and affirmed the County Superintendents’ decisions to grant a transfer of territory from Lame Deer High School District. We reverse the decisions of the District Courts. The appellants raise several issues, but we find the dispositive issue on appeal to be whether the school territory transfer statute, § 20-6-320, MCA, is an unconstitutional delegation of legislative power. Lame Deer High School District (LDHSD) was created in 1993 after extensive hearings and testimony. In February of 1991, after petitions were filed to create the new district, the County Superintendents of Schools of both Big Horn
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and Rosebud Counties held hearings. After both County Superintendents denied the petitions to create LDHSD, the State Superintendent of Public Instruction issued a notice of hearing, consolidated the appeals, and an independent hearing examiner conducted further hearings on the matter. The hearing examiner issued an order; the parties were allowed to file exceptions and present oral arguments. On November 9, 1993, after consideration of this record, the State Superintendent issued her order creating LDHSD. . . . LDHSD includes land from the Colstrip and Hardin High School Districts in both Rosebud and Big Horn Counties, including lands within and outside of the borders of the Northern Cheyenne Reservation. The territories proposed for transfer in this consolidated case border the Northern Cheyenne Indian Reservation on three sides. Transferring both the Rosebud and Big Horn territories from LDHSD would leave the district with only $161,000 in taxable valuation, all within the Northern Cheyenne Indian Reservation. In 1994, individuals residing in both Rosebud and Big Horn Counties, but outside of the Northern Cheyenne Indian Reservation (collectively “Respondents”), petitioned their respective County Superintendents of Schools requesting a territory transfer from LDHSD back to the Colstrip and Hardin High School Districts. Both County Superintendents of Schools held hearings, and both granted the Respondents’ requests to transfer territory from LDHSD pursuant to § 20-6-320, MCA (1993). LDHSD appealed these decisions to the State Superintendent of Public Instruction, who reversed the County Superintendents’ decisions. From that determination, Respondents appealed to their respective District Courts. Both District Courts reversed the State Superintendent’s decisions. LDHSD now appeals from the District Courts’ decisions. . . . The dispositive issue on appeal is whether § 20-6-320, MCA, which gives authority to county superintendents of schools to grant or deny petitions to transfer territory among school districts, is an unconstitutional delegation of legislative power. Our review of issues involving constitutional law is plenary. . . . A statute, however, is presumed to be constitutionally valid. . . . The party challenging the constitutionality of a statute has the burden of overcoming this presumption. . . .
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In general, this Court does not consider issues raised for the first time on appeal. . . . It appears, however, that substantial rights of the litigants are at stake here. Their school district boundaries and tax burden have been affected by a potentially unconstitutional delegation of power to the County Superintendents. . . . LDHSD argues that the County Superintendent’s change of the boundaries of LDHSD was an exercise of legislative power. We have previously held that the authority to alter school district boundaries is legislative in nature. The authority to make school district boundaries is entirely within the power of the legislature. . . . Section 20-6-320, MCA, grants local county superintendents the power to transfer territory from one school district to another. Section 206-320, MCA, gives the county superintendents the authority to alter the boundaries of school districts, constituting a delegation of legislative power. The legislature may constitutionally delegate its legislative functions to an administrative agency, but it must provide, with reasonable clarity, limitations upon the agency’s discretion and provide the agency with policy guidance. . . . Article III, Section 1, of the 1972 Montana Constitution (formerly Article IV, Section 1, 1889 Montana Constitution) provides: Separation of powers. The power of the government of this state is divided into three distinct branches— legislative, executive, and judicial. No person or persons charged with the exercise of power properly belonging to one branch shall exercise any power properly belonging to either of the others, except as in this constitution expressly directed or permitted.
In Bacus v. Lake County (1960), 138 Mont. 69, 354 P.2d 1056, we set the standard for a delegation of legislative power. We stated the rule as follows: The law-making power may not be granted to an administrative body to be exercised under the guise of administrative discretion. Accordingly, in delegating powers to an administrative body with respect to the administration of statutes, the legislature must ordinarily prescribe a policy, standard, or rule for their guidance and must not vest them with an arbitrary and uncontrolled discretion with regard thereto, and a statute or ordinance which is deficient in this respect is invalid.
Bacus, 138 Mont. at 78, 354 P.2d at 1061. A statute granting legislative power to an administrative agency will be held to be invalid if the legislature has failed to prescribe a policy, standard, or rule to guide the exercise of the delegated authority. If the legislature fails to prescribe with reasonable clarity the limits of power delegated to an administrative agency, or if those limits are too broad, the statute is invalid. . . . LDHSD argues that the statute’s delegation of power is unconstitutional because it gives the county superintendents unfettered discretion in determining whether to transfer territory. Further, the statute’s only directive is that the decision must be based on the effects of a transfer on both those living in the territory proposed for transfer and those living in the remaining territory. LDHSD argues that the legislature must give more guidance than this broad discretionary language. Respondents counter that the detailed procedure involved in petitioning for a territory transfer expressly constrains the county superintendents’ ability to act. The legislature has established a number of conditions which must be satisfied before a petition may be considered by a county superintendent of schools. Satisfaction of these conditions, however, does not require granting of a petition. . . . This statute’s only directive on whether to grant or deny a petition is that “the decision must be based on the effects that the transfer would have on those residing in the territory proposed for transfer as well as those residing in the remaining territory of the high school district.” Section 20-6-320(6), MCA (1993) . . . The territory transfer statute does not constrain a county superintendent’s discretion in whether to grant or deny a transfer. The decision is left up to the county superintendent’s unguided judgment. Although this statute sets forth some criteria, the satisfaction of these conditions does not limit a county superintendent’s discretion in granting or denying a petition once the procedural requirements have been met. This statute fails to provide any checks on the discretion of the county superintendent of schools in deciding whether to grant a territory transfer. The statute’s only directive is that the county superintendent should make the decision based on the effects felt by those transferred and those remaining. Section 20-6-320(6),
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Functions of Education Agencies
MCA (1993). The legislature has provided no criteria for balancing the effects felt by the parties involved in a school district territory transfer. Instead, the decision is left solely to the whim of the local county superintendents. It is this broad grant of discretion to a county superintendent of schools, unchecked by any standard, policy or rule of decision, that renders the territory transfer statute unconstitutional. In Bacus, we stated that “the standard must not be so broad that the officer or board will have unascertainable limits within which to act.” Bacus, 138 Mont. at 81, 354 P.2d at 1062. If the legislature had limited a county superintendent to the role of fact finder or if the legislature had set forth the specific criteria to be weighed when deciding to grant or deny a petition, the statute would have conformed to constitutional requirements. We hold that § 20-6-320, MCA, is an unconstitutional delegation of legislative power. The decisions of the District Courts are reversed.
CASE NOTES 1. “The Supreme Court of Nebraska has defined the legislature’s power to delegate authority as follows: The law appears to be well settled that the Legislature may properly delegate authority to an executive or administrative agency to formulate rules and regulations to carry out the expressed legislative purpose, or to implement such expressed purpose in order to provide for the complete operation and enforcement of the statute. The purpose of the delegation of authority ordinarily must be limited by express standards which have the effect of restricting the actions of the agency to the expressed legislative intent. . . .
The difference between a delegation of legislative power and the delegation of authority to an administrative agency to carry out the expressed intent of the legislature and the details involved has long been a difficult and important question. The increased complexity of our social order, and the multitude of details that necessarily follow, has led to a relaxation of the specific standards in the delegating statute in favor of more general ones where a specialized state agency is concerned. It is almost impossible for a legislature to prescribe all the rules and regulations necessary for a specialized agency to accomplish the legislative purpose. The delegation of authority
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to a specialized department under more generalized standards has been the natural trend as the need for regulation has become more evident and complex. . . .” School District No. 8 of Sherman County v. State Board of Education, 176 Neb. 722, 127 N.W.2d 458 (1964). 2. In a Kentucky case concerning the constitutionality of the delegation of legislative power to agencies in general and county boards of education in particular, the court said: It has been suggested that the statute in this respect . . . is unconstitutional as being a delegation of legislative power to the several county boards of education. Such bodies may and do have conferred upon them legislative authority in a degree, for rules and regulations partake of that function. But delegation of legislative power in relation to constitutional limitations means delegation of discretion as to what the law shall be, and does not mean that the legislature may not confer discretion in the administration of the law itself. . . . Many are the instances where powers more nearly approaching the legislative prerogative than this have been vested in executive or administrative agencies and sustained as valid. This authority given the school boards is administrative and not legislative, and the act does not offend the Constitution in this regard. Board of Education of Bath County v. Goodpaster, 260 Ky. 198, 84 S.W.2d 55 (1935).
3. An Illinois court has said that the legislature may not delegate legislative authority but it may “give an administrative body discretionary powers to decide an issue if it establishes standards under which that discretion may be exercised.” People ex rel. Community Unit School District No. 1 v. Decatur School District No. 61, 45 Ill. App.2d 33, 194 N.E.2d 659 (1963). 4. The Illinois Supreme Court has held that the Superintendent of Public Instruction of Illinois is the head of the public school system of that state and is vested by the General Assembly with the duty of establishing standards in education, along the lines delineated by statute. Games v. County Board of School Trustees of McDonough County, 13 Ill. 2d 78, 147 N.E.2d 306 (1958). 5. A Massachusetts court determined that the state commissioner of education has the power to compel local school officials to produce information by racial census. The court said that the commissioner had the implied authority to do in an ordinary and reasonable
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manner those things required for the efficient exercise of powers and satisfactory performance of duties. School Committee of New Bedford v. Commissioner of Education, 349 Mass. 410, 208 N.E.2d 814 (1965).
ADMINISTRATIVE OR EXECUTIVE FUNCTIONS Although functions of educational agencies are difficult to compartmentalize, it is possible to identify certain ones that may be more readily described as executive rather than legislative or judicial. In fact, the organizational structures of state educational agencies tend to adhere to such definition in that the legislative functions are usually vested in a state board of education, the executive functions in a chief state school officer and his or her staff (the state department of education), and the quasi-judicial functions within the authority of either or both. A similar situation exists at the local level, where the board makes policy and the superintendent implements it, with both sometimes exercising quasi-judicial functions. The distinction between legislative and executive acts can be expressed as the difference between the general and the particular: A legislative act is the creation and promulgation of a general rule of conduct without reference to particular cases; an administrative act cannot be exactly defined, but it includes the adoption of policy, the making and issue of specific direction, and the application of a general rule to a particular case in accordance with the requirements of policy and expediency of administrative practice.50
Activities of the educational agency that may be classified as purely executive are declaring and enforcing policy as well as advising and supervising implementation of policy. One can easily identify such activities as they are performed daily in state agencies; for example, when a policy is established, it must be properly interpreted and conveyed to the local school district administrators, then advice may be given and certain supervisory activities may be followed to assist in implementation. Should problems arise, steps must be taken to ensure enforcement of the particular policy. Executive actions can also be viewed in the more commonly used legislative categories of ministerial and discretionary functions. “Ministerial” refers to those required duties performed by the administrator for which no exercise of
judgment is permitted. “Discretionary” functions, as noted earlier, are judgmental and represent exercise of substantial administrative prerogative. An official can pass ministerial functions to a subordinate, but cannot delegate duties that are discretionary in nature. Discretionary functions, of course, represent an area of major overlap with the broader quasi-judicial functions of agencies. The maxim delegatus non potest delegare has, on the whole, been more strictly enforced when applied to subdelegation than at the primary or legislative level of delegation. In other words, courts tend to examine more critically the internal delegation of a discretionary function from the state superintendent down to an assistant than from the legislature to the agency itself. For example, where statute vests a specific discretionary power in a state board, the board cannot subdelegate to one board member or to some other officer, such as the state superintendent. Similarly, statutory discretion vested in the state superintendent cannot be redelegated to a deputy or assistant. Ministerial functions, on the other hand, can be subdelegated. As is true at the state level, a local school board cannot delegate discretionary functions, but it may delegate ministerial functions. The exact definition between discretionary powers that cannot be delegated and ministerial powers that can be delegated, is, however, indistinct. A good illustration is provided by a 1987 Colorado case in which the power to dismiss personnel was delegated. Normally, personnel matters involving hiring and firing of employees are considered to be discretionary or quasi-judicial powers that cannot be delegated; yet the high court of Colorado upheld the dismissal of a school bus driver by the school district’s director of business services, because the court found that such discharges were administrative matters and did not constitute action “significantly related to the policy-making duties” of the school district.51 Will has pointed out that there is a discernible trend toward the separation of the legislative function and the executive powers in state educational administration. He describes the pattern in this way: Students of state educational administration commonly hold that the central education agency should consist of a state board of education, a chief state school officer, and the necessary staff.
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Functions of Education Agencies The state board of education is looked upon as the agency’s legislative policy-making body, the chief state school officer as the agency’s executive officer, and the organized staff as the agency’s work force. A virtually complete separation of legislative and executive powers at the administrative level is intended under this pattern.52
The powers and duties of the state board of education, the chief state school officer, and the state department of education vary from state to state; however, general rules governing the delegation of legislative powers, the exercise of discretionary authority, and the quasi-judicial role of central state agencies are carefully circumscribed by court decisions.
QUASI-JUDICIAL FUNCTIONS In their tripartite capacity, administrative agencies hand down many more decisions affecting individuals than do the formal courts of this country. Decisions by educational tribunals form an important source of law under which education operates. Authority for decisions by educational tribunals may be found at federal, state, and local levels. At the federal level, statutes often vest the U.S. Commissioner of Education with quasi-judicial authority to render decisions in disputes over federal grant processes and procedures that may have direct impact on individuals or states. At the state level, quasi-judicial authority may be given to state boards of education, to state superintendents, or, in some cases, to other legislatively authorized bodies. New Jersey and New York are good examples of states in which such powers are vested in the chief state school officer. The state commissioner of education in New Jersey has the authority to decide cases involving internal administrative operations of the public schools of that state. A New Jersey court has said that a statute providing that the state commissioner shall decide all controversies under the school laws of the state is evidence of legislative intent to set up a comprehensive system of internal appeals with broad powers. Such an authority vested in administrative tribunals ensures that controversies are justly disposed of in accordance with the law.53 In another New Jersey case illustrating the judicial function of the state commissioner of education, the court said that the commissioner must
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enforce all rules and regulations prescribed by the state board and decide all questions arising under rules and regulations of the state board.54 Determinations by these tribunals are binding on the parties involved and serve additionally to establish a type of quasi-judicial stare decisis within the agencies’ jurisdiction. Agencies, in exercise of their judicial powers, are required generally to merely provide fair treatment to the parties involved. Some states, through administrative procedure acts, may provide a specific definition of the requirements of fairness, and, when administrative tribunals are dealing with disputes involving constitutional interests, more elaborate procedures are necessary. In the absence of statutory or constitutional restraints, however, the courts have been very liberal in allowing educational tribunals to establish their own procedures. In so doing, courts more or less adhere to a requirement similar to the English doctrine of audi alteram partem of natural justice that requires tribunals to adjudicate fairly. Fairness is not always easily defined, but may be roughly equated to reasonableness and good faith. These two standards are not the same, but may be viewed as complementary. It has been said that “some of the most honest people are the most unreasonable; and some excesses may be sincerely believed in but yet be quite beyond the limits of reasonableness.”55 It is true, however, that the actions of one conducting a hearing could be so unreasonable as to be arbitrary and capricious and as such appear to be taken in bad faith. The objective is for justice to be rendered by tribunals, whether they are courts of law or administrative agencies. When persons stand before tribunals, there is an implicit assumption that the tribunal will act “neutrally in a principled way” because there is a natural right of justice for requiring that tribunals not help nor hinder one side more than the other.56 Fairness of a hearing may also be explained in terms of equality before the law. It is expected that persons coming before a tribunal will be treated equally, and the determination favorable or unfavorable toward one or the other will be ascribed on the merits of the case. Equality, as an aspect of fairness, requires that “rules of law shall be applied according to their terms without regard to the person(s) involved. . . .” This equal
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application of laws is guaranteed not only by common law, but also by constitutional provisions guaranteeing due process.57 A particularly perplexing problem is presented when the tribunal is itself a party to the action that comes before it. Because school boards have tripartite jurisdiction—legislative, executive, and quasi-judicial—it is not uncommon for a board to sit in judgment in its own cause. Because of the nature of our governmental system, however, this problem cannot be avoided. This particular issue, whether a school board can sit in judgment when it is a party in the dispute, has been litigated before the U.S. Supreme Court. The Court held that the mere fact that a public agency is, as a body, a party to a dispute before it is not alone an indication of bias sufficient to violate due process.58
A School Board Is Assumed To Be an Impartial Tribunal Unless Bias Is Shown
Hortonville Joint School District No. 1 v. Hortonville Education Association Supreme Court of the United States, 1976. 426 U.S. 482, 96 S.Ct. 2308.
Mr. Chief Justice BURGER delivered the opinion of the Court. We granted certiorari in this case to determine whether School Board members, vested by state law with the power to employ and dismiss teachers, could, consistent with the Due Process Clause of the Fourteenth Amendment, dismiss teachers engaged in a strike prohibited by state law. The petitioners are a Wisconsin school district, the seven members of its School Board, and three administrative employees of the district. Respondents are teachers suing on behalf of all teachers in the district and the Hortonville Education Association (HEA), the collective-bargaining agent for the district’s teachers.
During the 1972–1973 school year Hortonville teachers worked under a master collectivebargaining agreement; negotiations were conducted for renewal of the contract, but no agreement was reached for the 1973–1974 school year. The teachers continued to work while negotiations proceeded during the year without reaching agreement. On March 18, 1974, the members of the teachers’ union went on strike, in direct violation of Wisconsin law. . . . On April 1, most of the striking teachers appeared before the Board with counsel. Their attorney indicated that the teachers did not want individual hearings, but preferred to be treated as a group. Although counsel agreed that the teachers were on strike, he raised several procedural objections to the hearings. He also argued that the Board was not sufficiently impartial to exercise discipline over the striking teachers and that the Due Process Clause of the Fourteenth Amendment required an independent, unbiased decisionmaker. . . . The sole issue in this case is whether the Due Process Clause of the Fourteenth Amendment prohibits this School Board from making the decision to dismiss teachers admittedly engaged in a strike and persistently refusing to return to their duties. Respondents’ argument rests in part on doctrines that have no application to this case. They seem to argue that the Board members had some personal or official stake in the decision whether the teachers should be dismissed . . . and that the Board has manifested some personal bitterness toward the teachers, aroused by teacher criticism of the Board. . . . [T]he teachers did not show, and the Wisconsin courts did not find, that the Board members had the kind of personal or financial stake in the decision that might create a conflict of interest, and there is nothing in the record to support charges of personal animosity. . . . The only other factor suggested to support the claim of bias is that the School Board was involved in the negotiations that preceded and precipitated the striking teachers’ discharge. Participation in those negotiations was a statutory duty of the Board. The Wisconsin Supreme Court held that this involvement, without more, disqualified the Board from deciding whether the teachers should be dismissed:
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Functions of Education Agencies The board was the collective bargaining agent for the school district and thus was engaged in the collective bargaining process with the teachers’ representative, the HEA. It is not difficult to imagine the frustration on the part of the board members when negotiations broke down, agreement could not be reached and the employees resorted to concerted activity. . . . They were . . . not uninvolved in the events which precipitated decisions they were required to make. . . .
Mere familiarity with the facts of a case gained by an agency in the performance of its statutory role does not, however, disqualify a decisionmaker. . . . Nor is a decisionmaker disqualified simply because he has taken a position, even in public, on a policy issue related to the dispute, in the absence of a showing that he is not “capable of judging a particular controversy fairly on the basis of its own circumstances.” . . . Due process, as this Court has repeatedly held, is a term that “negates any concept of inflexible procedures universally applicable to every imaginable situation.” . . . Determining what process is due in a given setting requires the Court to take into account the individual’s stake in the decision at issue as well as the State’s interest in a particular procedure for making it. . . . Our assessment of the interests of the parties in this case leads to the conclusion that . . . the public interest in maintaining uninterrupted classroom work required that teachers striking in violation of state law be discharged. The teachers’ interest in these proceedings is, of course, self-evident. They wished to avoid termination of their employment, obviously an important interest, but one that must be examined in light of several factors. Since the teachers admitted that they were engaged in a work stoppage, there was no possibility of an erroneous factual determination on this critical threshold issue. . . . The Board’s decision whether to dismiss striking teachers involves broad considerations, and does not in the main turn on the Board’s view of the “seriousness” of the teachers’ conduct or the factors they urge mitigated their violation of state law. It was not an adjudicative decision, for the Board had an obligation to make a decision based on its own answer to an important question of policy: What choice among the alternative
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responses to the teachers’ strike will best serve the interests of the school system, the interests of the parents and children who depend on the system, and the interests of the citizens whose taxes support it? . . . State law vests the governmental, or policymaking, function exclusively in the School Board, and the State has two interests in keeping it there. First, the Board is the body with overall responsibility for the governance of the school district; it must cope with the myriad day-to-day problems of a modern public school system including the severe consequences of a teachers’ strike; by virtue of electing them the constituents have declared the Board members qualified to deal with these problems, and they are accountable to the voters for the manner in which they perform. Second, the state legislature has given to the Board the power to employ and dismiss teachers, as a part of the balance it has struck in the area of municipal labor relations; altering those statutory powers as a matter of federal due process clearly changes that balance. Permitting the Board to make the decision at issue here preserves its control over school district affairs, leaves the balance of power in labor relations where the state legislature struck it, and assures that the decision whether to dismiss the teachers will be made by the body responsible for that decision under state law. Respondents have failed to demonstrate that the decision to terminate their employment was infected by the sort of bias that we have held to disqualify other decisionmakers as a matter of federal due process. A showing that the Board was “involved” in the events preceding this decision, in light of the important interest in leaving with the Board the power given by the state legislature, is not enough to overcome the presumption of honesty and integrity in policymakers with decisionmaking power. . . . Accordingly, we hold that the Due Process Clause of the Fourteenth Amendment did not guarantee respondents that the decision to terminate their employment would be made or reviewed by a body other than the School Board. The judgment of the Wisconsin Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. Reversed and remanded.
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CASE NOTES 1. The decision of the Commissioner of Education of New York, acting in a quasi-judicial capacity in interpreting a statute, is to be given great weight by the courts, and unless irrational or unreasonable, the decision will be upheld. Board of Education of Roslyn Union Free School District v. Nyquist, 90 Misc.2d 955, 396 N.Y.S.2d 567 (1977). 2. Administrative agencies in quasi-judicial hearings have traditionally not been held to the intricate procedural requirement of the courts. However, there are fundamental requirements of fairness that must be observed. A West Virginia court had this to say concerning the conduct of hearings by administrative agencies: An administrative body, clothed by law with quasijudicial powers, must never depart from those elemental principles of discreetness and circumspection which our system of law requires in all tribunals which purport to conduct trials. . . . There was a time in the history of English jurisprudence when a felon was not entitled to have the assistance of an attorney at law, but in America, the very word “hearing,” both in common and legal parlance, implies some kind of trial, formal or informal, and presupposes permission to have legal aid if desired. State ex rel. Rogers v. Board of Education of Lewis County, 125 W.Va. 579, 25 S.E.2d 537 (1943).
3. Legislation in Texas has been interpreted to mean that all administrative steps should be taken to resolve a dispute before appeal can be taken to the courts. Exception to this rule is only found where an action involves a question of taxation, City of Dallas v. Mosely, 286 S.W. 497 (Tex. Civ. App. 1926), if the facts are undisputed and the issue is one purely of law and not of education; in such instances, direct access to the courts is available. Alvin Independent School District v. Cooper, 404 S.W.2d 76 (Tex. Civ. App. 1966). 4. A Maryland court has held that the state board of education has the last word on any matter concerning educational policy or administration of the system of public instruction; however, it cannot finally decide pure questions of law nor exercise its visitatorial power fraudulently, in bad faith, or in breach of trust. Where the Maryland State Board of Education set a rule for a county board of education requiring fingerprint cards of all employees to be submitted to local police, the
court upheld the action of the state board as being a valid exercise of its authority. Wilson v. Board of Education of Montgomery County, 234 Md. 561, 200 A.2d 67 (1964). 5. A Missouri court has held that, where four local school districts were unable to reorganize because of the refusal of one to discuss the matter, the state board of education was vested with exclusive jurisdiction to make the decision for the board, and once this decision by the state board was approved by the voters, the school district became officially and legally organized. Eagleton ex rel. Reorganized School District R-I of Miller County v. Van Landuyt, 359 S.W.2d 773 (Mo. 1962).
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Judicial Review of School Board Actions
Whether the administrative actions be legislative, executive, or judicial, the courts agree that school boards or officials may exercise those powers expressly granted by statute, and those fairly and necessarily implied: The rule respecting such powers is that, in addition to the powers expressly given by statute to an officer or board of officers, he or it has by implication such additional powers as are necessary for the due and efficient exercise of the powers expressly granted or which may be fairly implied from the statute granting the express powers.59
Although some flexibility in discretion is necessary, indeed indispensable, for the schools to operate efficiently, the courts cannot usurp the legislative function by too broad an interpretation of administrative powers.60 In challenging the exercise of administrative powers by an educational agency, express or implied, the aggrieved parties are required by the courts to exhaust their administrative remedies before they are allowed to bring an action before the courts. Such a rule assures the courts that issues have been properly treated at lower levels, within the realm of administrative authority, thus preventing continuous involvement of the courts in educational disputes where legitimate legal controversy is not present. Examples of the hesitancy of courts to intervene until administrative remedies are exhausted may be found in many instances.61
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Judicial Review of School Board Actions
In New York, the state administrative decisions are considered to have substantial weight owing largely to a statute that provides that decisions of the commissioner of education “shall be final and conclusive, and not subject to question or review in any place or court whatsoever.” Although this provision on its face would appear to preclude any judicial intervention, the true “intent” has been interpreted to mean that the decisions of the commissioner would stand so long as they were not arbitrary.62 The general rule of law is probably best expounded by an Illinois court, which stated: A court of review cannot substitute its judgment for the judgment of the administrative tribunal. The question is not simply whether the court of review agrees or disagrees with the finding. . . . It has been said that courts should not disturb administrative findings unless such findings are arbitrary, or constitute an abuse of discretion, or are without substantial foundation in evidence, or are obviously and clearly wrong, or unless an opposite conclusion is clearly evident.63
Although this rule governing judicial review of administrative actions is generally followed by courts across the country, the individual interpretations of the rule are widely variant, ranging from rather strict adherence to what some would consider to be relative disregard. As a matter of fact, courts may exercise their prerogatives to intervene and alter administrative action with several different legal bases. Ministerial actions of government agencies have been successfully challenged under the ancient legal doctrines of nonfeasance, misfeasance, or malfeasance. Failure to perform properly may be remedied by the courts by use of the common law remedy, writ of mandamus. If the aggrieved party is seeking to prevent an inappropriate action, then an injunction may be the appropriate legal remedy. On the other hand, if discretionary actions are in question, then the person challenging the action may proceed from a broader legal basis. As mentioned previously, the fairness and reasonableness of an action are requisite to the appropriate use of the quasi-judicial authority of an agency. More directly, discretionary powers may be viewed quite broadly, and if an agency acts beyond the scope of its powers, it may well be ultra vires. A discretionary power may be abused in either good faith or in bad faith, but in both instances the action may
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be voided by the courts.64 Beyond inquiry into an ultra vires act, judicial intervention may be justifiable in the following situations: 1. A power granted to an agency is not properly applied. Here the courts will seek to determine whether the agency had either express or implied statutory power to perform as it did, and if the statute was broad enough, with possibly a plurality of purposes sufficient to support the action. The court will generally apply certain tests, including seeking to ascertain: (a) the true purpose for the action, (b) the dominant purpose, and (c) if there was an unauthorized or illicit purpose,65 or if the action was taken in bad faith. 2. The agency, official, or tribunal was influenced by considerations that could not have been lawfully taken into account, or it ignored obviously relevant considerations. Plaintiff, though, must show that irrelevant considerations were actually relied upon in the decision. Certainly, if extraneous or irrelevant matters are set out as reasons in support of the decision, then courts may consider the result to be invalid. 3. Prescription of law is not followed in effecting administrative actions. Although most instances that come to mind here involve ministerial functions (e.g., following election procedures or budgetary submission processes), the educational agency’s action may also be challenged if it fails to recognize or appreciate the amplitude of its discretion.66 For example, a state authority may have the statutory power to grant salary increases or increase fringe benefits, but misconstrues and through misunderstanding fails to recognize the discretion. Here, it is not the reasonableness of the decision made by the agency, but the failure of the agency to recognize its power that is judicially questionable. 4. A public education board binds itself through its own regulation in such a way as to constrict or disable itself from fulfilling the primary purposes for which it was created. Where a public body is entrusted by the legislature with certain powers and duties either express or implied for public purposes, the body cannot divest itself of such powers and duties. Regulations or bylaws that effectively thwart statutory intent— for example, by contracting away a power or requiring the exercise of a broad power in a
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restrictive way—may be unreasonable and incompatible with public purpose. Courts do not penalize a state agency for possible error in the exercise of discretion where judgment or opinion of the public officials is in contest. If there are reasonable grounds, the judge has no further duty to inquire. The criterion of reasonableness is not subjective, but objective in the sense that it must be weighed in light of surrounding facts and circumstances. This rule applies to actions of local school agencies as well as to state educational agencies. The Virginia Supreme Court has refused to intervene and question a school division action even if the court would quite probably not have agreed with the result of the decision. The court said: “[W]here there is rational, legal and factual basis for a school board’s administrative determination, the Court will not overturn such decision and substitute its own judgment even if it would have reached a contrary conclusion.”67 The court is concerned with whether the judgment rendered by the board is founded on “rational, legal and factual” information, not whether the court, viewing the same situation and evidence, would have reached a contrary decision. The party who assails a school board’s decision must prove that the board acted arbitrarily and without regard for the evidence, and thus illegally, before a court will upset a board’s decision.68
School District Did Not Abuse Its Discretion When It Decided Not to Provide Bus Transportation for Students
Sioux City Community School District v. Iowa Department of Education Supreme Court of Iowa, 2003. 659 N.W.2d 563.
STREIT, Justice. This dispute began when the Sioux City Community School District decided not to provide
busing for students who live less than two miles from the school. Parents appealed this decision to the Western Hills Area Education Agency (AEA). The AEA found the route students would have to travel was unsafe and therefore reversed the school district’s decision. Both the Department of Education and district court affirmed the AEA’s decision. Because we find the school district did not abuse its discretion in deciding not to provide transportation, we reverse. This case involves a dispute over the provision of transportation for ninety-four students to and from McKinley Elementary School in Sioux City, Iowa. Children who reside at the Regency Mobile Home Park in Sioux City live approximately one mile from their school. . . . . . . The AEA found the route between the mobile home park and the school was not reasonably safe for elementary students to travel. It concluded the school district’s decision to not provide transportation was not a proper discretionary act and ordered the school district to immediately resume transportation services for the students. The school district appealed and both the Iowa Department of Education (Department) and the district court affirmed the AEA’s decision. The school district appeals the decision of the Department claiming it exceeded its authority in ordering the school district to provide transportation. . . . The school district begins by challenging the applicable standard under which the Department has authority to review its decision. The school district’s argument shows a dichotomy of thought. On the one hand, the school district argues there can be no review of its discretionary decisions. On the other hand, the school district states if we review its discretionary decision, we can review only for an abuse of discretion. The Department did not precisely articulate the applicable scope of review for its review of the school district’s decision. In the Department’s decision, and implicitly on appeal, the Department urges the director may determine whether the school district’s decision was reasonable and “exercise [its] own independent judgment and discretion.” The parties disagree over whether substantial credible evidence supports the school district’s decision not to provide transportation. Both parties concede the Department has authority to review the school district’s decision. However, they disagree over the appropriate
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Judicial Review of School Board Actions
standard of review the Department must apply in its review. We begin by briefly explaining the powers of the school district in transportation matters. Iowa Code chapter 285 gives the board of directors of a school district certain duties and powers over the provision of transportation. The school district argues its decision to not provide transportation in this case was a discretionary decision subject to review only for an abuse of discretion. The school district relies upon Iowa Code section 285.1 which provides the board of directors of every school district, shall provide transportation . . . for all resident pupils attending public school, kindergarten through twelfth grade, except that: (a) Elementary pupils shall be entitled to transportation only if they live more than two miles from the school designated for attendance. . . . (d) Boards in their discretion may provide transportation for some or all resident pupils attending public school . . . who are not entitled to transportation. . . . Iowa Code § 285.1(1) (1999).
The code creates only one mandate for the school district. The school district must provide transportation to students who live more than two miles from school. . . . Apart from this requirement, the school district is vested with discretionary authority to decide whether to provide transportation under other circumstances. Iowa Code section 274.1 supports this conclusion stating, “[e]ach school district . . . shall have exclusive jurisdiction in all school matters. . . .” Id. § 274.1. The school district’s decision to not provide transportation was discretionary in nature because the statute states the provision of transportation is discretionary for students living less than two miles from school. . . . In the case before us, the statute giving the school district discretion in the matter of transportation controls the standard we will use to review the school district’s decision. Administrative boards, commissions, and officers have no common law powers. The powers and duties of public office are measured by the terms and necessary implication of the grant of constitutional or statutory authority; in this regard, it has sometimes been stated that public officers have only those powers expressly granted or necessarily implied by statute. . . . 63C Am.Jur.2d Public Officers and Employees § 231, at 670 (1997); 67 C.J.S. Officers § 107, at 378 (2002). . . .
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Nothing in Iowa Code Section 285.12 suggests the scope of the Department’s review of the school district’s decision is de novo, allowing the Department to reverse the school district and substitute its own judgment. No statute gives the Department authority to override the school district’s ultimate decision because it determines the decision was wrong. Rather, where a statute provides for a review of a school district’s discretionary action, the review, by necessary implication, is limited to determining whether the school district abused its discretion. . . . Because the school district has discretion in the provision of transportation and the Department has authority to review decisions made pursuant to such discretion, its review is necessarily limited to the abuse of discretion standard. We can find no statute in the Code of Iowa or in the Iowa Administrative Code which gives the Department more authority upon review than that necessary to determine whether the school district abused its discretion. In applying abuse of discretion standards, we look only to whether a reasonable person could have found sufficient evidence to come to the same conclusion as reached by the school district. . . . In so doing, we will find a decision was unreasonable if it was not based upon substantial evidence or was based upon an erroneous application of the law. . . . Neither we nor the Department may substitute our judgment for that of the school district. . . . The issue is whether the Department properly reviewed the school district’s decision for an abuse of discretion. The Department stated, “Although reasonable minds could differ over the judgment call that the [AEA] was called upon to make,” it went on to say the parents “convinced” the AEA that the school district’s decision was “adverse to the health and safety of the students.” By stating “reasonable minds could differ” over this discretionary decision, the Department conceded there was evidence supporting the school district’s decision. That is, the Department did not review the school district’s action for abuse of discretion but instead made its own judgment based upon the entire record. This conclusion is even more evident by the Department’s statement that the parents “convinced” the AEA the district’s decision was not correct. Such a statement shows the Department, like the AEA before it, considered the entire record and concluded the
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school district’s decision was wrong. The Department did not determine whether a reasonable person could have come to the same conclusion as the school district. The Department’s action exceeded its authority. Under the appropriate standard, a reasonable person could have found substantial credible evidence supporting the school district’s decision. The sidewalk in question was constructed by the City of Sioux City in compliance with all of the applicable laws and ordinances. The school district created the District Traffic Safety Committee to study the area and make recommendations as to the safety of the route for school children. . . . The safety committee members met several times to discuss the area around Gordon Avenue. The committee made visual inspections of the route and examined the traffic volume and patterns. Before making any conclusions, the committee consulted the Department of Motor Vehicle Safety, Department of Transportation, and the City of Sioux City. It discussed the safety of the route with various experts who all determined the area was safe for students to use. The committee made special note of the concerns of the AEA. It discussed numerous possibilities, aside from providing transportation to the students, that might increase the relative safety of the area. The safety committee compared the nature of this particular sidewalk to others in the area that students must walk to get to school. It determined the traffic flow along Gordon Drive was regular, but not excessive, and the speed of the traffic was not extreme. . . . It concluded the distance between the sidewalk and the frontage road did not present any safety concerns. Because some parents complained snow removal was not regular on the sidewalk, the committee examined the maintenance of the area. Although there was one report of snow on the sidewalk preventing the students from using it, the safety committee determined the snow removal overall was reliable and the conditions were not dangerous for the students. Based upon these findings, the committee concluded, as a general matter, this particular sidewalk presents no more danger to the students than any other sidewalk in Sioux City. . . . The superintendent considered and accepted the committee’s findings and recommendations. In determining the school district would no longer provide transportation to these students, the
superintendent considered the following: safety of the students, cost and reimbursement schedules of the State of Iowa, equitable treatment for all students in the Sioux City Community School District, statutory obligations, and the actual conditions of the route along Gordon Drive. The school board voted unanimously supporting the superintendent’s conclusion the route was safe. Given the facts above, it can hardly be argued the school district did not carefully balance competing considerations in exercising its discretion determining whether it should bus these students to and from school. It did not make a denial of the parents’ request without first exploring the situation. In keeping with the findings of the safety committee, the school district made an informed decision and concluded it was not appropriate under the circumstances to provide transportation for these students. Taking into consideration the recommendations for safety improvement made by the commission, the school district determined this route was safe for the students to use. . . . The school district by reason of statute has discretion in its provision of school transportation for students who live less than two miles from school. The Department has authority to review the school district’s discretionary decisions made pursuant to Iowa Code section 285.12. However, by necessary implication, the Department’s review is limited to determining whether the school district abused its discretion. The parents were required to show the school district’s decision was unreasonable and lacked rationality. The Department exceeded its authority by substituting its judgment for that of the school district. The record shows substantial credible evidence upon which a reasonable person could come to the same conclusion as did the school district. As such, we reverse the Department’s order compelling the school district to provide transportation services. Reversed.
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Authority of Interscholastic Organizations
Membership of a school district in an interscholastic organization requires that a certain amount of autonomy of the participating school
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Authority of Interscholastic Organizations
be relinquished in order for the organization to be viable. School districts that volunteer to join must therefore subordinate their authority to some extent to the control of the interscholastic organization. Such organizations are normally nonprofit and privately governed corporations, with boards made up of individuals from participating schools. As a general rule, the regulations of the interscholastic organizations bind the school districts that are in membership. 69 The courts have by-and-large upheld reasonable rules vesting authority in interscholastic athletic associations.70 The courts will, however, overturn association rules that are contrary to good educational policy, or are arbitrary or irrational.71 Litigation frequently arises when athletic associations deny academic eligibility to student athletes. The courts will normally not intervene and substitute their judgment on athletic associations’ rules with regard to academic standards to which student athletes must adhere,72 but rules of athletic associations are subject to state and federal constitutions and cannot infringe on constitutional rights of students and parents. The fact that these associations are voluntary and established as private corporate entities does not prevent the courts from finding sufficient “state action” to subject their rules to state and federal constitutional restraints. Although students do have a constitutional right to attend public schools,73 they do not necessarily have a right to participate in interscholastic athletics;74 however, there are exceptions to this prevailing view. For example, the Montana Supreme Court has held that students clearly have a constitutional right to participate in extracurricular activities;75 however, the students’ rights of participation are not absolute, and such rights can be denied by reasonable rules of eligibility promulgated by either the school district and/or the interscholastic association.76 Where a student was denied participation in basketball because of a high school athletic association rule requiring attendance in the school for one semester prior to playing, the Montana Supreme Court ruled that the delegation of such rule-making authority to the athletic association by the school district was not an illegal delegation, and that such a rule did not violate the student’s constitutional rights.77
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Yet, with regard to delegation, the Iowa Supreme Court has rejected the validity of a general delegation of the regulation of student eligibility to interscholastic athletic associations.78 The Iowa court observed that the school boards’ rulemaking involves the exercise of judgment and discretion. The functions involving judgment and discretion that are delegated to local school boards must be exercised by the school board only and cannot be delegated to another organization, body, or board. Only ministerial powers, those powers not requiring the exercise of judgment, can be delegated. The Iowa Court said that while it is a general rule that powers conferred upon a public board or body cannot be delegated, yet a public corporation or municipality or instrumentality of government may, like a private corporation or person, do its ministerial work by agents or committees. . . . Where the act to be done involves judgment or discretion, it cannot be delegated to an agent or committee.79
Further, the Iowa court laid down the rule of law as follows: “. . . a school district or other local school organization cannot lawfully delegate to others, whether to one or more of its members, or to any school officer, or to any other board, the exercise of any discretionary power conferred by law.”80 The Iowa court concluded that the legislature clearly meant for schools to participate in interscholastic events sponsored by qualifying organizations, but from that, it could not be inferred that schools could turn over their rule-making authority to such organizations.81 Thus, whether the school district can assign away its authority to an interscholastic organization may depend on the technicality of not only the relevance and reasonableness of the delegation, but also whether the functions of the organization can be characterized as merely ministerial or involving the exercise of judgment or discretion of the school board as contemplated by the legislature. A collateral issue of importance to the question of valid authority is whether an incorporated nonprofit interscholastic athletic association is involved to a sufficient degree in “state action” as to be subject to the strictures of Section 1983 of the Civil Rights Act or Title IX. If there is state action, the interscholastic
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association is vulnerable to federal statutory and constitutional claims. In 2001, the U.S. Supreme Court held in Brentwood Academy v. Tennessee Secondary Schools Athletic Ass’n82 that such associations’ activities entail state actions, as does a local school board, and are therefore to be treated as any other state agency or local school district in civil rights actions. After this initial Brentwood case was resolved, with the ruling by the Supreme Court that the Tennessee Secondary Schools Athletic Association (TSSAA) had the legal attributes of the state and its acts constituted “state action,” another controversy between the two parties arose whereby the Brentwood private school’s football coach was accused by the TSSAA of recruiting violations.83 Brentwood sued claiming that the sanctions imposed by the TSSAA against the school constituted “state action” denying the school its First Amendment free speech rights and Fourteenth Amendment due process interests. The TSSAA countered that its anti-recruiting rule was both reasonable and rational. The Supreme Court found for the TSSAA holding that the association’s rules and their implementation did entail “state action” bringing the issue under the First and Fourteenth Amendments; however, Brentwood’s claims fell far short of the denial of either the First or Fourteenth Amendment. The Court observed that “Brentwood made a voluntary decision to join TSSAA and to abide by its recruiting rules,” yet then failed to abide by such rules. Therefore, sanctions by the TSSAA against Brentwood do not offend or even touch on the denial of First Amendment free speech. Similarly, the school’s due process interests were not offended as the record indicated that the TSSAA had engaged in extensive communications with Brentwood officials and had made its decision after due deliberations. Thus, even though the TSSAA actions were, in fact, “state actions,” such did not offend the protections of the First and Fourteenth Amendments.84 This issue of “state action” is treated further in a later chapter that is devoted to the federal civil rights legislation and the Equal Protection Clause of the U.S. Constitution. The following Grabow case illustrates what is probably the prevailing view of the courts regarding the validity of the delegation of
school board authority to interscholastic athletic organizations.
School District’s Membership in High School Athletic Association, Under Which the District Consented to Abide by Association Rules, Did Not Constitute an Unlawful Delegation of School Board Power.
Grabow v. Montana High School Association Supreme Court of Montana, 2002 312 Mont. 92, 59 P.3d 14.
REGNIER, Justice. Rob Grabow sought a declaratory judgment and injunctive relief against the Montana High School Association (the “MHSA”) in the First Judicial District Court, Lewis and Clark County. . . . [T]he District Court ruled against Grabow. Grabow appeals and we affirm. . . . For purposes of this appeal, we will summarize the facts . . . Grabow enrolled at Park High School in Livingston, Montana, in the fall of 1999. After he enrolled, the MHSA informed Grabow that he could not participate in basketball because of its semester rule. The semester rule essentially states that students each have eight consecutive semesters within which they may participate in MHSA contests. Grabow, the MHSA determined, did not meet this requirement. The MHSA is a nonprofit association that has existed since 1921. It supervises, regulates and administers interscholastic activities between its member high schools. Delegates from the member schools meet each year to conduct the business of the MHSA, which a staff and sevenmember Board of Control then administer. The MHSA classifies schools into four classifications; each of which, along with the Montana School Boards Association, Office of Public Instruction and Governor, elects one member of the Board of Control. All public and private high schools in Montana that the Montana Board of Public Education
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Authority of Interscholastic Organizations
accredits may join the MHSA. Membership is voluntary and has consisted of 182 public and private schools during the relevant times of this appeal. Park High School, which Grabow attended, is a member of the MHSA. The Board of Trustees (the “Board”) for the school district in which Park High School is located meets each year to consider and vote on whether to rejoin the MHSA. Each year, the Board renews its membership by signing a membership form. Before the MHSA’s annual meeting, the Board receives and considers any proposed changes to the MHSA’s rules and regulations. The Board then instructs its representative on how to vote. As a member of the MHSA, the Livingston School District also had the power to submit proposed changes at the MHSA;s annual meeting. Grabow filed a complaint with the District Court seeking relief from the MHSA’s decision to declare him ineligible to play basketball. . . . Grabow now appeals. . . . May the Livingston School District contract with the MHSA to consent to be bound by the MHSA’s rules? The Montana Constitution vests school board trustees with the power to supervise and control the schools in their district. See Mont. Const. Art. X, § 8. The Montana Code, in turn, authorizes trustees to adopt policies and perform any duties necessary to carry out their legal requirements. The pivotal question in this appeal is what powers do trustees have regarding interscholastic athletics. Grabow argues, however, that the Board unlawfully delegates the authority to govern interscholastic activities by violating a student’s right to administrative appeal. The Board allegedly does this by binding itself to the MHSA’s rules and decisions. Grabow points out that § 20-3-210, MCA, states that the county superintendent “shall hear and decide all matters of controversy . . . as a result of decisions of the trustees.” Under the MHSA’s structure, however, students have no mechanism of administrative appeal from an MHSA decision. Grabow contends that the Board thus divests students of their right to review by leaving final decision-making authority with the MHSA. Because the legislature never granted school boards the power to delegate decision-making authority to the MHSA, Grabow asserts that this delegation is unlawful.
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Other jurisdictions are split on the issue of whether a voluntary membership in a high school athletic association is an unlawful delegation of authority. Compare Quimby v. School Dist. No. 21 of Pinal County (1969), 10 Ariz.App. 69, 455 P.2d 1019 (concluding that becoming a member of an association was not a delegation of governmental power) with Bunger v. Iowa High Sch. Athletic Ass’n (Iowa 1972), 197 N.W.2d 555 (concluding that membership was a delegation of power). Ultimately, we find the Quimby line of reasoning more persuasive. We conclude that becoming a member of the MHSA is not an unlawful delegation of a governmental power. Competitive interscholastic athletics requires rules for competition. The MHSA establishes its rules through the vote of its members. If a school board disagrees with any of the rules, it may refuse to participate in the MHSA. Accordingly, the school district makes the rules of the association its own by participating. We acknowledge that a school district would undoubtedly have a difficult time finding other schools against which to compete if it decided to withdraw from the MHSA. Such a consequence, however, does not render membership in the MHSA involuntary. Instead, it simply highlights the nature of organized athletics. Interscholastic competition would simply not exist unless some independent entity serves as a neutral arbiter to establish and monitor eligibility rules and the ground rules for play. While the consequences may weigh on a district’s decision to withdraw from the MHSA, the district still remains free to do so. While school districts may adopt the MHSA’s eligibility rules as their own, enforcement of these rules is a unique power derived through mutual agreement that no individual school board possesses. School boards have no power of supervision or control over schools outside their own school district. The Helena School Board, for instance, could not enforce eligibility rules on students in Park High School in Livingston. School boards thus must establish a neutral referee. In reality, eligibility rules do not exist to ensure that a district’s own students meet certain requirements. Such rules ensure that the students of a competing district abide by the rules. The MHSA is thus exercising a power over students that individual school boards never
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had. Therefore, although the Board adopted the MHSA rules as their own, the MHSA’s decision to exclude Grabow from participating in basketball, in effect, was not the Board’s own decision. The other school districts effectively made the decision. Section 20-3-210, MCA, only applies to “matters of controversy arising in the county” (emphasis added). Therefore, Grabow has no right to administrative appeal of MHSA decisions under § 20-3-210, MCA. To remedy this lack of administrative review, Grabow suggests that we order the Office of Public Instruction (the “OPI”) to review all of the MHSA’s decisions regarding eligibility. No authority, however, empowers the OPI to review decisions made by the MHSA. Without a specific legislative mandate, we will not create an additional level of administrative review. . . . While the MHSA may not be accountable to the OPI, any decisions made by the MHSA still must comply with the constitution. Simply creating an additional level of administrative review will not ensure this. Adding additional levels of review instead may work to a student’s detriment. An aggrieved student cannot seek judicial review of an administrative decision until the student has exhausted his or her administrative remedies. This rule allows administrative agencies to make a factual record and to correct any errors within their specific expertise before a court interferes. . . . As the system functions now, students may immediately seek judicial review after the MHSA has reached a final conclusion. Grabow, for instance, got what he ultimately sought by directly seeking judicial review: an injunction that allowed him to play basketball. In reaching our conclusion in this matter, we wish to emphasize that we neither endorse nor criticize the function of the MHSA or its eligibility rules. The sole issue before us was whether the Livingston School District could contract with the MHSA and thus be bound by its rules; we conclude that it can. Affirmed.
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School Officers
A school officer, as distinguished from an employee, is one who possesses a delegation of sovereign power of the state. An Indiana court85 has
defined a public office as “a position to which a portion of the sovereignty of the state attaches for the time being, and which is exercised for the benefit of the public.” The most important characteristic that may be said to distinguish an office from an employment is that the duties of an office must involve an exercise of some part of the sovereignty; there are powers and duties conferred by the legislature or the constitution. The duties must be performed independently, without the control of a superior power, unless statute provides for a subordinate office. Other characteristics that typically identify the office are a permanency or continuity of office, a required oath of office, and a procedure for removal that is usually fixed by statute. In addition, employees may exercise only ministerial powers and have no authority to exercise discretionary powers. A superintendent of a local school district is, in most states, considered an employee. A case in point is that of a local superintendent in California who was discharged by the board of education and claimed he could be discharged only by the grand jury since he was a school officer. The school code provided that the school board shall “elect” a superintendent for a four-year term. Other provisions of the code said the school board may “employ” a superintendent. The superintendent in this case asserted that the term elect was indicative of public office. The court, however, held that the terms elect and employ in this case meant the same thing. The court further pointed out that the position of superintendent did not exercise a sovereign power, was not created by the constitution or statute, and that statutes did not impose independent police power duties upon the individual.86 Public officers are not allowed to hold two offices that are in conflict. Offices may be incompatible when one exercises control over the other, one office is subordinate to another, or the offices are held in more than one branch of the government at the same time. For example, a judge cannot also be a prosecuting attorney, a legislator cannot also be a school board member, and a governor cannot also be a legislator. Extending this principle further, it has been held that teachers, even though they are only employees, cannot also serve as board members in the same school district.87
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School Officers
Some state constitutions may say that a person cannot hold two lucrative offices regardless of whether one is subordinate to the other. The Indiana Constitution provides: “No person holding a lucrative office or appointment under the United States or under this State, shall be eligible to a seat in the General Assembly; nor shall any person hold more than one lucrative office at the same time, except as in this Constitution expressly prohibited. . . .”88 Such “lucrative offices” have been held to prevent a person from serving both as a justice of the peace and a school board member, or to be sheriff while serving as a school board member. Nearly all states have statutes that prevent public officers from having an interest in contracts made with the agencies they administer. A case illustrating a conflict of interest occurred when a board member with an interest in an insurance company wrote a policy for his own school district. The court held that this board member could be removed because he had wrongfully gained advantage through his public position.89 A conflict of interest may be in the form of nepotism. Nepotism can be prohibited by common law, statute, or state constitutional provision, and is defined by the courts as the “bestowal of patronage by public officers in appointing others to positions by reason of blood or marital relationship to the authority.”90 Thus, a violation may occur where a school board appoints the blood kin or spouse of a board member to a position with the schools. A public office, theoretically, is a public duty; an officer must have the consent of the governing power before he or she can resign. In other words, a public office is held at the will of both parties, and the public has a right to the services of its citizens. Therefore, to be valid, a resignation must be accepted. Without acceptance, the resignation is of no effect, and the officer remains in office.91 Although this is one theory of vacation of a public office, some states provide for an “absolute” right to resign.92 In states in which the officer has an “absolute” right to resign, if he or she tenders a resignation, he or she cannot withdraw it. There is immediate unconditional acceptance. In states that follow the “public duty” theory, a resignation probably can be withdrawn prior to acceptance or prior to an effective date if the resignation specifies such a date.
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An Illinois court has held that resignations in advance are not legal. In a case in which a mayor required board members to put resignations in writing at the time of appointment, and the mayor later accepted them, the court said that such resignations were invalid because they were not contemplated by the law.93 Statutes provide the procedure to be used for the removal of public officers. In the absence of statute, removal is an incidental power of the appointing agency. For removal for cause, only a notice and a hearing are generally required. Cause may be malfeasance; improper or illegal performance of duties; or breach of good faith, inefficiency, and incapacity. A public officer cannot be removed during a term of office when the term is fixed by statute, unless for cause. In a case in which school board members took “kickbacks” from a contractor in violation of a competitive bid law, the court removed the board. The court held that even in the absence of statute, the board members could be punished under common law for willful misconduct in office.94
Constitutional Prohibition of Nepotism Is Violated Where School Board Enters into Teaching Contract with Spouse of Board Member
Smith v. Dorsey Supreme Court of Mississippi, 1988. 530 So.2d 5.
EN BANC. On Petition for Rehearing Griffin, Justice, for the Court. In this appeal this Court is asked to construe Section 109 as applied to contracts of teachers whose spouses are school board members. Stated differently, may a local school board contract with spouses of its members? Proceedings in the lower court were held on October 9, 1986. Testimony at trial and stipulated exhibits include documents issued to defendants by the Secretary of State certifying them as Claiborne County School Board members; contracts for employment for their spouses—Jo Anne
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Collins Smith, Mary Jennings, Ernestine Williams and Catherine Knox—as teachers in the Claiborne County School District, at the time defendants served as board members; the teachers’ payroll records from 1980–1986; and minutes of the Claiborne County School Board from 1980–1986. On October 10, 1986, the chancellor entered an order finding all defendants to be in violation of Section 109. He further adjudicated the defendants’ spouses’ contracts to be null and void, and that each defendant had an indirect interest in these contracts as he had been a Trustee of the Claiborne County Board of Education when said Board approved one or more contracts for the employment of the defendants’ spouses. Finally, the chancellor ordered claims of restitution be made against the spouses of the defendants because of the Section 109 violations. The Court found that these violations as to all defendants and their spouses had existed for several years up to and including the present date. This appeal followed. Article 4, Section 109, of the Mississippi Constitution of 1890 provides: No public officer or member of the legislature shall be interested, directly or indirectly, in any contract with the state, or any district, county, city or town thereof, authorized by any law passed or order made by any board of which he may be or may have been a member, during the term for which he shall have been chosen, or within one year after the expiration of such term.
In Frazier . . . [514 So. 2d 675 (Miss. 1987)] at 693, we said that this section prohibits any officer from: (a) having any direct or indirect interest in any contract (b) with the state or any political subdivision (c) executed during his term of office or one year thereafter, and (d) authorized by any law, or order of any board of which he was a member. The chancellor found that each defendant had an indirect interest in his spouse’s contract as prohibited by Section 109. We would agree. . . . However, without hesitation we find that logic dictates some manifest interest by appellants herein in the public school employment contracts of their wives. Appellants are directly
responsible for the hiring and firing of their spouses. Additionally, the record indicates that these school board members share fully in the process behind which the salaries are awarded to public school teachers in their district. This is not to say that we question the integrity or fairness of these board members in any way; we simply recognize that each has an indirect interest in his wife’s contract, which violates the constitutional provision. Next, we address the question of restitution ordered by the lower court and brought up on appeal. In the trial below plaintiffs and appellees herein neither plead nor raised the question of any bad faith committed by appellants for their role in the employment of their spouses. Nor did the chancellor make any finding of such. In our review of the record, we can see no allegation by these Claiborne County taxpayers that they did not receive value for services performed by the teachers, whose time of employment ranged from two (2) to thirty-three (33) years. Further, in at least one instance the record shows that a spouse of one board member had been teaching long before his election to that body. We have no doubt that such circumstances involving husband and wife teams in which one teaches and the other serves as a member of the school board are commonplace across this state, with no thought to any wrongdoing by the parties involved. The record reflects that the conduct of the defendants here had been the general practice in Claiborne County for many years, and we would concede that a similar case could be made in many other counties of the state. The claim for restitution, however, should be denied on other grounds. There is no way the parties can be put back in their original position before the teaching contracts were entered. For restitution to be equitable there would have to be some way of restoring to the teachers the value of the services they have rendered to the schools. Obviously, this cannot be done. To require restitution under the facts of this case would place these school teachers in a position where they would have served as public school teachers without pay, and in several instances for a number of years. The equitable remedy of restitution should not be enforced in such an inequitable way.
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School Officers
We hold that the above premise, coupled with the fact that there is no allegation or finding of bad faith on the part of the appellants, would make it grossly inequitable to require restitution on the peculiar facts presented here. . . . We, therefore, uphold the chancellor’s order finding appellants herein have been and are in violation of Sec. 109; declaring the contracts of appellants’ spouses to be null and void; and enjoining any further payment of salaries, etc., to said spouses while appellants remain as members of the Board of the Claiborne County School District and for a period of one year after the defendants shall leave their official capacities. . . .
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interest. Moreover, the statute does not operate to deny either procedural or substantive due process of law. School board members were allowed to serve out their elected terms, thus there was no deprivation of any perceived property interest. Chapman v. Gorman, 839 S.W.2d 232 (Ky. 1992). 3. Anti-nepotism policy of public vocational school that prohibits married couples from working together is not unconstitutional. The rule was rationally related to legitimate goals, including avoiding friction if a marriage broke down, cutting down on social fraternization, promoting collegiality among teachers, and easing the task of managing teachers. Montgomery v. Carr, 101 F.3d 1117 (6th Cir. 1996).
CASE NOTES Powers of Public Officer. Limitations on authority; extent of powers and duties: Public officers may exercise only that power which is conferred upon them by law. . . . The powers and duties of public office are measured by the terms and necessary implication of the grant of constitutional or statutory authority; . . . in this regard, it has sometimes been stated that public officers have only those powers expressly granted . . . or necessarily implied . . . by statute, and that any act of an officer, to be valid, must find express authority in the law . . . or be necessarily incidental to a power expressly granted. . . . 63C Am.Jur.2d Public Officers and Employees § 231.
Nepotism. 1. A state criminal statute prohibiting “selfdealing and nepotism” is violated by a county school superintendent who nominates his wife for a central administration position. West Virginia Education Association v. Preston County Board of Education, 171 W.Va. 38, 297 S.E.2d 444 (1982). 2. An anti-nepotism statute precluding relatives of school employees from serving as members of a school board does not inflict significant injury on the First Amendment rights of voters or school board candidates, restricting the voters’ choice of candidates or a candidate’s right to run in school board election. Neither does the statute deny equal protection of the law, because it is rationally related to a legitimate state interest in avoiding conflicts of
Conflict of Interest. 1. A conflict of interest still exists even though a school board member cast a negative vote against his wife’s employment as a teacher in the school district. The board member ’s attempt to “insulate” himself by voting against his wife was insufficient to protect him from constitutional and statutory prohibitions against any direct or indirect personal interest in a public contract. The board member and his wife were required to make restitution to the school board for money paid to the wife. Waller v. Moore ex rel. Quitman County School District, 604 So.2d 265 (Miss. 1992). 2. A chief state school officer may, in the exercise of statutory power, remove a local school board member from office for conflict of interest where a due process hearing found substantial evidence to that effect. In this case, a school board member who operated a building and a home supply store received credits from a paint manufacturer for assisting in acquiring paint sales to the school district. State Board of Elementary and Secondary Education v. Ball, 847 S.W.2d 743 (Ky. 1993). 3. No conflict of interest exists where the husband of a public school teacher serves in the state legislature. The fact that the spouse, while serving in the legislature, votes on general public school laws and educational appropriations does not create a constitutional conflict. Frazier v. State by and through Pittman, 504 So.2d 675 (Miss. 1987).
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School Elections
Legal issues relating to school elections are nearly as diverse as the general election laws of the state. No attempt is made here to fully encompass this wide body of law, but it is necessary to generally examine election law with regard to reapportionment precedents and to those legal requirements pertaining to compliance with election statutes. Until 1962, the view of the courts prevailed in that legislative representation and how it was apportioned throughout a state was a matter for only the legislature to determine. Malapportionment and rotten boroughs were of grave concern to many, and the problems became more acute as population mobility left some voters with very little legislative power, whereas others reaped disproportionately great political muscle. Judicial precedent, which permitted this to transpire, was found in Colegrove v. Green,95 in which case Justice Frankfurter, writing for the Supreme Court, opted to keep the courts out of the “political thicket.” Frankfurter said: To maintain this action would cut very deep into the very being of Congress. Courts ought not to enter this political thicket. The remedy for unfairness in distributing is to secure state legislatures that will apportion properly, or to invoke the ample powers of Congress. . . . The Constitution has left the performance of many duties in our governmental scheme to depend on the fidelity of the executive and legislative action and, ultimately, in the vigilance of the people in exercising their political rights.96
After this decision, it soon became clear that the problems of apportionment would not be corrected by the legislators themselves, and the people were powerless to fully exercise their political rights. In reevaluation of its position, the Supreme Court handed down a new precedent in Baker v. Carr97 in 1962. In so doing, the court found that the Equal Protection Clause was violated by the resulting discrimination against some voters, which was not reasonable or rational, but instead was arbitrary and capricious. This case has had bearing on school district elections in the same manner as it has influenced statewide elections; if officials are elected by popular vote, then the Constitution ensures “that each person’s vote counts as
much, insofar as it is practicable, as any other person’s.”98 Subsequent litigation regarding voting rights has led to the courts establishing valuable reference points for government officials to follow. First, because of the one person–one vote standard, there is always a presumption in favor of enfranchisement. For government action to result in disenfranchisement requires that the government carry the burden of showing a compelling reason for its action.99 Second, Supreme Court rulings prohibit, by indirect means, the debasement or dilution of the weight of a citizen’s vote.100 Even though there is a strong presumption in favor of enfranchisement, there is no per se rule against selective disenfranchisement. In the case of “special interest” elections, the Supreme Court has held that the government can limit those who vote to those who have the required special interest.101 For example, the Supreme Court has held that the voters for a water conservation board of directors can be limited to landowners as a special interest group if apportioned according to assessed valuation. 102 Similarly, there may be a valid abridgement of the one person–one vote principle if the rationale includes a “special interest” where votes for directors of an agricultural improvement and power district are apportioned based on acreage.103 On the other hand, where there is no “special interest” involved, dilution of the voters’ franchise is obviously unconstitutional. The Supreme Court has invalidated a Texas constitutional provision that restricted the franchise for a bond issue to residents who had property listed on the tax rolls.104 Such means of disenfranchisement in the absence of valid special interests has been held unconstitutional in school cases where a state statute limited the franchise in school board elections to those who owned real property or had children enrolled in school,105 and where a statute limited membership on a school board to those residents owning real property in the school district.106 The U.S. Court of Appeals for the Sixth Circuit has held that allowing inclusion of out-of-district city voters is an unconstitutional “dilution” of rural county school district residents’ franchise, because city voters had a “special interest” due to the fact that a portion of their tax money went
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School Elections
to support the rural district schools.107 The court also considered the effects of the dilution and concluded that it was unlikely that city residents were in sufficient numbers to control the county school board. 108 On the other hand, the same federal court held that where nonresident city voters did not have a “special financial interest” in the county school system and the sheer number of city voters was sufficient to overwhelm the county voters in a countywide school board election, the election was invalid.109 Thus “special interest” elections may be valid if rational, even though a dilution of the franchise for resident voters may result, yet there is, however, a strong presumption against debasement of the weight of a resident citizen’s vote. From these election precedents, one can draw certain basic rules. First, the conception of political equality, one person–one vote, is required by the Fourteenth, Fifteenth, Seventeenth, and Nineteenth Amendments of the U.S. Constitution. Second, the right of suffrage cannot be denied by debasement or dilution of the weight of a citizen’s vote. Third, the presumption of enfranchisement is particularly powerful when a voter can show that he or she lives in the relevant political jurisdiction. Fourth, government can conduct “special interest” elections, but for such elections to be valid, the government must bear an onerous proof burden to demonstrate that the purpose is sufficiently different and unique to forego a universal franchise of resident voters.110
Equality of Voting Power Is Required in Local District Elections
Hadley v. Junior College District of Metropolitan Kansas City, Mo. Supreme Court of the United States, 1970. 397 U.S. 50, 90 S. Ct. 791.
Mr. Justice BLACK delivered the opinion of the Court.
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This case involves the extent to which the Fourteenth Amendment and the “one man, one vote” principle apply in the election of local governmental officials. Appellants are residents and taxpayers of the Kansas City School District, one of eight separate school districts that have combined to form the Junior College District of Metropolitan Kansas City. Under Missouri law separate school districts may vote by referendum to establish a consolidated junior college district and elect six trustees to conduct and manage the necessary affairs of that district. The state law also provides that these trustees shall be apportioned among the separate school districts on the basis of “school enumeration,” defined as the number of persons between the ages of six and twenty years, who reside in each district. In the case of the Kansas City School District this apportionment plan results in the election of three trustees, or 50 percent of the total number from that district. Since that district contains approximately 60 percent of the total school enumeration in the junior college district, appellants brought suit claiming that their right to vote for trustees was being unconstitutionally diluted in violation of the Equal Protection Clause of the Fourteenth Amendment. The Missouri Supreme Court upheld the trial court’s dismissal of the suit, stating that the “one man, one vote” principle was not applicable in this case. . . . [F]or the reasons set forth below we reverse and hold that the Fourteenth Amendment requires that the trustees of this junior college district be apportioned in a manner that does not deprive any voter of his right to have his own vote given as much weight, as far as is practicable, as that of any other voter in the junior college district. . . . This Court has consistently held in a long series of cases that in situations involving elections, the States are required to insure that each person’s vote counts as much, in so far as it is practicable, as any other person’s. We have applied this principle in congressional elections, state legislative elections, and local elections. The consistent theme of those decisions is that the right to vote in an election is protected by the United States Constitution against dilution or debasement. While the particular offices involved in these cases have varied, in each case a constant factor is the decision of the government
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to have citizens participate individually by ballot in the selection of certain people who carry out governmental functions. Thus in the case now before us, while the office of junior college trustee differs in certain respects from those offices considered in prior cases, it is exactly the same in the one crucial factor—these officials are elected by popular vote. . . . While there are differences in the powers of different officials, the crucial consideration is the right of each qualified voter to participate on an equal footing in the election process. It should be remembered that in cases like this one we are asked by voters to insure that they are given equal treatment, and from their perspective the harm from unequal treatment is the same in any election, regardless of the officials selected. . . . It has also been urged that we distinguish for apportionment purposes between elections for “legislative” officials and those for “administrative” officers. Such a suggestion would leave courts with an . . . unmanageable principle since governmental activities “cannot easily be classified in the neat categories favored by civics texts,” . . . and it must also be rejected. We therefore hold today that as a general rule, whenever a state or local government decides to select persons by popular election to perform governmental functions, the Equal Protection Clause of the Fourteenth Amendment requires that each qualified voter must be given an equal opportunity to participate in that election, and when members of an elected body are chosen from separate districts, each district must be established on a basis that will insure, as far as is practicable, that equal numbers of voters can vote for proportionally equal numbers of officials. . . . Although the statutory scheme reflects to some extent a principle of equal voting power, it does so in a way that does not comport with constitutional requirements. This is so because the Act necessarily results in a systematic discrimination against voters in the more populous school districts. This discrimination occurs because whenever a large district’s percentage of the total enumeration falls within a certain percentage range it is always allocated the number of trustees corresponding to the bottom of that range. Unless a particularly large district has
exactly 331/3 percent, 50 percent or 662/3 percent of the total enumeration it will always have proportionally fewer trustees than the small districts. As has been pointed out, in the case of the Kansas City School District, approximately 60 percent of the total enumeration entitles that district to only 50 percent of the trustees. Thus while voters in large school districts may frequently have less effective voting power than residents of small districts, they can never have more. Such builtin discrimination against voters in large districts cannot be sustained as a sufficient compliance with the constitutional mandate that each person’s vote count as much as another’s, as far as practicable. . . . We have said before that mathematical exactitude is not required . . . but a plan that does not automatically discriminate in favor of certain districts is. In holding that the guarantee of equal voting strength for each voter applies in all elections of governmental officials, we do not feel that the States will be inhibited in finding ways to insure that legitimate political goals of representation are achieved. We have previously upheld against constitutional challenge an election scheme that required that candidates be residents of certain districts that did not contain equal numbers of people. . . . Since all the officials in that case were elected at large, the right of each voter was given equal treatment. We have also held that where a State chooses to select members of an official body by appointment rather than election, and that choice does not itself offend the Constitution, the fact that each official does not “represent” the same number of people does not deny those people equal protection of the laws. . . . And a State may, in certain cases, limit the right to vote to a particular group or class of people. . . . But once a State has decided to use the process of popular election and “once the class of voters is chosen and their qualifications specified, we see no constitutional way by which equality of voting power may be evaded.” . . .
CASE NOTES 1. The Federal Voting Rights Act of 1965 was enacted to eradicate discriminatory voting practices. Under Section 2 of the Act,
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School Elections
2.
3.
4.
5.
states and their political subdivisions are barred from maintaining discriminatory voting practices or standards and procedures. This section may be violated if the electoral system is not open to equal participation based on race. Section 5 of the Act identifies particular states and their political subdivisions as covered jurisdictions. In these covered jurisdictions, new election laws cannot be passed unless they are shown to be nondiscriminatory. Section 5 of the Act establishes preclearance procedures requiring federal district court approval. Preclearance requires, among other things, that any new electoral system must not have a “dilutive impact” that will reduce or deny voting power of African American voters. See Reno v. Bossier Parish School Board, 520 U.S. 471, 117 S. Ct. 1491 (1997). A statute limiting the franchise in school elections to parents of children enrolled in the public schools and owners and lessees of taxable real property denies equal protection. Kramer v. Union Free School District No. 15, 395 U.S. 621, 89 S. Ct. 1886 (1969). Similarly, the Supreme Court has held unconstitutional a statute that limited electors in a public utility bond election to only “property taxpayers.” Cipriano v. City of Houma, 395 U.S. 701, 89 S. Ct. 1897 (1969). The Civil Rights Acts of 1957 and 1960 protect voters in federal elections from intimidation and interference and require state election officials to preserve federal election records. 42 U.S.C.A. §§ 1971(b), 1974–1974(b). Also, state laws requiring literacy to vote cannot be ambiguous and vague, violating the Fifteenth Amendment. Smith v. Allwright, 321 U.S. 649, 64 S. Ct. 757 (1944). The one person–one vote standard is not applicable to appointive boards. Sailors v. Board of Education of Kent County, 387 U.S. 105, 87 S. Ct. 1549 (1967). Where there is no fraud, bad faith, or misleading of the voters, it is a well-settled rule that statutory provisions that are treated as mandatory before an election will be construed as directory after the election. Lindahl v. Independent School District No. 306, 270 Minn. 164, 133 N.W.2d 23 (1965).
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6. A Minnesota court, in Bakken v. Schroeder, 269 Minn. 381, 130 N.W.2d 579 (1964), stated that challenges to consolidation proceedings will not serve to invalidate the election unless there is proof of prejudice and that statutory requirements are treated as directory rather than mandatory when election proceedings are contested following the election. In a case involving a challenge, the court quoted an earlier decision, Erickson v. Sammons, 242 Minn. 345, 65 N.W.2d 198 (1954), and said: It is the general rule that, before an election is held, statutory provisions regulating the conduct of the election will usually be treated as mandatory and their observance may be insisted upon and enforced. After an election has been held, the statutory regulations are generally construed as directory and such rule of construction is in accord with the policy of this state, which from its beginning has been that, in the absence of fraud or bad faith or constitutional violation, an election which has resulted in a fair and free expression of the will of the legal voters upon the merits will not be invalidated because of a departure from the statutory regulations governing the conduct of the election except in those cases where the legislature has clearly and unequivocally expressed an intent that a specific statutory provision is an essential jurisdictional prerequisite and that a departure therefrom shall have the drastic consequence of invalidity. . . .
7. The Supreme Court of Texas, in McKinney v. O’Conner, 26 Tex. 5 (1861), has stated the rule for elections as rules prescribing the manner in which the qualified electors shall hold the election, at the time and place designated, and those prescribing the manner in which their act, when done, shall be authenticated, so as to import verity on its face, are directory. Irregularities in their observance will not vitiate an election, unless they be such that the true result of the ballot cannot be arrived at with reasonable certainty. The ultimate test of the validity of an election is involved in the questions: Did the qualified electors, at the time and place designated, acting in concert, either actively or by acquiescence, hold an election and cast their votes in the ballot box; and has it been done in a manner sufficiently conformable to the directions of the law, as that the true result can be arrived at with reasonable certainty?
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8. In a case contending a lack of sufficiency of notice for a special election, a Missouri court said that “[g]enerally, statutory provisions as to notice of special elections are mandatory, must be strictly followed, the failure to properly call a special election will invalidate it. . . . A special election, however, will not be vitiated by failure to comply strictly with the statutory requirements with respect to the giving of notice where the electors were in fact informed of the time, place, and purpose of the election and generally voted on the question submitted; where it is not shown that the electors did not participate in the election because of lack of notice or knowledge or that a different result would have obtained if the full statutory notice had been given. State v. Whittle, 401 S.W.2d 401 (Mo. 1966).
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School Board Meetings
A fundamental rule of school board meetings is that the meeting must be held within the geographic boundaries of the school district. The courts have traditionally been rather lenient concerning the procedure used by boards of education in meetings. Unless the rules of procedure are prescribed by statute, a board of education may establish its own rules of procedure. Where neither statutes nor adopted board procedures are used, the generally accepted rules of parliamentary procedure will control. As indicated, the courts are indulgent concerning procedure and will not insist on a specific set of rules. The court is primarily concerned that every board member has been given a right to be heard and to vote. The actual board meeting is an important prerequisite to an action by a board of education. Action taken separately or individually, by board members outside a board meeting, has no validity. Likewise, promises made by individual board members outside official meetings have no legal validity. However, a board of education, if it chooses, may ratify a previous individual commitment made by a board member. Official action at a later meeting is necessary for ratification.
Allegation That Board Had Made Decision Prior to Official Meeting Not Sustained by Facts
Aldridge v. School District of North Platte Supreme Court of Nebraska, 1987. 225 Neb. 580, 407 N.W.2d 495.
WHITE, Justice. Gary R. Aldridge appeals from an order of the district court for Lincoln County, Nebraska, granting summary judgment in favor of the appellees, the school district of North Platte and six members of its board of education. . . . The petition in this case attacked decisions made by the board in regard to the employment status of the superintendent of schools. On August 31, 1984, the superintendent was found guilty of third degree sexual assault. The board called a meeting on September 5, 1984, a week before the next scheduled meeting. The meeting was largely attended, and when the matter concerning the superintendent’s conviction arose, board member Linda L. Gale requested that there be no discussion on the subject. Dallas F. Darland, a board member, announced that he had been tendered a resignation by the superintendent and read aloud the letter, which stated that the superintendent would resign voluntarily in December. Darland moved to accept the offer to resign; the motion was seconded and passed. Board member Myra Satterfield then made a motion to suspend the superintendent from his duties with pay until his resignation was effective. The motion also was seconded and passed. There was no discussion of these motions except for the reading of the letter and the making of the motions. Aldridge’s petition alleges two causes of action: first, that a quorum of the board met with the attorney for the school district and discussed and made policy in violation of the public meetings law; and second, that the motion by
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School Board Meetings
Satterfield to suspend the superintendent with pay passed without public discussion based on the prior nonpublic briefing and meeting alleged in the first count. In his deposition Aldridge stated he based his allegations that the public meetings law was violated on two facts: that a major motion passed without discussion and that a witness saw a quorum (four of six) of the board members at the school board attorney’s office earlier in the day of the September 5 meeting. The witness, Kathy Seacrest, testified on deposition that she saw four board members in the “entryway” of the attorney’s office and that two of them were leaving as she left. She heard no discussion or comments made by the members. A reading of the depositions of the board members exposes no discrepancies in their stories. The four members met with the attorney to discuss the legal ramifications of various options to remove the superintendent from office. Each feared a long legal battle and was informed that the superintendent had due process and contractual rights in his employment. Each was aware that certain of the benefits would vest in December and that the superintendent knew this. They specifically denied that a quorum ever met to decide policy and testified that they left the office having made no decision in the matter. . . . At oral argument counsel for Aldridge argued that Gale’s statement limiting discussion on the issue was a violation of the public meetings law. The petition shows two causes of action: that an illegal meeting of a quorum of the board took place prior to the public meeting and that, without public discussion, the board passed a motion based on the previous illegal deliberations. The petition does not maintain that public discussion may not be limited or prohibited by the board at its meetings. See Neb. Rev. Stat. § 84-1412(2) (Cum. Supp. 1984). . . . Appellant’s counsel conceded at argument that the attorney for the board could advise members two at a time without violating the public meetings law. However, he still argues that the lack of discussion at the meeting implies that the real decision was made illegally prior to the meeting. The appellant based his case on Seacrest’s statements that she saw four board members
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in the attorney’s office. She corroborated their statements that two were leaving as two were waiting. Obviously, no meeting of the board members in which a quorum was present occurred. . . . The appellees’ testimony establishes that no improper meeting occurred. The appellant then had the burden to introduce evidence in opposition to the motion for summary judgment that would tend to prove that a meeting did occur. . . . He could not produce such evidence. Since no issue of fact existed, the motion for summary judgment was properly granted in favor of the appellees. Affirmed.
CASE NOTES 1. A teachers’ association can videotape proceedings of a school board meeting. A New Jersey court, in upholding videotaping of a board meeting, reasoned that video cameras and recorders are so commonplace today that one would have great difficulty showing that their use would in some manner impede the deliberations or harm the public interest. On the school board’s behalf, the court did say that the videotaping equipment could not be used in such a manner as to disrupt the meeting. The court, though, was not sympathetic with school board members who wanted to ban the cameras merely because the cameras’ presence made the members feel uncomfortable or inhibited. Maurice River Board of Education v. Maurice River Township Teachers Ass’n, 193 N.J. Super. 488, 475 A.2d 59 (N.J. App. Div. 1984). See also Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 104 S. Ct. 774 (1984). 2. Procedure. As pointed out earlier, courts are rather flexible as to the procedure used by local school boards. In 1960, a New Hampshire court upheld an action by a school board when there was considerable irregularity in parliamentary procedure. The court said that a board’s action could not be voided so long as no statutes were violated. If the machinery of government were not allowed a little play in its joints, it would not work. Lamb v. Danville School Board, 102 N.H. 569, 162 A.2d 614 (1960).
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3. Executive Sessions. Executive sessions, where the board retires to privacy, may be used for discussion, but not for action. Where a board met in open session, adjourned for an hour or so, reconvened in executive session, and then met again in open session, and teachers’ contracts were terminated in the open session after discussion in the executive session, the teachers sued, questioning the validity of the action. The court said the meeting was a legal one, despite the fact that the contracts were discussed in the executive session. The requirements of the law were met when the official action of the board was taken in open session. Alva v. Sequoia Union High School District, 98 Cal. App. 2d 656, 220 P.2d 788 (1950); Dryden v. Marcellus Community Schools, 401 Mich. 76, 257 N.W.2d 79 (1977). In a later case, in Illinois, the board of education voted in an executive session to condemn land. The action was challenged, and the court held that the action in the executive session was “not an effective exercise of the power of the board to commence condemnation.” However, since the board had later ratified the action in an official meeting, the condemnation proceedings were legal. Goldman v. Moore, 35 Ill.2d 450, 220 N.E.2d 466 (1966); see also State ex rel. Stewart v. Consolidated School District, 281 S.W.2d 511 (Mo. App. 1955). Boards of education should adopt rules of procedure, and when they do, they are bound by their own rules. In an early Kentucky case illustrating the binding force of a board rule, a board made a rule that purchases of supplies and materials of $500 or less could be made without bid. Pianos were purchased in an amount of $2,500 without bids. The membership of the board changed, and the new board refused to pay for the pianos. The vendor sued, and the action of the vendor was unsuccessful. The court held that the school board rules had the force of law upon the board itself, which the board could not disregard. Montenegro-Riehm Music Co. v. Board of Education of Louisville, 147 Ky. 720, 145 S.W. 740 (1912). An Ohio school board passed a rule that provided that bus drivers involved in five accidents causing police investigation shall be dismissed. A bus driver arrived home from
a vacation trip at three in the morning and arose four hours later to drive a school bus. The bus left the road and struck an embankment 17 feet from the highway. No one was injured. The board dismissed the driver, and the driver sued. The court held for the driver, saying that the board’s rule of five accidents was “unfortunate.” Since there was evidence of only one accident and even though the discharge of the driver was desirable, the board could not discharge him because of its own regulation. State ex rel. Edmundson v. Board of Education, 2 Ohio Misc. 137, 201 N.E.2d 729 (Com. Pl. 1964). 4. Quorum. A quorum under common law is a simple majority of the total membership. In the absence of statute, the common law rule will be applied. Gunnip v. Lautenklos, 33 Del. Ch. 415, 94 A.2d 712 (1953). See also Matawan Regional Teachers Ass’n v. Matawan-Aberdeen Regional Board of Education, 223 N.J. Super. 504, 538 A.2d 1331 (1988). A Kentucky court has held that where there was one vacancy on a five-member board, the four remaining members represented a quorum. Trustees v. Brooks, 163 Ky. 200, 173 S.W. 305 (1915). The number required for a quorum is not reduced by a reduction in the membership due to vacancies. This means that in the case of a five-member board that has three vacancies, the two remaining board members cannot take action. 5. Voting. Boards, in the absence of statute, may establish voting procedures (e.g., voice vote, show of hands, secret ballot). There is no authority for a board member to allow someone else to vote for him or her. When a board member refuses to vote, the general rule is that this vote is considered as an assent to the will of the majority. Mullins v. Eveland, 234 S.W.2d 639 (Mo. App. 1950). In a Tennessee case in which a board of seven members considered a motion to execute a contract, three voted in favor, two opposed, and two did not vote. The court said the motion carried by a vote of five to two. Those not voting were considered as assenting to the majority. Collins v. Janey, 147 Tenn. 477, 249 S.W. 801 (1923). Common law does not require that individual votes be recorded in the board
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Open Meetings and Public Records Laws
minutes so long as the totals are made a part of the record. Diefenderfer v. Budd, 563 P.2d 1355 (Wyo. 1977). 6. Minutes and Records. Courts hold that the school board can act only through their minutes. The minutes of a board meeting are the only legal evidence of what has transpired during the meeting. An Illinois court has said that “[p]roper minutes and records should be kept by a board of education to the end that the persons who are carrying the tax load may make reference thereto and the future boards may be advised of the manner of disposition of questions that have arisen.” Hankenson v. Board of Education, 10 Ill. App.2d 79, 134 N.E.2d 356 (1956), rev’d on other grounds, 10 Ill. 2d 560, 141 N.E.2d 5 (1957). A board secretary may record minutes after the meeting has adjourned. Kent v. School District, 106 Okl. 30, 233 P. 431 (1925). Memoranda kept by the board secretary cannot be examined by the public prior to transcribing the minutes. In a 1954 case, on the day after a board meeting, citizens requested permission to examine the minutes. The school board secretary had not as yet transcribed his notes and refused permission to the group. The court upheld the board and said “the clerk’s untranscribed notes reasonably are not classifiable as a public writing . . . whereas the transcribed minutes, in final form, but awaiting only approval and placement in the journal, are a public writing. . . .” Conover v. Board of Education, 1 Utah 2d 375, 267 P.2d 768 (1954). The form and wordage used in school board minutes are looked upon with indulgence by courts. “Although they may be unskillfully drawn, if by fair and reasonable interpretation their meaning can be ascertained, they will be sufficient to answer the requirements of law.” Noxubee County v. Long, 141 Miss. 72, 106 So. 83 (1925). A public records law may require that names of applicants screened for a superintendent’s position be released to the press. Attorney General v. School Committee of Northampton, 375 Mass. 127, 375 N.E.2d 1188 (1978). 7. Notice of Meetings. In order for a board meeting to be legal, proper notice must be given and all members must be notified in time to
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be given an opportunity to participate. A reasonable time in advance of a meeting for notice to be given is “sufficient time to the party notified for preparation and attendance at the time and place of such meeting.” Green v. Jones, 144 W.Va. 276, 108 S.E.2d 1 (1959). When a board meeting was called with a few minutes’ notice, making the chairman unable to attend, and the board employed a teacher, the court held the employment invalid. “[The chairman] was hardly bound to quit the work he had started to do and rush over to attend a suddenly called meeting of the board. The notice should have given him reasonable opportunity to attend. It did not.” Wood v. School District, 137 Minn. 138, 162 N.W. 1081 (1917). Notice should include the time and the place of the meeting. Members should be notified of any changes. When a meeting is held without notice, and all members are present and consent to act, the requirement of notice is waived. Notice is not required for regular board meetings because members have constructive notice. For example, boards usually establish a regular meeting date each month for which special notice is not required. Notice is only required for special board meetings. 8. Bylaws. In the absence of a statute to the contrary, a board’s bylaws are binding on the board. School boards cannot set aside or render nugatory a bylaw by suspension of a mere rule of order for the convenience of transacting business. A bylaw must be changed using appropriate procedures, with notice, and following proper regulatory processes. See Matawan Regional Teachers Ass’n v. Matawan-Aberdeen Regional School District Board of Education, 223 N.J. Super. 504, 538 A.2d 1331 (N.J. App. Div. 1988).
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Open Meetings and Public Records Laws
In recent years, state legislatures have sought to make public board meetings more open and public records more accessible to the public. Even though there has always been a general common
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law right of the citizenry to be informed through openness of public meetings and public records, actual implementation of the ideal often fell short of the mark. Technicalities regarding when meetings were open, the justification for executive sessions, notice, and the logistics of access to public records have presented problems that legislatures have attempted to resolve by enactment of statutes specifically governing meetings and records. As a result of this legislation, much new litigation has transpired that endeavors to interpret the meaning of the statutes. The most important difference between the traditional common law covering public meetings and the new statutes is that public school boards could adjourn to executive session to discuss virtually any matter bearing on the operation of the schools, whereas the new laws narrowly define the purposes and procedures for the conduct of closed or executive sessions. Most Sunshine laws require both deliberations and actions to be taken in public, the exception being only for a limited number of sensitive matters that would, if aired in public, be personally detrimental to some party or would harm the public interest. The underlying purpose of both open meeting and public records laws is to display to the public marketplace and subject to public scrutiny the truth about official acts of public servants.111
OPEN MEETINGS Most Sunshine laws closely track the common law by permitting executive sessions of school boards for information and strategy concerning collective negotiations or bargaining, purchase or lease of real property, consultation with an attorney in connection with litigation, business pertaining to lawful privilege, or confidentiality regarding investigations of possible law violations. Yet, the actual official actions of boards taken by vote of the membership must be conducted in public. In this regard, a Pennsylvania court permitted a school board to take a “straw vote” in executive session in order to reduce the number of applicants, from five to three, for the position of school superintendent in the district. The court said that “[j]ust because a vote is taken in executive session does not mean that it is an ‘official
action.’ . . .112 To be a vote constituting official actions as defined [in] . . . the Sunshine Act, it must be a matter that commits the agency to a course of conduct.” A “straw vote,” according to this court, came within the definition of “discussion and deliberation” not constituting “official action.”113 In determining whether a meeting of a school board violates a state Sunshine law, the court will look at the decision making as a whole to determine if the citizenry has been deprived of a meaningful opportunity to respond or to hold officials accountable for their actions. A West Virginia court has pointed out that courts will normally look for certain indicators of an illegal meeting, to wit. First, the content of the discussion is crucial to a policy decision. School board members can gather in complete privacy at will, and the meeting will not violate the law if matters discussed are entirely unrelated to school business. Second, the number attending a meeting is important. If only two of 10 board members attend a meeting, it is far less suspect than if eight of 10 attend; thus, the percentage of the public body present is important. Third, the identity of those not attending is significant, especially those absent in opposition to an issue before the board. Fourth, the intentions of members are important. Fifth, the nature and degree of planning for the meeting by those involved is important. If the meeting is by happenstance, legal objection to the meeting is reduced. Sixth, the duration of the meeting is of importance; longer meetings are more suspect. Seventh, the setting and opportunity for private discussion are significant. Eighth, regarding the possible effects on decision making when having the meeting in private, does the situation inhibit meaningful opportunity to respond or does it lessen public accountability of the officials? In enumerating this list of considerations, the West Virginia court concluded that although they are all relevant, none of the criteria are individually controlling. Using these criteria, this court invalidated a vote taken as a result of a private meeting held by several members of a school board when evidence indicated that (a) a quorum of the board was present; (b) the gathering addressed the highly controversial matter of merger of
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Open Meetings and Public Records Laws
schools; (c) information was conveyed that was of great importance and sensitivity to the decision; and (d) the meeting was prearranged, took place in school board offices, was a two-hour meeting, and was on the day before a crucial board vote. Thus, the actual board vote taken in a public meeting a day later was found to be legally defective.114
School Committee’s Closed-Session Discussion and Approval of Drug Search Was Exempt from Open Meetings Law
Rhode Island Affiliate, American Civil Liberties Union, Inc. v. Bernasconi Supreme Court of Rhode Island, 1989. 557 A.2d 1232.
FAY, Chief Justice. This case comes before us on appeal from a Superior Court order granting the defendants’ motion to dismiss pursuant to Rule 12(b)(6) of the Superior Court Rules of Civil Procedure. The plaintiffs, Rhode Island Affiliate, American Civil Liberties Union (ACLU), and Steven Brown, Executive Director, contend that the trial justice erred in granting that motion. . . . On January 26 and February 12, 1987, the Chariho school committee (school committee) held regularly scheduled public meetings. During the meetings, the school committee voted unanimously to enter into closed executive session pursuant to G.L. 1956 (1984 Reenactment) § 42-46-5(a)(1) and (2). These provisions allow a public body to hold a closed meeting, in limited circumstances, following an affirmative vote of the majority of its members. On April 8, 1987, plaintiffs filed an action to impose civil fines against defendants, in their individual capacities and in their capacities as members of the school committee, for violations of the Rhode Island Open Meetings Law.
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Chapter 46 of title 42. The plaintiffs alleged, on information and belief, that the school committee discussed and approved a plan to search student lockers at the Chariho Regional JuniorSenior High School. Thereafter, state and local police conducted a search of approximately 800 lockers at the school. The plaintiffs maintained that these closed sessions of the school committee violated multiple provisions of the openmeetings law. . . . . . . [P]laintiffs aver that the school committee’s closed-session discussion and approval of a drug search is not a matter exempted from the requirement that meetings of a public body remain open to the public. Assuming, as required, that all allegations in the complaint are true, we find that the topic of a drug search falls within the statutory guidelines enunciated in §§ 4246-4 and 42-46-5. This topic clearly implicates security matters as contemplated by § 42-465(a)(3). Additionally, these closed sessions may involve or lead to investigative proceedings concerning allegations of civil or criminal misconduct. See § 42-46-5(a)(4). We believe that the sale and use of drugs in a school system represents a serious threat to the security, health, and welfare of a student body. It would be inconceivable for this court to find that the topic is not a legitimate concern for a closed session. Therefore, we hold that the discussion and approval of a drug search is exempted by §§ 42-46-4 and 42-46-5. . . . The plaintiffs further argue that the school committee violated § 42-46-6(b), as amended by P.L. 1984, ch. 372, § 1, which requires notice of agenda topics. In the present case, defendants did not include the matter of the drug search on the agenda for the January and/or February meetings. We may infer, however, that defendants provided adequate notice of the meetings pursuant to § 42-46-6(a) and (c). We note that any announcement of this subject matter would be self-defeating and hold that defendants’ action does not operate to their detriment. . . . For the reasons stated, the plaintiffs’ appeal is denied and dismissed. The judgment appealed from is affirmed, and the case is remanded to the Superior Court for further proceedings consistent with this opinion.
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CASE NOTES 1. The Montana Constitution has two components of Article II, Section 9. These are the right to examine documents and the right to observe the deliberations of public bodies. The court ruled that a spreadsheet that contained a rating system used to make a decision to close an elementary school was a public document. Bryan v. Yellowstone County Elementary School District No. 2, 60 P.3d 381 (Mont. 2003). 2. A Washington court ruled under the State Open Meeting Act that the term meeting has a broad definition. Elected officials can meet without being in a face-to-face situation. If they use e-mail for the purpose of making decisions, then this could constitute a meeting; however, the use or passive receipt of e-mail does not automatically constitute a “meeting.” Wood v. Battle Ground School District, 27 P.3d 1208 (Wash. Ct. App. 2001). 3. The gathering of school board members on occasion at various restaurants, sometimes before and sometimes after official board meetings, did not violate the Oregon Open Meetings Law even though, at times, a quorum was present. The court held that there was not a “convening of the body” of the board for the purpose of making “a decision or to deliberate toward a decision.” Harris v. Nordquist, 96 Or. App. 19, 771 P.2d 637 (1989). 4. A student suspension hearing before a school board must be open to the public if such is requested by the student or parent. Meetings may not be closed unless they are intended to evaluate the professional competency of an employee or to consider employment actions such as for hiring or dismissal. No exception is contained in the Iowa law for students. Schumacher v. Lisbon School Board, 582 N.W.2d 183 (Iowa 1998). 5. Where a quorum of school board members attended a meeting of another school board in an adjacent town where the topic discussed was a possible merger, the court ruled that the open meetings law was not violated because the board members were not “meeting for the purpose of exercising the school board’s responsibilities, powers or duties.” Paulton v.
Volkmann, 141 Wis. 2d 370, 415 N.W.2d 528 (Wis. Ct. App. 1987). 6. A Wisconsin court has held that failure to announce with specificity the reason for going into closed session did not violate the state’s open meetings law. State v. Van Lare, 125 Wis. 2d 40, 370 N.W.2d 271 (Wis. Ct. App. 1985). 7. The Open Meetings Act of Illinois has been held not to require notice in the school board agenda of topics to be considered in closed session. In so holding, the court expanded on the rationale for the openness of public boards as what provides the greatest “public advantage”: While we keep in mind that the purpose of the Act is to promote the openness of public business, we must not overlook the larger, overriding purposes of the Act within which the promotion of openness is subsumed and made a constituent part— aiding the conduct of the people’s business, or, in other words, securing public advantage. (People ex rel. Hopf v. Barger (1975), 30 Ill. App. 3d 525, 332 N.E.2d 649.) In promoting the ultimate goal of requiring public bodies to carry out their business in the manner most beneficial to the public they represent, there are occasions in which it is not to the public’s advantage that a public body carry on its business in a meeting open to the public. Therefore, it is not always possible for both of the above-stated purposes of the Act to be promoted in harmony. It is our belief that where the purposes of the Act cannot be promoted in harmony, priority should be given to the more dominant or overriding purpose. . . . Openness is in most circumstances an element fundamental in furthering public advantage; however, in some instances openness simply prevents or defeats public advantage. For example, consideration of topics concerning matters such as personal information, bargaining position, and negotiating strategy makes it necessary that a public body meet in private, lest it run the risk that the business undertakings will be rendered, for all practical purposes, ineffective and meaningless. Public knowledge of their officials’ intentions and actions resulting from compulsory public deliberative sessions when considering matters such as the purchase of real estate would destroy any advantage to be gained from negotiation and work a severe detriment upon the officers and the public they represent. . . . Gosnell v. Hogan, 179 Ill. App. 3d 161, 128 Ill. Dec. 252, 534 N.E.2d 434 (Ill. App. Ct. 1989).
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Open Meetings and Public Records Laws
8. Attorney-client privilege is normally an exception to open meetings requirements. When such a privilege would come into play is expressed by a Minnesota court: When a public body can show that litigation is imminent or threatened, or when a public body needs advice above the level of general legal advice, i.e., regarding specific acts and their legal consequences, then the attorney-client exception applies. Star Tribune v. Board of Education, Special School District No. 1, 507 N.W.2d 869 (Minn. Ct. App. 1993).
9. The Michigan Open Meetings Act has been interpreted to permit “straw polls” in closed sessions where members did not actually vote or make a decision as defined by law. Moore v. Fennville Public Schools Board of Education, 566 N.W.2d 31 (Mich. Ct. App. 1997).
PUBLIC RECORDS In determining the public nature of records, the courts must weigh the extent of the public interest involved. A case in point involved the investigation by an Atlanta television station that sought the release of personnel records of bus drivers who transported schoolchildren. The drivers worked for a private bus company that had contracted to transport schoolchildren to and from school in buses owned by the school district. The private company refused to release the personnel files, claiming it was a private entity. The television station claimed that the transportation of pupils was a “legitimate function” of the school board and that the private company was merely a “management tool” used by the board to carry out public responsibilities. The court agreed, saying that “without question, then, operation of school buses or arranging for their operation, is ‘a legitimate function’ of the Board,”115 and, therefore, the public should be entitled to inspect the records. The court found it important to note that there is a significant public interest in the safe transportation of children and that the board’s public duty to ensure safety required that the personnel records of the private company be held open to public scrutiny. One of the most controversial aspects of open meetings laws is determining what actually constitutes a meeting. Is it a meeting if a quorum of board members meet to play a round of golf,
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have dinner together, or play cards? Some state statutes provide that a public meeting shall not include an informal gathering.116 Even though the precise wording of the statute will prevail, it may be generally concluded that the actual intent of the meeting must be the true test. If the intent of a meeting is purely social and informal, then by definition no public business is conducted. If no public business is conducted, then the meeting is not subject to open meeting requirements. A Missouri court has defined public business as “those matters over which the public governmental body has supervision, control, jurisdiction or advisory power.”117 A workshop at a mountain retreat to improve the personal relations and foster social interaction among board members who had a history of divisive behavior is not a matter of public business.118 In this particular case, the court said that [a]s a matter of law, it was not public business for the Board to discuss the betterment of interpersonal relationships in the context of a workshop when the discussions of interpersonal relationships did not include reference to any business matters which would come before the Board for consideration and action.119
In another interesting case, a statute defined meeting as constituting “any deliberation between a quorum of members” at which “public business” is discussed, the court found that at a meeting that was held by a quorum of board members who merely sat and listened to a consultant’s report—a briefing session—and at which no members indulged in verbal exchange or discussion, the open meetings law was not violated. The court in this case said explicitly that a meeting such as that held by the Board . . . does not violate the Act so long as a quorum of the Board does not conduct a verbal exchange between themselves or with any other person about any issue within the jurisdiction of the government body or any public business.120
This court did not speculate as to what the result would have been if board members had communicated with each other in sign language, body language, or writing. A threshold issue in all these cases involves the definition of a public body or a public agency to which the Sunshine meeting or public records
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requirements are applied. Of course, private meetings, or purely private records, are not subject to openness requirements. Some public boards have sought to limit the possible overbreadth of Sunshine statutes by employing private entities to perform certain sensitive functions. For example, job searches for school superintendents have, at times, been delegated to private firms in order to shield the identity of applicants who would not want their names revealed for fear of jeopardizing their current employment. Litigation over the permissible latitude of public boards in this regard has been relatively frequent, with newspapers as the usual plaintiffs. General legal rules that determine whether an entity is the functional equivalent of a public body are applied in such cases. If an entity is the functional equivalent of the public body for which it performs a task, then its meetings and records must be open to scrutiny of the press and the citizenry. The criteria are as follows: 1. Whether the entity performs a governmental function. 2. The level of governmental funding supporting the entity. 3. The extent of governmental involvement and regulation. 4. Whether the agency was related by the government.121 The following case clearly defines the matter.
Charter School Is an “Agency” Subject to State Right-to-Know Act (Open Records Law)
Zager v. Chester Community Charter School Supreme Court of Pennsylvania, 2007 594 Pa. 166, 934 A.2d 1227.
Justice BALDWIN. Appellant, Chester Community Charter School (“the school”), was created pursuant to the Charter School Law, 24 P.S. § 17-1701-A
et. seq. The school is currently managed by Charter School Management, Inc., which provides management services to the school pursuant to a written agreement. A corporation known as Charter Choice, Inc. managed the school prior to July, 2002. Appellee, Matthew Zager (Zager), is a resident of Pennsylvania. On April 5, 2005, pursuant to the Right-toKnow Act (“Act”), 65 P.S. § 66.1 et. seq., Zager sent a letter to Vahan Gureghian, the Chief Executive Officer of Charter School Management, Inc., requesting the independent Auditor’s report and financial statements for Chester Community Charter School for the fiscal year ending June 30, 2003. Zager additionally requested information regarding the management arrangement between Chester Community Charter School and Charter Choice, Inc. A copy of the letter was sent to Peter Idstein, an officer of Charter School Management, Inc. and school chief administrator. The school failed to respond to Zager’s request. On April 22, 2004, Zager ’s attorney sent a letter to Mr. Gureghian indicating that Chester Charter School was a non-Commonwealth agency under the Right-to-Know Act, and that pursuant to 65 P.S. § 66.3-4(a), the school’s failure to respond to Zager’s initial letter in a timely manner constituted a deemed denial of Zager’s request. The letter further specified that it included Zager’s exceptions to the deemed denial, pursuant to 65 P.S. § 63.3-5(a), and restated Petitioner’s requests. . . . In excepting to the deemed denial of Zager’s requests, the letter indicated that the documents requested were clearly public records as defined by section 66.1 of the Right-to-Know Act, 65 P.S. § 66.1. By letter dated May 19, 2004, Danielle Gureghian, Executive Vice President and legal counsel for Charter School Management, Inc. denied Zager’s request for the records on grounds that Charter School Management, Inc. was a private company and therefore not subject to the Right-to-Know Act. The letter further noted that 24 P.S. § 17-1732A of the Public School Code did not indicate that the Right-to-Know Act applies to charter schools. Thereafter, Zager filed a Petition for Review with the Court of Common Pleas of Delaware County.
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Open Meetings and Public Records Laws
In a comprehensive and well-reasoned opinion, the trial court concluded that the school was subject to the requirements of the Right-to-Know Act and that the documents requested by Zager constituted public records that were subject to disclosure. . . . The Commonwealth Court affirmed, reasoning that the school qualified as an “agency” performing an essential government function for purposes of the Right-to-Know Act and therefore it was subject to the Act’s disclosure requirements. . . . The Right-to-Know Act requires “agencies” to make public records accessible for inspection and duplication. The purpose of the statute is to “enlarge the rights of the general public for the examination and inspection of public records.” Agencies that are required to disclose their records are defined by the Act as follows: “Agency.” Any office, department, board or commission of the executive branch of the Commonwealth, any political subdivision of the Commonwealth, the Pennsylvania Turnpike Commission, the State System of Higher Education or any State or municipal authority or similar organization created by or pursuant to a statute which declares in substance that such organization performs or has for its purpose the performance of an essential governmental function. Charter schools are not specifically listed within the definition of “agency” as set forth in section 66.1 of the Right-to-Know Act. However, in addition to the entities that are explicitly enumerated, section 66.1 provides a catchall provision which subjects to the Act’s requirements organizations that are similar to those listed and which perform or have for their purpose, the performance of an essential governmental function. Chester Community Charter School asserts, however, that the catchall provision refers only to those organizations that are similar to state or municipal authorities since the language of section 66.1 lists “state or municipal authorities” immediately preceding the catch-all provision. Contending that charter schools are not similar to state or municipal authorities, Chester Community Charter School argues that it is therefore not subject to the Right-to-Know Act. . . . Courts within this Commonwealth have repeatedly found school districts, vested with the power to carry out the provisions of the
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Public School Code, sufficiently similar to the entities explicitly listed in section 66.1 to qualify as “agencies” within the Act’s definition. Public schools, which constitute the foundation of school districts, are therefore subject to the Right-to-Know Act’s record requirements. Charter schools are not exempt from the statutes that are applicable to public schools. [A] critical inquiry is whether the organization performs an “essential governmental function.” In determining whether an agency is performing an essential governmental function, we held in Community College that the performing entity must be either statutorily identified as providing an essential service or provide a service which is constitutionally mandated or indisputably necessary to continued existence of the Commonwealth. . . . The Charter School Law, pursuant to which Chester Community Charter School was created, defines a charter school as “an independent public school established and operated under a charter from the local board of school directors and in which students are enrolled or attend.” The Public School Code, within which the Charter School Law is contained, is intended to “establish a thorough and efficient system of public education, to which every child has a right.” A stated purpose of charter schools is to “provide parents and pupils with expanded choices in the types of educational opportunities that are available within the public school system.” (“A charter school is defined under the [Charter School Law] as an independent, nonprofit, public school. . . .”). Therefore charter schools, as independent public schools created for the purpose of providing the essential governmental service of education in a constitutionally mandated manner, are necessarily included among the agencies that are subject to the Right-to-Know Act. . . . Additionally, the Right-to-Know Act, enacted on June 21, 1957, predates the Charter School Law, which was enacted on June 19, 1997. Therefore, we may presume that at the time the Charter School Law was enacted, the Legislature was aware that charter schools would fall within the Act’s authority, and consequently declined to specifically reference the Right-to-Know Act within the Charter School Law. For the same reason, the Legislature may have declined to explicitly include charter schools within the definition
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of “agency” upon the amendment of the Rightto-Know Act on June 29, 2002. The General Assembly is empowered to pass legislation [and] define the terms of its legislation as its sees fit. While the Legislature may have declined to mandate compliance with the Right-to-Know Act within the Charter School Law, the Right-to-Know Act itself includes charter schools within its scope and therefore subjects charter schools to its requirements. Accordingly, we affirm the determination of the Commonwealth Court that the records requested by the Appellee are subject to public disclosure.
Citizen May Review Teacher’s Personnel File Under Authority of State Public Record Law
Hovet v. Hebron Public School District Supreme Court of North Dakota, 1988. 419 N.W.2d 189.
VANDE WALLE, Justice. Meredith Hovet appealed from a judgment of dismissal declaring his personnel file to be a public record open for inspection by the public under the provisions of Sections 44-04-18 and 1529-10, N.D.C.C., and Article XI, Section 6, of the North Dakota Constitution. We affirm. Hovet was employed by the Hebron Public School District (School District) as a teacher of business education and physical education during the 1986–1987 school year and had been so employed for the previous three school years. During the course of this employment a personnel file was maintained by the School District. By a letter dated May 21, 1987, Madonna Tibor requested that the School District allow her to review Hovet’s personnel file. Subsequently the superintendent for the School District agreed to provide a review of Hovet’s personnel file on June 2, 1987.
Hovet then filed a complaint seeking a permanent injunction enjoining the School District from allowing the review of his personnel file by anyone other than a legal representative of the School District. At this time Hovet also sought a temporary restraining order prohibiting the review. A hearing was held and a temporary restraining order was granted. . . . Hovet and the School District each argued that the personnel file was confidential. Tibor argued that the personnel file was a public record open to inspection. . . . The trial court issued a judgment of dismissal. It is from this judgment that Hovet appealed. We note that the School District has aligned itself with Hovet and against Tibor on appeal. Hovet and the School District concede that the personnel file is a governmental record, but argue that it is a record not open to public inspection because certain statutes protect a teacher’s personnel file from inspection under the open-records law. The concession that the personnel file is a governmental record is based upon this court’s decisions. . . . Open governmental records in North Dakota are required by our Constitution and our statutes. Article XI, Section 6, of the North Dakota constitution provides: Unless otherwise provided by law, all records of public or governmental bodies, boards, bureaus, commissions, or agencies of the state or any political subdivision of the state, or organizations or agencies supported in whole or in part by public funds, or expending public funds, shall be public records, open and accessible for inspection during reasonable office hours.
Section 44-04-18, N.D.C.C., tracks and implements Article XI, Section 6. It provides: 1. Except as otherwise specifically provided by law, all records of public or governmental bodies, boards, bureaus, commissions or agencies of the state or any political subdivision of the state, or organizations or agencies supported in whole or in part by public funds, or expending public funds, shall be public records, open and accessible for inspection during reasonable office hours. 2. Violations of this section shall be punishable as an infraction.
The first argument of Hovet and the School District is that Section 15-47-38, N.D.C.C.,
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Open Meetings and Public Records Laws
provides an implied exception to the openrecords law. Section 15-47-38 specifies the procedures to be utilized when a school board discharges a teacher or decides to not renew a teacher’s contract. Among these procedures are the following: For a non-renewal decision the reasons for non-renewal must be drawn from specific and documented findings arising from formal reviews conducted by the board with respect to the teacher’s overall performance; that such proceedings must be held in an executive session unless both parties agree to open them to the public; that no action for libel or slander shall lie for statements expressed orally or in writing at the executive sessions. Hovet and the School District argue that these procedures are designed to facilitate openness in the proceedings and to protect the teacher’s reputation. They reason that opening to the public a teacher’s personnel file—which would be reviewed at these proceedings—harms the above-stated goals. Thus, they conclude, an exception for teachers’ personnel files from the open-records law must be implied. This argument, however, ignores the language of the open-records law. Section 44-0418(1), N.D.C.C., provides that all governmental records are open to the public “Except as otherwise specifically provided by law. . . .” (emphasis added) Our Code provides that “Words used in any statute are to be understood in their ordinary sense, unless a contrary intention plainly appears. . . .” The word “specific” usually is defined to mean “explicitly set forth; particular, definite.” . . . This definition is opposite to the meaning of “implied,” which is defined to mean “suggested, involved, or understood although not clearly or openly expressed.” . . . Thus, because the open-records law provides that governmental records are to be open to the public “Except as otherwise specifically provided by law,” an exception to the open-records law may not be implied. In order that a record may be excerpted from the open-records law, the Legislature must specifically address the status of that type of record—e.g., statements that a certain type of record is confidential or that it is not open to the public. . . . Thus, for an exception to the open-records law to exist under our constitutional and statutory provisions, it must be specific, i.e., the
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Legislature must directly address the status of the record in question, for a specific exception, by the plain terms of those provisions, may not be implied. Therefore, the contention that an exception to the open-records law for teacher personnel files should be implied from Section 15-47-38, N.D.C.C., must fail. Hovet next alleges that he has a right to privacy guaranteed to him by the United States Constitution and the North Dakota Constitution, which will be violated if the public is allowed to inspect his personnel file. . . . In Grand Forks Herald we decided that personnel records are not protected by the right to privacy arising under the Federal Constitution because personnel records do not concern a subject to which the Federal right to privacy has been recognized as applying. . . . In Grand Forks Herald we also refused to find that a governmental employee’s personnel record was protected by a right to privacy arising from the North Dakota Constitution. . . . Even if a right to privacy existed under our Constitution, there would be no right of privacy “in a personnel record of a person employed by a public agency. . . .” 307 N.W.2d at 580. [Vande Walle, J., concurring specially.] A teacher’s personnel file has not been shown to be different from the personnel files of other governmental employees. Therefore, we reject Hovet’s argument. . . . The judgment is affirmed. . . .
CASE NOTES 1. Public Records. A Florida statute defines public records as all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings or other material, regardless of physical form or characteristics, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency. Section 119.011(1), West’s Florida Statutes Annotated.
In holding that the transcript of a dismissal proceeding, held by a school board to determine the fitness of a school administrator, must be released on request of a newspaper, the Iowa Supreme Court said that, as a method of public policy, “Disclosure is favored over nondisclosure, and exemptions from disclosure are to be strictly
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construed and granted sparingly.” Board of Directors of Davenport Community School District v. Quad City Times, 382 N.W.2d 80 (Iowa 1986). 2. Where a public records statute provided that “records of any executive session may remain secret as long as publication may defeat purposes of the executive session, but no longer,” the court held that closed-session minutes of a hearing charging sexual harassment of an employee must be released on request to the newspaper after the employee had resigned. The court said: The lawful purposes of the executive sessions called by the school committee were to discuss the litigation that the school committee was engaged in with the director. By the time this case was filed, the director had resigned, and the litigation was terminated. Thus, the lawful purposes, . . . for which the executive sessions were held were no longer extant.
One is likely to be perplexed with this result because the minutes may have continuing harmful effects on the employee. In this case, however, the trial judge concluded that the purpose of the executive session was not to discuss or preserve the employee’s reputation, but rather to consider complaints or charges brought against the employee. Foudy v. Amherst-Pelham Regional School Committee, 402 Mass. 179, 521 N.E.2d 391 (1988). 3. A request was made to review a teacher’s personnel file, in particular the college transcript of the teacher. The court ruled that the Family Educational Rights and Privacy Act did not protect the transcript. Also the teacher’s right to privacy under the federal Constitution was rejected, and the Texas open records law required disclosure of the transcript. Klein Independent School District v. Mattox, 830 F.2d 576 (5th Cir. 1987). 4. Teacher Emails. A question may arise as to whether the contents of personal e-mails written by teachers, which were created and/or stored on a government-owned system, are “public records.” A Wisconsin court in 2010 addressed this issue and concluded that a teacher ’s personal e-mails sent on school e-mail accounts and district-owned computers were not records under that state’s Public
Records Act. This court pointed out that several states had addressed this question and each concluded that government employees’ personal e-mails are not information about government affairs; therefore, they are not open to the public. The court stated, “The court is asked in the instant case to apply the Public Records Law to emails, a technology not contemplated when the legislature enacted the Public Records Law.” The court said that courts are routinely required to interpret the meaning of statutory language and apply it to “complicated social questions” involving technology that were not contemplated when a statute was enacted. Schill v. Wisconsin Rapids School District Schill v. Wisconsin Rapids School District, 786 N.W.2d 177 (S. Ct. Wis. 2010). 5. Concerning teacher e-mails, a Michigan appellate court concluded that, “while we believe this question is one that must be resolved by the Legislature, and we call upon the Legislature to address it, we conclude that under the Michigan Freedom of Information Act, FOIA, the individual plaintiff’s (teacher’s) personal emails were not rendered public records solely because they were captured in the email systems’ digital memory. Additionally, we conclude that mere violation of an acceptable use policy barring personal use of the email system—at least one that does not expressly provide that emails are subject to FOIA—does not render emails public records subject to FOIA.” Howell Education Association MEA/NEA v. Howell Board of Education, Howell Education Association MEA/NEA v. Howell Board of Education, 287 Mich.App. 228, ___ N.W.2d ___ (2010).
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Summation of Case Law
Legislative Control 1. The control of schools and school affairs is vested in the lawmaking power of the state, upon the principle that schools are intrinsically matters of state concern, and not of a local nature. Both by the state constitution and the intrinsic nature of the duty and the power, the authority is exclusively legislative, and the matter over which it is to be exercised solely of state concern.
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Summation of Case Law
2. The legislature has choice of methods for public schools and may change its plans as often as it deems necessary or expedient. For any mistakes or abuses, it is answerable to people, but not to courts. It has been a uniform course since the organization of states to regulate and control school affairs by legislation. All public schools have been established by legislative enactments, and all rules and regulations have been made pursuant to statutory authority. Every school district and school owes its existence to legislation, and every school officer owes his authority to statute. 3. The power to establish a uniform system of common schools is lodged in the state legislature. Incident thereto, the legislature has the principal authority to prescribe the course of study and the system of instruction that shall be pursued and adopted, as well as the books which shall be used. Delegation of Legislative Authority 1. A state legislature may constitutionally delegate its legislative functions to an administrative agency, but it must provide, with reasonable clarity, limitations upon the agency’s discretion and provide the agency with policy guidance. 2. A statute granting legislative power to an administrative agency will be held to be invalid if the legislature has failed to prescribe a policy, standard, or rule to guide the exercise of the delegated authority. If the legislature fails to prescribe such with reasonable clarity the limits of power delegated to an administrative agency, or if those limits are too broad, the statute is invalid. 3. A state may constitutionally vest discretion as to execution of law in administrators when the legislature states the purpose of the law and sets up standards to guide agency administering it. Administrative Discretion 1. A statute reposing, in effect, an absolute, unregulated, and undefined discretion in an administrative body, bestows arbitrary powers and unlawfully delegates legislative powers.
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2. The presumption that an officer will not act arbitrarily, but will exercise sound discretion and good faith, cannot sustain delegation of unregulated discretion to him by statute. 3. The method and manner of enforcing any law must be left to reasonable discretion of administrative officers, but a statute vesting in such officer’s discretion to determine what the law is or to apply it to one party and refuse its application to another in like circumstances is void as unwarranted delegation of legislative authority. Impartial Tribunal 1. A decision maker is not disqualified on due process grounds simply because it has taken a position, even in public, on a policy issue related to the dispute if there is no showing that the decision maker is not capable of judging the particular controversy fairly on the basis of its own circumstances. 2. A school board’s prior role as negotiator with its teachers does not disqualify it, on due process grounds, from deciding that the public interest, in maintaining uninterrupted classrooms, required the striking teachers to be discharged. Abuse of Discretion 1. An abuse of discretion by an agency is synonymous with unreasonableness. 2. An agency’s decision is unreasonable where it is not based on substantial evidence or is based on an erroneous application of the law. 3. In applying an abuse of discretion standard, an appellate court looks only to whether a reasonable person could have found sufficient evidence to come to the same conclusion as reached by the school district. Thus, an appellate court will find that a decision was unreasonable if it was not based upon substantial evidence or was based upon an erroneous application of the law. Delegation of School Board Authority 1. Where a high school could be withdrawn from association, which established rules relating to athletic competition between schools, the school’s membership in association did not constitute an illegal delegation of authority of the school board.
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2. Legislation by an interscholastic association that deals with athletic eligibility is not violative of equal protection rights if the legislation has a reasonable basis.
applying, and even if a right to privacy existed under the state constitution, there would be no right to privacy in the personnel record of a person employed by a public agency.
Conflict of Interest Legislative intent prohibiting conflicts of interest seeks to engender confidence in public bodies and to eliminate situations in which preference or undue influence could come to bear in operation of government. School Board Elections 1. States must ensure in elections that each person’s vote counts as much, insofar as it is practicable, as any other person’s. 2. Generally, whenever a state or local government decides to select persons by popular election to perform governmental functions, the Equal Protection Clause of the Fourteenth Amendment requires that each qualified voter must be given equal opportunity to participate in that election, and when members of an elected body are chosen from separate districts, each district must be established on a basis which will ensure, as far as is practicable, that equal numbers of voters can vote for proportionally equal numbers of officials. 3. Where a state chooses to select members of an official public body by appointment rather than by election, and that choice does not itself offend the U.S. Constitution, the fact that each official does not “represent” the same number of people does not deny those people equal protection of the laws. Open Meetings A school board does not violate open meetings law when it conducts a closed-session discussion and approval of drug search of student lockers without including the matter of drug search on the agenda for its meetings. Public Records Allowing the public to view teacher’s personnel file pursuant to open-records law does not violate a teacher ’s right to privacy. Personnel records do not concern a subject to which the federal right to privacy has been recognized as
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Research Aids
Research citations below are abbreviated as: American Law Reports (A.L.R.), American Jurisprudence (Am.Jur.), Corpus Juris Secundum (C.J.S.), and McQuillen Municipal Corporations (McQuillen Mun.Corp.). Explanations for each of these sources of law are found in Chapter 1 of this text. Also, see Appendix B of this book. 67B Am.Jur.2d Schools § 8. Education as a Government Function: Legislatures Power and Duty. 78 C.J.S. Schools and School Districts § 6. Public Schools In General: Legislative Power and Discretion. Am.Jur.2d. Municipal Corporations, Counties, and other Political Subdivisions: Express and Implied Powers. Am.Jur.2d. Schools. Introductory Matters, Establishment and Regulation of Charter Schools, Contracts. A.L.R. Validity, Construction, and Application of Statute or Regulation Governing Charter Schools. 16A Am.Jur.2d Constitutional Law § 329. Departmental Separation of Governmental Powers: Delegation of Powers, Legislative Powers, Particular Delegations. 69 A.L.R. 266. Constitutionality of Statutes for Formation or Change of Political Districts or Municipal Corporations Having To Do With Delegated Powers. 16 C.J.S. Constitutional Law § 293. Distribution of Governmental Powers and Functions: Legislative Powers and Delegation to Local Authorities. 16D C.J.S. Constitutional Law § 1815. Administrative Proceedings Impartiality in Hearings. 52 A.L.R.3d 1036. Nature and Extent of School Transportation that Must Be Furnished Free. 15 A.L.R.4th 885. Validity of Regulation of Athletic Eligibility of Students. 67B Am.Jur.2d Schools § 29. School Districts: Powers and Duties.
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Endnotes
16B C.J.S. Constitutional Law § 1277. Political Rights and Elections: Equality of Voting Power. 73 C.J.S. Public Administrative Law and Procedure § 32. Administrative Agencies, Officers and Agents. Meeting; Sunshine Laws Am.Jur.2d Municipal Corporations, Counties, and Other Political Subdivisions. Meetings and Proceedings: Requirements of Public Meetings. 2 Am.Jur.2d Administrative Law § 84. Meetings and Records: Public Meetings Requirements and Sunshine Acts. 35 A.L.R.5th 113. Pending or Prospective Litigation Exception Under State Law Making Proceedings by Public Agencies Open to the Public. 78 A.L.R.5th 533. Validity Construction, and Application of Statute or Regulation Governing Charter Schools. 27 A.L.R. 4th 680. What Are “Records” of an Agency Which Must Be Available Under State Freedom of Information Acts?
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Endnotes
1. Aristotle, The Politics, trans. T. A. Sinclair, revised and represented by Trevor J. Saunders (London: Penguin Books, 1981), p. 54. 2. John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980), p. 138. 3. John Rawls, Political Liberalism (New York: Columbia University Press, 1993), p. 212. 4. Ibid., p. 213. 5. Ibid. 6. Ibid. 7. State Tax Commission v. Board of Education of Jefferson County, 235 Ala. 388, 179 So. 197 (1938). 8. Board of Education v. Stoddard, 294 N.Y. 667, 60 N.E.2d 757 (1945). 9. Moore v. Board of Education, 212 N.C. 499, 193 S.E. 732 (1937). 10. Child Welfare Society of Flint v. Kennedy School District, 220 Mich. 290, 189 N.W. 1002 (1922). 11. Board of Education of Aberdeen-Huntington Local School District v. State Board of Education, 116 Ohio App. 515, 189 N.E.2d 81 (1962). 12. Campbell v. Aldrich, 159 Or. 208, 79 P. 2d 257 (1938), appeal dismissed, 305 U.S. 559, 59 S. Ct. 87 (1938). 13. Leeper v. State, 103 Tenn. 500, 53 S.W. 962 (1899). 14. Hannibal and St. J. Railroad Co. v. Husen, 95 U.S. (5 Otto) 465 (1877). 15. Leroy J. Peterson, Richard A. Rossmiller, and Marlin M. Volz, The Law and Public School Operation (New York: Harper & Row, 1978), p. 90. 16. Halstead v. Rozmiarek, 167 Neb. 652, 94 N.W.2d 37 (1959).
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17. People v. Draper, 15 N.Y. 532 (1857). 18. See Newton Edwards, The Courts and the Public Schools (University of Chicago Press, 1955), p. 27; Commonwealth v. Hartman, 17 Pa. 118 (1851); Moseley v. Welch, 209 S.C. 19, 39 S.E.2d 133 (1946); Board of Education of Chicago v. Upham, 357 Ill. 263, 191 N.E. 876 (1934); Board of Education v. State Board of Education, 116 Ohio App. 515, 189 N.E.2d 81 (1962); Associated Schools of Independent District No. 63 v. School District No. 83 of Renville County, 122 Minn. 254, 142 N.W. 325 (1913). 19. State of Michigan ex rel. Kies v. Lowry, 199 U.S. 233, 26 S. Ct. 27 (1905). 20. Edwards, The Courts and the Public Schools, op. cit., p. 28. 21. See Helena Elementary School District No. 1 v. State, 236 Mont. 44, 769 P.2d 684 (1989); Rose v. Council for Better Education, Inc., 790 S.W.2d 186 (Ky. 1989); Edgewood Independent School District v. Kirby, 777 S.W.2d 391 (Tex. 1989). 22. William E. Thro, “The Third Wave: The Impact of the Montana, Kentucky and Texas Decisions on the Future of Public School Finance Reform Litigation,” Journal of Law and Education 19, no. 2 (Spring 1990), p. 240. 23. Seattle School Dist. No. 1 v. State, 90 Wash.2d 476, 511–513, 514, 585 P. 2d 71, 91–92 (1978). 24. Tyska by Tyska v. Board of Education, 117 Ill. App.3d 917, 73 Ill. Dec. 209, 453 N.E.2d 1344 (1983). 25. Louis L. Jaffe, “Essay on Delegation of Legislative Power,” 47 Colorado Law Review, pp. 359, 361 (1947). 26. Attorney General v. Lowrey, 131 Mich. 639, 92 N.W. 289 (1902). 27. MacQueen v. City Commission of City of Port Huron, 194 Mich. 328, 160 N.W. 627 (1916). 28. Board of Educ. of Louisville v. Society of Alumni of Louisville Male High School, 239 S.W.2d 931 (Ky. 1951). 29. School District No. 1, Multnomah County v. Bruck, 225 Or. 496, 358 P.2d 283 (1960). 30. Goodman v. School District No. 1, 32 F.2d 586 (8th Cir. 1929). 31. Hallett v. Post Printing & Publishing Co., 68 Colo. 573, 192 P. 658 (1920). 32. McGilvra v. Seattle School District No. 1, 113 Wash. 619, 194 P. 817 (1921). 33. Jarrett v. Goodall, 113 W.Va. 478, 168 S.E. 763 (1933). 34. Brine v. City of Cambridge, 265 Mass. 452, 164 N.E. 619 (1929). 35. Denver Board of Education v. Booth, 984 P. 2d 639 (Colo. 1999). 36. Lujan v. Colorado State Board of Education, 649 P. 2d 1005 (Colo. 1982). 37. Owens v. Colorado Congress of Parents, Teachers and Students, 92 P. 3d 933 (2004). 38. Kenneth Culp Davis, Administrative Law Treatise, Vol. 1 (St. Paul, MN: West Publishing Co., 1958), p. 5. 39. Ibid., p. 102. 40. John Locke, Two Treatises of Civil Government, Book 2, Ch. 11, § 141. 41. Osius v. City of St. Clair Shores, 344 Mich. 693, 75 N.W.2d 25 (1956). 42. Davis, Administrative Law Treatise, p. 103. 43. Ward v. Scott, 11 N.J. 117, 93 A.2d 385 (1952).
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44. Ibid. 45. State v. Kinnear, 70 Wash.2d 482, 423 P.2d 937 (1967). 46. School District No. 3 of Town of Adams v. Callahan, 237 Wis. 560, 297 N.W. 407 (1941). 47. Schinck v. Board of Education of Westwood Consolidated School Dist., 60 N.J. Super. 448, 159 A.2d 396 (1960). 48. Jokinen v. Allen, 15 Misc.2d 124, 182 N.Y.S.2d 166 (1958). 49. Bowles v. Willingham, 321 U.S. 503, 64 S. Ct. 641 (1944). 50. S.A. de Smith, Judicial Review of Administrative Action (London: Stevens & Sons, 1973), p. 60. 51. Fremont RE-1 School District v. Jacobs, 737 P.2d 816 (Colo. 1987). 52. Robert F. Will, State Education, Structure and Organization (U.S. Department of Health, Education and Welfare, U.S. Office of Education, 1964), pp. 8–10. 53. Laba v. Board of Education of Newark, 23 N.J. 364, 129 A.2d 273 (1957). 54. In re Masiello, 25 N.J. 590, 138 A.2d 393 (1958). 55. R. v. Roberts, 2 K.B. 695 (1924). See also Kern Alexander, “Administrative Prerogative: Restraints of Natural Justice on Student Discipline,” Journal of Law and Education 7, no. 3 (July 1978), pp. 331–358. 56. Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986), p. 113. 57. Lloyd L. Weinreb, Natural Law and Justice (Cambridge, Mass.: Harvard University Press, 1987), p. 166. 58. Hortonville Joint School District No. 1 v. Hortonville Education Ass’n, 426 U.S. 482, 96 S. Ct. 2308 (1976). 59. A. H. Andrews Co. v. Delight Special School District, 95 Ark. 26, 128 S.W. 361 (1910). 60. Edwards, The Courts and the Public Schools, op. cit., p. 147. 61. Knox County Board of Education v. Fultz, 241 Ky. 265, 43 S.W.2d 707 (1931); Lyerley v. Manila School District 15, 214 Ark. 245, 215 S.W.2d 733 (1948); Board of Education v. County Board of School Trustees, 25 Ill. App.2d 390, 166 N.E.2d 472 (1960); Detroit Edison Co. v. East China Township School District No. 3, 366 Mich. 638, 115 N.W.2d 298 (1962); School District No. 12, Phillips County v. Hughes, 170 Mont. 267, 552 P.2d 328 (1976). 62. Board of Education of City of New York v. Allen, 6 N.Y 2d 127, 188 N.Y.S.2d 515, 160 N.E.2d 60 (1959). 63. Board of Education v. County Board of School Trustees, 32 Ill. App.2d 1, 176 N.E.2d 633 (1961). 64. de Smith, Judicial Review of Administrative Action, p. 283. 65. Ibid., pp. 288–289. 66. Ibid., p. 279. 67. Bristol, Virginia School Board v. Quarles, 235 Va. 108, 119–20, 366 S.E.2d 82, 89 (1988). 68. Wood v. Board of Supervisors of Halifax County, 236 Va. 104, 372 S.E.2d 611 (1988). 69. School District of Harrisburg v. Pennsylvania Interscholastic Ass’n, 309 A.2d 353 (Pa. 1973). 70. Marshall v. Alabama High School Athletic Ass’n, 717 So.2d 404 (Ala. Civ. App. 1998). 71. Crane by Crane v. Indiana High School Athletic Ass’n, 975 F.2d 1315 (7th Cir. 1992). 72. Bailey v. Truby, 321 S.E.2d 302 (W.Va. 1984); Thompson v. Fayette County Public Schools, 786 S.W.2d 879 (Ky. Ct. App. 1990). 73. Plyler v. Doe, 457 U.S. 202, 102 S. Ct. 2382 (1982).
74. L.P.M. v. School Board of Seminole County, 753 So.2d 130 (Fl. Dist. Ct. App. 2000); Pirschel v. Sorrell, 2 F. Supp. 2d 930 (E. D. Ky. 1998). 75. Moran v. School District No. 7, Yellowstone County, 350 F. Supp. 1180 (D. Mont. 1972). 76. State ex rel. Bartmess v. Board of Trustees of School District No. 1, 223 Mont. 269, 726 P.2d 801 (1986). 77. Grabow v. The Montana High School Ass’n, 312 Mont. 92, 59 P.3d 14 (2002). 78. Bunger v. Iowa High School Athletic Ass’n, 197 N.W.2d 555, 53 A.L.R.3d 1110 (1972). 79. Ibid. 80. The Iowa Supreme Court in Bunger, Ibid. Quoted in 78 Corpus Juris Secundum § 122 at p. 91. 81. Bunger, op. cit. 82. 531 U.S. 288, 121 S. Ct. 924 (2001). 83. Tennessee Secondary School Athletic Association v. Brentwood Academy, U.S. 2007, 127 S. Ct. 2489, 2007 168 L. Ed. 2d 166 (2007). 84. Ibid. 85. Shelmadine v. City of Elkhart, 75 Ind. App. 493, 129 N.E. 878 (1921). 86. Main v. Claremont Unified School District, 161 Cal. App.2d 189, 326 P.2d 573 (1958). 87. Maddox v. State, 220 Ark. 762, 249 S.W.2d 972 (1952). 88. Constitution of Indiana, Art. 2, § 9. 89. People v. Becker, 112 Cal. App.2d 324, 246 P.2d 103 (1952). 90. State ex rel. Robinson v. Keefe, 111 Fla. 701, 149 So. 638 (1933). 91. Green v. Jones, 144 W.Va. 276, 108 S.E.2d 1 (1959). 92. Leech v. State, 78 Ind. 570 (1881). 93. People v. Reinberg, 263 Ill. 536, 105 N.E. 715 (1914). 94. Commonwealth v. Fahey, 156 Pa. Super. 254, 40 A.2d 167 (1944). 95. 328 U.S. 549, 66 S. Ct. 1198 (1946). 96. Ibid. 97. 369 U.S. 186, 82 S. Ct. 691 (1962). 98. Hadley v. Junior College District of Metropolitan Kansas City, Mo., 397 U.S. 50, 90 S. Ct. 791 (1970). 99. Gray v. Sanders, 372 U.S. 368, 83 S. Ct. 801 (1963). 100. Reynolds v. Sims, 377 U.S. 533, 84 S. Ct. 1362 (1964). 101. Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60, 99 S. Ct. 383 (1978). 102. Associated Enters, Inc. v. Toltec Watershed Improvement District, 410 U.S. 743, 93 S. Ct. 1237 (1973). 103. Ball v. James, 451 U.S. 355, 101 S. Ct. 1811 (1981). 104. Hill v. Stone, 421 U.S. 289, 95 S. Ct. 1637 (1975). 105. Kramer v. Union Free School District No. 15, 395 U.S. 621, 89 S. Ct. 1886 (1969). 106. Turner v. Fouche, 396 U.S. 346, 90 S. Ct. 532 (1970). 107. Duncan v. Coffee County, Tennessee, 69 F.3d 88 (6th Cir. 1995). 108. Ibid. 109. Board of County Commissioners of Shelby County, Tennessee v. Burson, 121 F.3d 244 (6th Cir. 1997). 110. Duncan v. Coffee County, Tennessee, op. cit. 111. Conover v. Board of Education, 1 Utah 2d 375, 267 P.2d 768 (1954). 112. Morning Call v. Board of School Directors, 164 Pa. Commw. 263, 642 A.2d 619 (1994).
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Quoted Box Citations 113. Ibid. 114. McCemas v. Board of Education of Fayette County, 475 S. E.2d 280 (W.Va. 1996). 115. Hackworth v. Board of Education for the City of Atlanta, 214 Ga. App. 17, 447 S.E.2d 78 (1994). 116. Kansas City Star Co. v. Fulson, 859 S.W.2d 934 (Mo. App. 1993). 117. Ibid., p. 940. 118. Ibid. 119. Ibid. 120. Dallas Morning News Co. v. Board of Trustees of Dallas Independent School District, 861 S.W.2d 532 (Tex. Ct. App. 1993).
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121. Board of Trustees v. Freedom of Information Commission, 181 Conn. 544, 436 A.2d 266 (1980).
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Quoted Box Citations
The Mind of the Founder: Sources of the Political Thought of James Madison, Revised Edition. Edited by Marvin Meyers, (Hanover and London, Published for Brandeis University Press by University Press of New England, 1973), p. 343. Richards v. Raymond, 92 Ill. 612, 1879 WL 8569 (1879).
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CHAPTER 5
Church and State When a religion is good, I conceive that it will support itself; when it cannot support itself, and God does not take care to support it, so that its professors are obliged to call for the help of the civil power, it is a sign, I apprehend, of its being a bad one. . . . —Benjamin Franklin, 1780
CHAPTER OUTLINE ■
INTRODUCTION
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VOUCHERS
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BACKGROUND
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INDEPENDENT VITALITY OF STATE CONSTITUTIONS
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WALL OF SEPARATION
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COLONIAL ESTABLISHMENTS
SUPREME COURT’S SECULARIZATION OF PUBLIC SCHOOLS: A BIFURCATED STANDARD Released Time for Religious Instruction
The Three Choices ■
SEPARATION IMPLEMENTED
Volitional Exercises
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CHURCH OPPOSITION TO SCHOOLS OF THE REPUBLIC
Religious Exercises
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THE PUBLIC SCHOOL AND RELIGION
Silent Meditation
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PUBLIC TAXATION TO SUPPORT RELIGIOUS SCHOOLS
Student-Initiated Religious Speech
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THE ESTABLISHMENT CLAUSE AND THE LEMON TEST
Prayer at Graduation and Extracurricular Activities
The Lemon Test The Wall Begins to Crumble The Marginalizing of Lemon The New Establishment Clause Jurisprudence ■
RELIGION AND THE RECONSTRUCTION ERA: GRANT AND BLAINE
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THE FOUNDERS’ INTENT REGARDING SEPARATION
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NEW THEORIES OF CHURCH AND STATE
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EQUAL ACCESS ACT
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FACILITIES
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FLAG SALUTE
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SUMMATION OF CASE LAW
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RESEARCH AIDS
Separation Nonpreferential Subsidization Subsidization and Collaboration
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Background
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Introduction
The leading clauses of the First Amendment, so revered by the Founders of the Republic, proclaims: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; . . .” As we shall see in this chapter, the current Supreme Court in its “new jurisprudence” has effectively abrogated the Establishment Clause now permitting Congress and state legislatures to provide public funds for religious institutions, even “pervasively sectarian” ones, by means of devices such as “grants for faith-based initiatives” as well as vouchers and tax credits to support clerical schools. The Court, however, while permitting public monies to flow to church-controlled schools and institutions, has been consistently diligent in its pursuit of the secularization of public institutions, in general, and public schools in particular. The legal precedents rendered by the Supreme Court are discussed throughout this chapter.
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Background
Reports of religious conflicts worldwide are emblazoned across the front pages and covers of major newspapers and magazines in virtually every edition. Religious and ethnic cleansing, and indeed genocide, are not recent phenomena and have been a tragic part of our world’s history for time immemorial. Witness the atrocities perpetrated against the Christians during the Roman Empire, the Jews and Muslims in the name of religion during the Crusades, the Spanish Inquisition, the pogroms in Russia and the Holocaust, and against other groups in more recent history, including genocide carried out against Americans, Bosnians, and Kurds. Additionally, religious strife continues to be standard fare in daily news accounts. Northern Ireland, Iraq, Iran, Indonesia, Kashmir, Algeria, Israel, Egypt, and the Christians versus Muslims at “ground zero” in New York City, 2010, are but a few of the trouble spots dealing with religious discord in today’s world. 1 The Economist has called this increasing religious militancy “a crisis of conscience,” affecting peoples throughout the world.2 In his influential book The Clash of Civilizations, Huntington observes that “Religion is a central
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defining characteristic of civilizations,” 3 and religious intolerance has created definitive “fault lines” between the Christian west and the Muslim east.4 Rising religious division has dramatically affected the drafting of a new constitution for the European Union. This problem, coupled with disagreement over the weight of voting power among the European Union countries, has thus far foreclosed the adoption of a new European charter.5 The French are strongly for separation of church and state and desire a secular document, whereas Poland, Italy, Spain, and Ireland require an explicit reference to Christianity in the statement of values of any new charter. On the other hand, Turkey, a country of millions of Muslims, which is scheduled to be a new entrant to the EU, is strongly secular and sees great difficulty in the European Union becoming a “Christian Club.” Moreover, the EU countries, as now constituted, are home to millions of Muslim, Hindu, and Jewish citizens.6 Thus, religious discord continues worldwide as one of the most troubling and historically insoluble issues facing world peace. Nor is this religious strife restricted to foreign and remote lands. As we have seen, religious fanaticism has bred dire and sorrowful problems in our own country, as witnessed by the debacle at Waco and the destruction of the World Trade Center in New York in September 2001. In the United States, there has been a recent and dramatic shift by large and prominent religious groups toward the view that “religiously trained professionals should exert spiritual influence over the secular matters of government.” 7 Cox, a professor of religion at Harvard, has explained, in an article entitled “The Warring Visions of the Religious Right,” the theological bases for the emergence of this new wave of Christian fundamentalism and its political implications at both the state and the federal levels. This fundamentalism argues that those with “Judeo-Christian” values are best qualified “to rule” and should be given their “rightful place of leadership at the top of the world” before world peace can or should be restored. This dogma has been given increasing credence in legislative halls.8 All of this is not new, but with new momentum, religious fundamentalism has recently reached out in an effort to control both state legislatures and the
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U.S. Congress, materially affecting the nature and structure of public schools in America. The court cases bearing on efforts by various religious groups to use tax monies to enhance religious schools, coupled with efforts to introduce sectarianism into the activities of public schools, reflect the multiplication and magnification of this religious discord surrounding public schools. This chapter is about the struggle for liberty of conscience and the requirements on the public schools in maintaining neutrality in matters of religion.
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Wall of Separation
In 1879, the Supreme Court in Reynolds v. United States9 first invoked Jefferson’s famous dictum, calling for the erection of a “wall of separation between church and state.” More than a century of judicial struggle has resulted in precious little resolution of the church and state conflict. In fact, it appears that the plethora of litigation over the years has merely tended to obscure the boundaries of separation envisaged by Jefferson. Indeed, lately it seems that the vision of separation, the foundational premise10 of religious freedom, may be becoming so obscure as to have indiscernible contours and boundaries. In 1985, Chief Justice Rehnquist, in his dissent in Wallace v. Jaffree, started the judicial ball rolling to dismantling the American “wall of separation” by roundly condemning the entire idea, saying that it is “a metaphor based on bad history, a metaphor which has proved useless as a guide to judging,” and that it “should be frankly and explicitly abandoned.”11
WALL OF SEPARATION I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between church and State. —Thomas Jefferson, reply to Danbury Baptist, Connecticut, January 1, 1802
[B]ishops may not meddle with the affairs of the commonwealth because they are governors of another corporation, which is the church, nor kings with making laws for the church, because they have government not of this corporation, but of another divided from it, the commonwealth, and the walls of separation between the two must forever be upheld. —Richard Hooker, England, 1648 For public schools to exist, “[I]t is necessary to erect a wall of separation between education and religion.” —Directory’s Commissioner to the Seine, Paris, France, 1793
Thus, the issue of separation and the interrelationship between religion and government retains its characteristic preeminence as a divisive issue in American society. To better understand the problem requires a brief look backward to the antecedents of the church–state issues touching the schools of this country. Centuries of religious strife in Europe left an indelible mark on the minds of the fathers of the American Constitution. Controversy over religion has not abated and today causes as much international and domestic discord as it did a thousand years ago. The diversity of religious backgrounds among the American colonies was so great, and religious sentiments so deep, that representatives at the Constitutional Convention in Philadelphia in 1787 were loath to address the issue should the convention founder on the shoals of religious dissension. Avoidance was implicitly agreed upon, and everyone more or less adopted the position of John Adams, who assumed that if the issue was not mentioned, both the state and religion would be best served. Adams expressed the hope that “Congress will never meddle with religion further than to say their own prayers, and to fast and to give thanks once a year.”12 Some believed that simple omission was not the appropriate solution to the religious dilemma, and although it was not acted upon by the convention, Pinckney of South Carolina sought to make the absence of congressional power in religion explicit by proposing that the new constitution provide that “the legislature of the United States
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Colonial Establishments
shall pass no law on the subject of religion.”13 Even though no general religious provision was acted upon, there is little doubt that the failure resulted from the delegates’ firm belief that such a provision was not necessary to preserve religious liberty. Although no general religious separation provision was thought to be needed, the convention did decide to specifically prohibit states from imposing religious tests for federal office. Madison explained it might be implied that “without [an] exception, a power would have been given to impose an oath involving religious test as a qualification for office.”14 Obviously, it was in the interest of the central government to prevent states with different religious ties from requiring religious tests for federal office. With cognizance of this, the convention adopted Pinckney’s motion that “no religious test shall ever be required as a qualification to any office or public trust under the United States”; this became the last clause of Article VI in the Constitution. Thus, when the Constitution was presented to the states, only the “religious test” of office provision was included, and no other reference was made regarding religious toleration. This omission was not taken lightly when the states were called upon to ratify the document. Six states ratified but proposed amendments guaranteeing religious liberty, and two other states, North Carolina and Rhode Island, refused to ratify until a bill of rights including religious freedom was promulgated.15 Although Madison defended the omission, saying that “the government has no jurisdiction over [religion],”16 it was argued by others that there was no security for the rights of conscience. Jefferson ultimately convinced Madison that a religious provision in a bill of rights was necessary. Commenting on the proposed constitution in a letter to Madison from Paris, where Jefferson was serving as ambassador, he said: I will now add what I do not like. First, the omission of a bill of rights providing clearly and without the aid of sophisms for freedom of religion, freedom of the press, protection against monopolies, the external and unremitting force of the habeas corpus laws, and trials by juries. . . . [A] bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse or rest on inference.17
The very uncertainty itself of whether such rights were implied in the Constitution was
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evidence enough that a bill of rights protecting religious freedom and ensuring disestablishment was necessary. Madison, with Jefferson’s urging and his own experience in persuading the states to ratify only after promising amendments as specific affirmation of individual rights and freedoms, stated that he now favored amendments to provide for “all essential rights, particularly the rights of Conscience in the fullest latitude, the freedom of the press, trial by jury, etc.”18 In accordance with this position, Madison introduced to the House of Representatives, in 1789, a compilation of proposals for amendments that he maintained would prevent encroachments by the sovereign power into individual rights and liberties. Madison’s proposals before the House were to finally become the Bill of Rights, which was approved by the requisite number of states in 1791. Prominent among these rights was the separation of church and state provision, which guaranteed religious freedom and prohibits establishment of religion by government. The First Amendment states: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble and to petition the Government for a redress of grievances.
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Colonial Establishments
The colonies during the seventeenth and eighteenth centuries reflected the precedent of single-church establishments of Europe. Although the intensity of the force of the preferred church varied among the colonies, there nevertheless existed strong and unquestioned establishments of the Congregational Church in New England—Massachusetts, Connecticut, and New Hampshire—and of the Anglican Church in the South—Virginia, North Carolina, and South Carolina. Another group of colonies—New York, New Jersey, Maryland, and Georgia—evolved through periods of preference for different churches, and tax support for Protestant churches, as the population changed. In New York, for example, the Dutch Reformed Church was initially established, but as the colony grew, a heterogeneous group of other believers entered, including Calvinists, Lutherans, Mennonites, Quakers, Catholics, and Jews. When the English took over
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New Netherland and it became New York, the inclinations of the Stuarts toward Catholicism forced more toleration for all religious groups. The ultimate effect was that, by 1693, New York, while Anglican, was reasonably tolerant toward Catholics and generally provided tax support for all Protestant ministries.19 Because the religious preference of New York was largely unclear, a battle raged for years between the royal governors and the Anglican clergy, who demanded the clear and certain establishment of the Church of England. The policy ultimately became one of multiple establishments, whereby a variety of churches were provided funding by the state. A fourth group of colonies—Pennsylvania, Delaware, and Rhode Island—had a large measure of religious freedom, which generally prevailed from their origins. Pennsylvania advanced a toleration that generally followed William Penn’s philosophy as expounded in his Frame of Government, promoting freedom of religion.20 Delaware broke off from Pennsylvania in 1702 and continued this policy of religious freedom and the prohibition of use of public funds for church purposes. But Rhode Island, under Roger Williams, was the prototype of religious tolerance that came ultimately to prevail. From the time that Williams landed in Massachusetts in 1631, conflict developed with the Puritan establishment. Because of his insistence on separation of civil and ecclesiastical aspects of society, Williams was banished in 1635. In 1636, he formed a plantation in Rhode Island territory, and in 1643, a patent was obtained from Charles I to form a new colony. Williams’s ideas regarding the separation of church and state were predominant in Rhode Island, evolving from four basic theses: (1) attempts by the state to enforce religious orthodoxy produce persecution and religious wars and pervert God’s plan for the regeneration of souls; (2) God has not blessed a particular form of government, and governments will vary with the nature of the people governed; (3) political and religious diversity cannot be avoided; and (4) the human conscience must be totally free, through religious freedom and the separation of church and state.21 These ideas were elaborated in Williams’s Bloudy Tenet of Persecution in 1644. Williams’s ideas undoubtedly influenced the American attitude toward disestablishment that became prevalent after the war for independence, but Williams’s legacy apparently
had little carryover on those who formed the new federal Constitution in 1787 and the subsequent First Amendment.22
THE THREE CHOICES When the matter of religion was to be considered by the Constitutional Convention at Philadelphia in 1787, there were essentially three rationalizations for church–state relationships that had arisen out of the Reformation: the Erastian (named after the German philosopher Erastus), the theocratic, and the separatist. First, and dominant among these was the Erastian view, which assumed state superiority over ecclesiastical affairs and used religion to further the interests of the state. It was during the Elizabethan era in England that the Erastian philosophy was fully implemented. The second, the theocratic, was founded in the idea that the church is supreme and the state should be used to further ecclesiastical policy. Third, complete separation was advanced as the proper course by minority dissident groups in Europe, but it did not find full expression until 1791 in America.23 It was, however, John Locke on whom both Madison and Jefferson relied for their basic philosophical ideas concerning separation. In his Letter Concerning Toleration, Locke maintained that “[t]he care of souls cannot belong to the civil magistrate because his power consists only in outward force, but true and saving religion consists in the inward persuasion of the mind.”24 Locke’s ideas were developed and expanded under fire in the great dispute in Virginia over the established religion that had been carefully protected by statutes promulgated by the Anglican Church until the Revolution. These laws provided for religious services according to the laws and orders of the Church of England: compulsory attendance at religious services, regulation of nonconformists, glebe lands for support of the clergy, and a system of governmentally sanctioned vestries empowered to levy tithes for upkeep of the church and ministers’ salaries.
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Separation Implemented
Jefferson, more than any other person, led in enunciating and implementing the separation principle. In 1776, while he was in Philadelphia writing the Declaration of Independence, he drafted a proposed constitution for Virginia that
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Separation Implemented
stated: “All persons shall have full and free liberty of religious opinion; nor shall any be compelled to frequent or maintain any religious institution.”25 Although this particular measure was not passed, it nevertheless set the tone for religious freedom for Virginia in the era to come. In spite of Jefferson’s position, however, in 1779 a bill was introduced in the Virginia legislature declaring that “the Christian Religion shall in all times coming be deemed and held to be the established Religion of the Commonwealth.”26 It required every person to enroll his or her name with the county clerk and designate the society that he or she intended to support, whereupon the clerk would present the roll for the appropriate religious group to determine assessment rates; these were then collected by the sheriff, and the proceeds were turned over to the church. Persons failing to enroll in a religious society had their payments spread across all religious groups.27 In 1784, the bill was called up for a vote. Entitled “A Bill Establishing a Provision for Teachers of the Christian Religion,” it was sponsored by Patrick Henry. Although the bill was defeated, from the preceding and ensuing debate, two of the most important documents in religious freedom were written, Jefferson’s Bill for Establishing Religious Freedom and Madison’s Memorial and Remonstrance against Religious Assessments. Jefferson’s bill was written and introduced in the Virginia General Assembly in 1779 but was not enacted into law until January 1786. Madison’s Memorial, in opposition to Henry’s bill for religious assessments, was of major historical significance. The philosophy stated therein has often been referred to by the U.S. Supreme Court in support of its opinions. The Memorial presents several arguments against the religious assessment bill, but more important, it conveys a philosophy of separation that, along with Jefferson’s, provided the logic and rationale for the “wall of separation” provisions of the First Amendment in 1791.
An Act for Establishing Religious Freedom, Thomas Jefferson Written and introduced in 1779, enacted in 1786.
. . . That the impious presumption of legislators and rulers, civil as well as ecclesiastical, who, being
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themselves but fallible and uninspired men, have assumed dominion over the faith of others, setting up their own opinions and modes of thinking as the only true and infallible, and as such endeavoring to impose them on others, hath established and maintained false religions over the greatest part of the world, and through all time; That to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical; that even the forcing him to support this or that teacher of his own religious persuasion, is depriving him of the comfortable liberty of giving his contributions to the particular pastor whose morals he would make his pattern, and whose power he feels most persuasive to righteousness, and is withdrawing from the ministry those temporal rewards, which proceeding from an approbation of their personal conduct, are an additional incitement to earnest and unremitting labors for the instruction of mankind. That our civil rights have no dependence on our religious opinions, any more than our opinions in physics or geometry; that, therefore, the proscribing any citizen as unworthy of the public confidence by laying upon him an incapacity of being called to the offices of trust and emolument, unless he profess or renounce this or that religious opinion, is depriving him injuriously of those privileges and advantages to which in common with his fellow citizens he has a natural right; That it tends also to corrupt the principles of that very religion it is meant to encourage, by bribing, with a monopoly of worldly honors and emoluments, those who will externally profess and conform to it; that though indeed these are criminals who do not withstand such temptation, yet neither are those innocent who lay the bait in their way; That to suffer the civil magistrate to intrude his powers into the field of opinion and to restrain the profession or propagation of principles, on the supposition of their ill tendency, is a dangerous fallacy, which at once destroys all religious liberty, because he being of course judge of that tendency, will make his opinions the rule of judgment, and approve or condemn the sentiments of others only as they shall square with or differ from his own; . . . And finally, that truth is great and will prevail if left to herself, that she is the proper and sufficient antagonist to error, and has nothing to fear from the conflict, unless by human interposition disarmed of her natural weapons, free argument
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and debate, errors ceasing to be dangerous when it is permitted freely to contradict them. Be it therefore enacted by the General Assembly, That no man shall be compelled to frequent or support any religious worship, place or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in nowise diminish, enlarge, or affect their civil capacities. And though we well know this Assembly, elected by the people for the ordinary purposes of legislation only, have no power to restrain the acts of succeeding assemblies, constituted with the powers equal to our own, and that therefore to declare this act irrevocable, would be of no effect in law, yet we are free to declare, and do declare, that their rights hereby asserted are of the natural rights of mankind, and that if any act shall be hereafter passed to repeal the present or to narrow its operation, such act will be an infringement of natural right.
THREE PENCE TAX FOR RELIGION That the same authority that can call for each citizen to contribute three pence only of his property for the support of only one establishment, may force him to conform to any one establishment, in all cases whatsoever. —James Madison, Memorial and Remonstrance Against Religious Assessments, 1795
Memorial and Remonstrance Against Religious Assessments, James Madison 1785. To the Honorable General Assembly of the Commonwealth of Virginia. A Memorial and Remonstrance (in part).
We, the subscribers, citizens of the said Commonwealth, having taken into serious consideration, a Bill printed by order of the last Session of
General Assembly, entitled “A Bill establishing a provision for teachers of the Christian Religion,” and conceiving that the same, if finally armed with the sanctions of a law, will be a dangerous abuse of power, are bound as faithful members of a free State, to remonstrate against it, and to declare the reasons by which we are determined. We remonstrate against the said Bill, Because we hold it for a fundamental and undeniable truth, “that religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence.”28 The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right. . . . Because, it is proper to take alarm at the first experiment on our liberties. We hold this prudent jealousy to be the first duty of citizens, and one of [the] noblest characteristics of the late Revolution. The freemen of America did not wait till usurped power had strengthened itself by exercise, and entangled the question in precedents. They saw all the consequences in the principle, and they avoided the consequences by denying the principle. We reverse this lesson too much, soon to forget it. Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? That the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever? . . . What influence in fact have ecclesiastical establishments had on Civil Society? In some instances they have been seen to erect a spiritual tyranny on the ruins of Civil authority; in many instances they have been seen upholding the thrones of political tyranny; in no instance have they been seen the guardians of the liberties of the people. Rulers who wished to subvert the public liberties, may have found an established clergy convenient auxiliaries. A just government, instituted to secure and perpetuate it, needs them not. Such a government will be best supported by protecting every citizen in the enjoyment of his Religion with the same equal hand which
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Church Opposition to Schools of the Republic
protects his person and his property; by neither invading the equal rights by any Sect, nor suffering any Sect to invade those of another. . . . Because, it (the proposed Virginia Bill) will destroy that moderation and harmony which the forbearance of our laws to intermeddle with Religion, has produced amongst its several sects. Torrents of blood have been spilt in the old World, by vain attempts of the secular arm to extinguish Religious discord, by proscribing all difference in Religious opinions. Time has at length revealed the true remedy. Every relaxation of narrow and rigorous policy, wherever it has been tried, has been found to assuage the disease. The American Theatre has exhibited proofs, that equal and complete liberty, if it does not wholly eradicate it, sufficiently destroys its malignant influence on the health and prosperity of the State. If with the salutary effects of this system under our own eyes, we begin to contract the bonds of Religious freedom, we know no name that will too severely reproach our folly. At least let warning be taken at the first fruit of the threatened innovation. The very appearance of the Bill has transformed that “Christian forbearance,29 love and charity,” which of late mutually prevailed, into animosities and jealousies, which may not soon be appeased. What mischiefs may not be dreaded should this enemy to the public quiet be armed with the force of a law? . . . . . . We, the subscribers, say, that the General Assembly of the Commonwealth have no such authority: And that no effort may be omitted in our part against so dangerous an usurpation, we oppose to it, this remonstrance; earnestly praying, as we are in duty bound, that the Supreme Lawgiver of the Universe, by illuminating those to whom it is addressed, may on the one hand turn their councils from every act which would affront his holy prerogative, or violate the trust committed to them: and on the other, guide them into every measure which may be worthy of his [blessing, may re]dound to their own praise, and may establish more firmly the liberties, the prosperity, and the Happiness of the Commonwealth.
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Church Opposition to Schools of the Republic
The idea of “schools of the republic,” or public schools, arose in the era of Enlightenment from
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about 1740 to 1800 in Germany, France, and America, the time of revolution and the forming of new republics. Earlier, universal education was far from the most progressive contemplation, and ignorance and prejudice retarded the human condition on both sides of the Atlantic.30 With the breadth of change emanating from the Enlightenment, a new secular and utilitarian spirit found the old system of religious education to be not only inadequate, but also a primary reason for the vast social ills that restrained the human spirit, manifested inequality, and resulted in a general denial of prospects in life for the poor and ignorant. Ultimately, the American and French revolutionaries of the 1790s, versed in the philosophy of the Enlightenment, moved to fill the educational vacuum that had long existed.31 Universal primary schooling became the ideal of a progressive nation. Essential to that ideal was the assumption that “children belonged to the nation as well as their families.”32 As Danton, the great French revolutionary, declared, “I too am a father, but my son does not belong to me, he belongs to the Republic.”33 In short, the education of the children was too important to be left to the parents and the Church. The theory of public secular schools that emerged from the Enlightenment philosophy was advanced by the founding fathers of the American Constitution: the best education was to be thorough and common to all children in public schools, and schools were to be nonsectarian and religiously neutral. As one commissioner of the Directory in the French Revolution in Paris stated, predating Jefferson’s reference to a wall, “it is necessary to erect a wall of separation between education and religion.”34 For a brief time in the 1790s, it appeared that public nonsectarian schools created during the Revolution might gain a foothold and succeed in France, but there soon emerged a great deterrent that one French historian called the “imperious demands for instruction in religious doctrines.”35 The Catholic Church was convinced that education not conducted by the Church itself could lead only to a general perversion of morals and the degeneration of the condition of society.36 In France, intense competition developed between the Catholic Church and the public schools.37 The competition between the newly created public and parochial schools intensified and was manifested in various ways, including
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community discord among teachers, parents, and pupils, even deteriorating into physical strife and pitched street fights. Moreover, the social and religious pressures resulted in the public schools drawing a poorer and smaller clientele of students than did the parochial schools. In the end, the new experiment of public schools in France was eclipsed as the government no longer sought to preserve a secular atmosphere in the public schools. The public school classrooms returned to the use of “religious texts, served as sacristans to the clergy and conformed to the religious ‘prejudices’ of the parents.”38 By 1811, virtually “all primary education had religious coloration;”39 thus, the public secular school ideal, fostered and given philosophical sustenance by the rationale and reasoning of the Enlightenment, never really obtained reality in revolutionary and postrevolutionary France. Public common schools fared better in America, where religious divisiveness and discord were not indigenous and well entrenched. In the early 1800s, various states set about creating public school systems that would not offend the diverse religious beliefs of those who populated the new nation. Commager’s cogent phrase, “How Europe Imagined and America Realized the Enlightenment,” was nowhere more evident than in the creation of American public schools.40 In the new republic, unlike in France and England, secularization and rationalism had made “inroads on the claims of the clergy to preeminence in the public arena,” and in particular with regard to public education.41 The early experience of England and the colonies taught that investing authority of the state in a privileged church had produced very little except “resentment and acrimony”42 and that “a broad text of toleration and equality” should be the goal of society and its schools.43 In America, there emerged, after much discord, an understanding that the separation of church and state would not impair morals or weaken any religion, but rather would strengthen both the state and the church.44 Yet America was not destined to cleanly escape the problems of the age-old religious strife of Europe that had prevented the successful establishment of a system of public schools in France and England. Each state in America had its own instances of religious opposition to the
creation of public schools intertwined with attempts by various religious groups to encroach on the school curriculum and to obtain public tax funds to support their own sectarian schools. Such conflict was particularly evident in New England and other original colonies, where church and state had not been separated prior to the American Revolution. As observed in Chapter 2 of this book, much opposition to public schools was manifested by Protestant churches in Massachusetts, developing into what Cubberley would later call “The Battle for Free State Schools.” 45 Not only was this battle joined by people who simply did not want to pay taxes for public schools, but also the opposition largely emanated from the ranks of conservative Protestant ministers who argued that public schools would injure religious schools’ attendance, thereby reducing their influence and thus retarding the progress and welfare of the churches. More intense objection came from more extreme Protestant sects, which feared that there was an ulterior motive of the state, “priestcraft,” the purpose of which was to create a state school that would then evolve into a state church.46 In Massachusetts, Horace Mann was roundly castigated as being antireligious and the principal exponent of “Godless public schools.”47 Cubberley, in writing about New England Puritan opposition to the creation of public schools, observed: “Those who believed in the old system of religious instruction, . . . those who desired to . . . stop the development of the public schools, united their forces in this first big attack (in America) against secular education.”48 Thus, a substantial segment of the Protestants opposed public schools and vigorously denounced them because they were nonsectarian and did not espouse particular religious beliefs. In 1838, Massachusetts public schools were assailed as being incapable of teaching moral values if they remained nonsectarian. It was said that “[t]he Bible . . . the need of a Redeemer . . . the holy employments of the redeemed in heaven—should be daily and thoroughly taught in the schools.”49 Later, in 1846, a great hue and cry arose in Massachusetts, where Protestant fundamentalist groups charged that the increase in “intemperance, crime, and juvenile depravity in the state was due to the ‘Godless schools.’”50
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The Public School and Religion
STRUGGLE OF RELIGION AND PUBLIC SCHOOLS In predominately Catholic countries, notably France and Italy, and later, almost every country in Latin America, Catholics and anticlerical liberals engaged in protracted struggles over matters of public education. [I]n the English-speaking Protestant North Atlantic, the German and Irish Catholic diaspora of the 1840s thrust the religious problem into center stage. . . . As one American Catholic writer put it in 1850, the battle over religion and education is ‘the fierce contest in Ireland; the same in France; the same in Belgium; the same in Prussia and the petty states of Germany; the same in Bavaria; the same in Austria; the same in Piedmont . . .’ The education issue became especially volatile in the United States. —John T. McGreevy Possibly the greatest early discord occurred in New York City, where Catholic immigrants from Europe, who constituted a large percentage of the total population, launched a determined resistance to the establishment of public schools. This episode was the principal event in the establishment of the parochial schools in America. In New York, Catholic clergy in the late 1830s and 1840s objected to the creation of public schools for the same reasons that were advanced by the Catholic Church in France during and after the French Revolution. The Catholic argument was basically twofold: first, by excluding sectarianism, positive church dogma was banished from public schools, and, second, if the public schools were to be sectarian, they could only be of the Catholic faith.51 If the public schools were not to teach Catholic doctrine as the only brand of religion, then the public schools would be promoting infidelity to Christianity; therefore, if the public common schools did not convey the Catholic theology, then Catholic children would not be permitted to attend.52 The Catholic Church defined religion as being inseparable from specific denominational doctrines and denied that any school could teach moral principles in the absence of the Catholic catechism.53 This reasoning therefore effectively foreclosed the possibility that the Catholic Church could ever support public common schools.
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The only condition under which an accord could be reached with the Catholic Church to participate in a system of education was for the state to pay for a “Catholic Public School System.” Any type of public school system that did not inculcate Catholic doctrine and that was nonsectarian and nondenominational was unacceptable. Thus, the permanent and insoluble problem was set, wherein fundamentalist Protestant groups and the Catholic Church could never agree with the principles and philosophy that form the foundation of public schools. As in France, the Catholic Church and fundamentalist Protestant groups opposed the creation of secular public schools in America. This struggle remains alive and well today. The U.S. Supreme Court decisions in Agostini, 54 Helms,55 and Zelman56 indicate that this church opposition to the idea of public common schools has now been accepted by the Court and that the religion provisions of the First Amendment will no longer be interpreted to prevent tax funds being appropriated to strengthen church schools. Thus, the ideal of public schools, envisaged as perhaps the most important aspect of a republic—a system of universal, secular common schools supported by general taxation—an Enlightenment idea that confronted severe opposition at its birth, appears to be waning in its political strength relative to the political power of private and ecclesiastical schools. The opinions of the members of the U.S. Supreme Court today, however, clearly reflect the weight and political prominence of conservative religion’s antipathy toward secular public schools. Bills abound in state legislatures that propose various schemes to utilize public tax revenues to fund private and religious schools. Perhaps this trend in reducing the wall of separation may foretell the slowly engulfing twilight for the public school experiment in America. The following pages of this chapter present the issues pertaining to the establishment of religion and the progression of Supreme Court decisions allowing state and federal laws to channel public tax funds to sectarian schools.
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The Public School and Religion
The public school is founded on three fundamental assumptions that relate either directly or indirectly to the issue of church and state. First,
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education is a benefit to the entire society, and the legislature has the power to tax all for support. Essential to this concept is that general taxation is used for support and that taxation is not levied merely on those who use the public schools—the childless and those who send their children to private schools must all pay their fair share. Thaddeus Stevens in 1835, in dramatically defeating a legislative proposal to repeal general taxation for education, enunciated the principle of universal responsibility for universal education in Pennsylvania. Opponents of public schools claimed that it was unjust to tax people to educate the children of others; Stevens responded thusly: It is for their own benefit, inasmuch as it perpetrates the government and ensures the due administration of the laws under which they live, and by which their lives and property are protected. Why do they not urge the same objection against all other taxes? The industrious, thrifty, rich farmer pays a heavy county tax to support criminal courts, build jails, and pay sheriffs and jail keepers, and yet probably he never has had and probably never will have any direct personal use for them. . . . He cheerfully pays burdensome taxes which are necessarily levied to support and punish convicts, but loudly complains of that which goes to prevent his fellow being from becoming a criminal and to obviate the necessity of those humiliating institutions.57
To Stevens, education was a public obligation that must be nurtured to develop the entire civic intelligence to better govern through an elective republic. Those who do not directly benefit from public education certainly gain indirectly through association with an enlightened citizenry. Second, education provided by the state must be secular, and individual religious beliefs should not be inhibited. An important element of the secular state envisioned by Jefferson was a system of public schools that could convey all necessary temporal knowledge and yet not impede religious freedom. The power of the state could not be used to inculcate religious beliefs, nor could the authority of the state to tax be used to assist religious training. An extract from an opinion by the Iowa Supreme Court forcefully expresses the idea that public tax funds should not be used for religious
instruction and, further, should not be used by religious groups to proselytize: If there is any one thing which is well settled in the policies and purposes of the American people as a whole, it is the fixed and unalterable determination that there shall be an absolute and unequivocal separation of church and state, and that our public school system, supported by the taxation of the property of all alike—Catholic, Protestant, Jew, Gentile, believer and infidel—shall not be used directly or indirectly for religious instruction, and above all that it shall not be made an instrumentality of proselyting influence, in favor of any religious organization, sect, creed, or belief.58
Third, the state can compel all parents to provide their children with a minimum secular education. This assumption is essential to the concept of general mass education. Every government has as a goal its own continuation and preservation, and in a republic, an educated electorate is fundamental. As such, the state must be conceived as parens patriae in enforcing minimum educational and welfare requirements. The validity of the state’s interest was established years ago in Prince v. Massachusetts.59 The primary issue emanates from placing the force and power of the state, whether it be through taxation or other public policy decision, in a position to either enhance or inhibit religion. This was one of the most obstinate problems that Horace Mann was forced to overcome in his great crusade to found free common schools in Massachusetts. Mann vigorously maintained that the only purpose of religious education in the schools was to convey to each child the idea and respect of religious liberty. American public schools are secular and not merely nonsectarian; this is necessary if separation of church and state is to be complete. The important position of education in the governmental process is the key to maintaining religious liberty. Pfeffer observes that to be secular does not mean to be “Godless”; it is merely a guarantee that the state will not dictate or encroach on religious beliefs of the individual. He says: A secular state requires a secular state school; but the secularization of the state does not mean the secularization of society. Only by accepting a totalitarian philosophy, either in religion or politics or both, can [it] be equated with society. We are a religious people even though our government
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Public Taxation to Support Religious Schools is secular. Our democratic state must be secular, for it does not purport or seek to pre-empt all of societal life. Similarly the public school need not and should not be the totality of the education process.60
In this regard, the public school ideal in America precludes religious indoctrination in the public schools, and it proscribes the state from preempting all the child’s time, thereby allowing substantial opportunity for religious training outside the school by parents and churches.61 Whether the U.S. Supreme Court will continue to disallow the providing of public funds to parochial schools is a continuing saga, the outcome of which is still uncertain.
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Public Taxation to Support Religious Schools
The U.S. Supreme Court, in the case of Cochran v. Louisiana State Board of Education, ruled that a state plan to provide textbooks to parochial school students does not violate the Fourteenth Amendment.62 The Court in this case was not asked to determine whether the First Amendment was violated. The decision in the Cochran case was rendered in 1930, 10 years before the Court decided in the Cantwell case that the religious liberties of the First Amendment not only provided protection against actions by the Congress, but also, when applied through the Fourteenth Amendment, protected the individual from arbitrary acts of the states.63 However, the Court in this case did identify and adopt the “child benefit” concept, which has subsequently been used in many instances to defend the appropriation of public funds for private and parochial school use. The Supreme Court in Everson v. Board of Education, a 1947 decision, held that the use of public funds for transportation of parochial school children does not violate the First Amendment. However, many state constitutions impose stricter regulations concerning separation of church and state than does the U.S. Constitution, and as a result, the highest courts in several states have ruled that their state constitutions would be violated if public funds were used to provide transportation for parochial school pupils.
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In the Everson case, the legislature of New Jersey enacted a law that allowed boards of education to provide transportation for parochial school children at public expense. A school board, acting under this statute, authorized reimbursement of parents for bus fares spent in sending their children to parochial schools. The plaintiff attacked the statute on the grounds that it violated the First and Fourteenth Amendments of the federal Constitution. The Court, in a 5–4 decision, ruled that the statute did not violate the Constitution. The Court adopted the “child benefit” doctrine and reasoned that the funds were expended for the benefit of the individual child and not for religious purposes. The transportation law was a general program that provided assistance in getting children safely to and from school, regardless of their religion. In 1968, the Supreme Court in Board of Education of Central School District v. Allen applied the reasoning of the Cochran and Everson cases in upholding as constitutional a New York statute that provided for distribution of textbooks free of charge to students attending parochial schools. The Court stated that there was no indication that the books were being used to teach religion and that, since private schools serve a public purpose and perform a secular as well as a sectarian function, such an expenditure of public funds is not unconstitutional.64
Establishment Clause Does Not Prohibit Spending Tax Funds to Pay Bus Fares for Parochial School Students
Everson v. Board of Education Supreme Court of the United States, 1947. 330 U.S. 1, 67 S. Ct. 504.
Mr. Justice BLACK delivered the opinion of the Court. A New Jersey statute authorizes its local school districts to make rules and contracts for the transportation of children to and from schools. The appellee, a township board of education acting pursuant to this statute authorized
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reimbursement to parents of money expended by them for the bus transportation of their children on regular buses operated by the public transportation system. Part of this money was for the payment of transportation of some children in the community to Catholic parochial schools. These church schools give their students, in addition to secular education, regular religious instruction conforming to the religious tenets and modes of worship of the Catholic Faith. The superintendent of these schools is a Catholic priest. The appellant, in his capacity as a district taxpayer, filed suit in a State court challenging the right of the Board to reimburse parents of parochial school students. He contended that the statute and the resolution passed pursuant to it violated both the State and the Federal Constitutions. That court held that the legislature was without power to authorize such payment under the State constitution. . . . The only contention here is that the State statute and the resolution, in so far as they authorized reimbursement to parents of children attending parochial schools, violate the Federal Constitution in these two respects, which to some extent, overlap. First. They authorize the State to take by taxation the private property of some and bestow it upon others, to be used for their own private purposes. This, it is alleged, violates the due process clause of the Fourteenth Amendment. Second. The statute and the resolution forced inhabitants to pay taxes to help support and maintain schools which are dedicated to, and which regularly teach, the Catholic Faith. This is alleged to be a use of State power to support church schools contrary to the prohibition of the First Amendment, which the Fourteenth Amendment made applicable to the states. First. The due process argument that the State law taxes some people to help others carry out their private purposes is framed in two phases. The first phase is that a state cannot tax A to reimburse B for the cost of transporting his children to church schools. This is said to violate the due process clause because the children are sent to these church schools to satisfy the personal desires of their parents, rather than the public’s interest in the general education of all children. This argument, if valid, would apply equally to prohibit state payment for the transportation of children to any nonpublic school, whether
operated by a church, or any other nongovernment individual or group. But, the New Jersey legislature has decided that a public purpose will be served by using tax-raised funds to pay the bus fares of all school children, including those who attend parochial schools. The New Jersey Court of Errors and Appeals has reached the same conclusion. The fact that a state law, passed to satisfy a public need, coincides with the personal desires of the individuals most directly affected is certainly an inadequate reason for us to say that a legislature has erroneously appraised the public need. . . . It is much too late to argue that legislation intended to facilitate the opportunity of children to get a secular education serves no public purpose. Cochran v. Louisiana State Board of Education, 281 U.S. 370, 50 S. Ct. 335 (1930). . . . The same thing is no less true of legislation to reimburse needy parents, or all parents, for payment of the fares of their children so that they can ride in public buses to and from schools rather than run the risk of traffic and other hazards incident to walking or “hitchhiking.” . . . Nor does it follow that a law has a private rather than a public purpose because it provides that tax-raised funds will be paid to reimburse individuals on account of money spent by them in a way which furthers a public program. . . . Subsidies and loans to individuals such as farmers and home owners, and to privately owned transportation systems, as well as many other kinds of businesses, have been commonplace practices in our state and national history. Insofar as the second phase of the due process argument may differ from the first, it is by suggesting that taxation for transportation of children to church schools constitutes support of a religion by the State. But if the law is invalid for this reason, it is because it violates the First Amendment’s prohibition against the establishment of religion by law. This is the exact question raised by appellant’s second contention, to consideration of which we now turn. Second. The New Jersey statute is challenged as a “law respecting an establishment of religion.” The First Amendment, as made applicable to the states by the Fourteenth, . . . commands that a state “shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” These words of the First Amendment reflected in the minds of early Americans a vivid
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Public Taxation to Support Religious Schools
mental picture of conditions and practices which they fervently wished to stamp out in order to preserve liberty for themselves and for their posterity. Doubtless their goal has not been entirely reached; but so far has the Nation moved toward it that the expression “law respecting an establishment of religion” probably does not so vividly remind present-day Americans of the evils, fears, and political problems that caused that expression to be written into our Bill of Rights. . . . The “establishment of religion” clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or nonattendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect “a wall of separation between Church and State.” Reynolds v. United States, 98 U.S. at page 164. We must consider the New Jersey statute in accordance with the foregoing limitations imposed by the First Amendment. But we must not strike that state statute down if it is within the state’s constitutional power even though it approaches the verge of that power. . . . New Jersey cannot consistently with the “establishment of religion” clause of the First Amendment contribute tax-raised funds to the support of an institution which teaches the tenets and faith of any church. On the other hand, other language of the amendment commands that New Jersey cannot hamper its citizens in the free exercise of their own religion. Consequently, it cannot exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Nonbelievers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from
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receiving the benefits of public welfare legislation. While we do not mean to intimate that a state could not provide transportation only to children attending public schools, we must be careful, in protecting the citizens of New Jersey against state-established churches, to be sure that we do not inadvertently prohibit New Jersey from extending its general State law benefits to all its citizens without regard to their religious belief. Measured by these standards, we cannot say that the First Amendment prohibits New Jersey from spending tax-raised funds to pay the bus fares of parochial school pupils as a part of a general program under which it pays the fares of pupils attending public and other schools. It is undoubtedly true that children are helped to get to church schools. There is even a possibility that some of the children might not be sent to the church schools if the parents were compelled to pay their children’s bus fares out of their own pockets when transportation to a public school would have been paid for by the State. The same possibility exists where the state requires a local transit company to provide reduced fares to school children including those attending parochial schools, or where a municipally owned transportation system undertakes to carry all school children free of charge. Moreover, statepaid policemen, detailed to protect children going to and from church schools from the very real hazards of traffic, would serve much the same purpose and accomplish much the same result as state provisions intended to guarantee free transportation of a kind which the state deems to be best for the school children’s welfare. And parents might refuse to risk their children to the serious danger of traffic accidents going to and from parochial schools, the approaches to which were not protected by policemen. Similarly, parents might be reluctant to permit their children to attend schools which the state had cut off from such general government services as ordinary police and fire protection, connections for sewage disposal, public highways and sidewalks. Of course, cutting off church schools from these services, so separate and so indisputably marked off from the religious function, would make it far more difficult for the schools to operate. But such is obviously not the purpose of the First Amendment. That Amendment requires
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the state to be neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary. State power is no more to be used so as to handicap religions, than it is to favor them. . . . The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach. New Jersey has not breached it here. Affirmed.
CASE NOTES 1. A Pennsylvania statute that allowed the transportation of private schoolchildren beyond school district boundary lines was ruled constitutional. School District of Pittsburgh v. Commonwealth Department of Education, 33 Pa. Commw. 535, 382 A.2d 772 (1978), appeal dismissed, 443 U.S. 901, 99 S. Ct. 3091 (1979). See also Springfield School District v. Department of Education, 483 Pa. 539, 397 A.2d 1154 (1979), appeal dismissed, 443 U.S. 901, 99 S. Ct. 3091 (1979). 2. Statutes that authorize public transportation for parochial school children to travel to and from the private schools do not constitute mandatory authority for the public schools to also transport such children for educational field trips. Cook v. Griffin, 47 A.D.2d 23, 364 N.Y.S.2d 632 (1975). See also Wolman v. Walter, 433 U.S. 229, 97 S. Ct. 2593 (1977).
Loan of Textbooks to Parochial School Students Does Not Violate Establishment Clause
Board of Education of Central School District No. 1 v. Allen Supreme Court of the United States, 1968. 392 U.S. 236, 88 S. Ct. 1923.
Mr. Justice WHITE delivered the opinion of the Court. A law of the State of New York requires local public school authorities to lend textbooks free of charge to all students in grades seven through
twelve; students attending private schools are included. This case presents the question whether this statute is a “law respecting an establishment of religion, or prohibiting the free exercise thereof,” and so in conflict with the First and Fourteenth Amendments to the Constitution, because it authorizes the loan of textbooks to students attending parochial schools. We hold that the law is not in violation of the Constitution. . . . Beginning with the 1966–1967 school year, local school boards were required to purchase textbooks and lend them without charge “to all children residing in such district who are enrolled in grades seven to twelve of a public or private school which complies with the compulsory education law.” New York Education Law, § 701 (Supp. 1967). Appellant Board of Education of Central School District No. 1 in Rensselaer and Columbia counties brought suit in the New York courts against appellee James Allen. The complaint alleged that § 701 violated both the State and Federal Constitutions; that if appellants, in reliance on their interpretation of the Constitution, failed to lend books to parochial school students within their counties, appellee Allen would remove appellants from office; and that to prevent this, appellants were complying with the law and submitting to their constituents a school budget including funds for books to be lent to parochial school pupils. Appellants therefore sought a declaration that § 701 was invalid, an order barring appellee Allen from removing appellants from office for failing to comply with it, and another order restraining him from apportioning state funds to school districts for the purchase of textbooks to be lent to parochial students. . . . Everson and later cases have shown that the line between state neutrality to religion and state support of religion is not easy to locate. “The constitutional standard is the separation of Church and State. The problem, like many problems in constitutional law, is one of degree.” . . . The test may be stated as follows: what is the purpose and the primary effect of the enactment? If either is the advancement or inhibition of religion, then the enactment exceeds the scope of legislative power as circumscribed by the Constitution. That is to say that to withstand the strictures of the Establishment Clause there must be a secular legislative purpose and a primary effect that neither advances
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Public Taxation to Support Religious Schools nor inhibits religion. Everson v. Board of Education. . . . 374 U.S. at 222, 83 S. Ct. at 1571.
This test is not easy to apply. . . . The statute upheld in Everson would be considered a law having “a secular legislative purpose and a primary effect that neither advances nor inhibits religion.” We reach the same result with respect to the New York law requiring school books to be loaned free of charge to all students in specified grades. The express purpose of § 701 was stated by the New York Legislature to be furtherance of the educational opportunities available to the young. . . . The law merely makes available to all children the benefits of a general program to lend school books free of charge. Books are furnished at the request of the pupil and ownership remains, at least technically, in the State. Thus no funds or books are furnished to parochial schools, and the financial benefit is to parents and children, not to schools. Perhaps free books make it more likely that some children choose to attend a sectarian school, but that was true of the state-paid bus fares in Everson and does not alone demonstrate an unconstitutional degree of support for a religious institution. . . . The major reason offered by appellants for distinguishing free textbooks from free bus fares is that books, but not buses, are critical to the teaching process, and in a sectarian school that process is employed to teach religion. However, this Court has long recognized that religious schools pursue two goals, religious instruction and secular education. In the leading case of Pierce v. Society of Sisters, 268 U.S. 510, 45 S. Ct. 571 (1925), the Court held that although it would not question Oregon’s power to compel school attendance or require that the attendance be at an institution meeting state-imposed requirements as to quality and nature of curriculum, Oregon had not shown that its interest in secular education required that all children attend publicly operated schools. A premise of this holding was the view that the State’s interest in education would be served sufficiently by reliance on the secular teaching that accompanied religious training in the schools maintained by the Society of Sisters. Since Pierce, a substantial body of case law has confirmed the power of the States to insist that attendance at private schools, if it is to satisfy state compulsory-attendance laws, be
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at institutions which provide minimum hours of instruction, employ teachers of specified training, and cover prescribed subjects of instruction. Indeed, the State’s interest in assuring that these standards are being met has been considered a sufficient reason for refusing to accept instruction at home as compliance with compulsory education statutes. These cases were a sensible corollary of Pierce v. Society of Sisters: if the State must satisfy its interest in secular education through the instrument of private schools, it has a proper interest in the manner in which those schools perform their secular educational function. Another corollary was Cochran v. Louisiana State Board of Education, 281 U.S. 370, 50 S. Ct. 335 (1930), where appellants said that a statute requiring school books to be furnished without charge to all students, whether they attend public or private schools, did not serve a “public purpose,” and so offended the Fourteenth Amendment. Speaking through Chief Justice Hughes, the Court summarized as follows its conclusion that Louisiana’s interest in the secular education being provided by private schools made provision of textbooks to students in those schools a properly public concern: “[The State’s] interest is education, broadly; its method, comprehensive. Individual interests are aided only as the common interest is safeguarded.” 281 U.S. at 375, 50 S. Ct. at 336. Underlying these cases, and underlying also the legislative judgments that have preceded the court decisions, has been a recognition that private education has played and is playing a significant and valuable role in raising national levels of knowledge, competence, and experience. Americans care about the quality of the secular education available to their children. They have considered high quality education to be an indispensable ingredient for achieving the kind of nation, and the kind of citizenry, that they have desired to create. Considering this attitude, the continued willingness to rely on private school systems, including parochial systems, strongly suggests that a wide segment of informed opinion, legislative and otherwise, has found that those schools do an acceptable job of providing secular education to their students. This judgment is further evidence that parochial schools are performing, in addition to their sectarian function, the task of secular education.
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Against this background of judgment and experience, unchallenged in the meager record before us in this case, we cannot agree with appellants either that all teaching in a sectarian school is religious or that the processes of secular and religious training are so intertwined that secular textbooks furnished to students by the public are in fact instrumental in the teaching of religion. . . . Nothing in this record supports the proposition that all textbooks, whether they deal with mathematics, physics, foreign languages, history, or literature, are used by the parochial schools to teach religion. No evidence has been offered about particular schools, particular courses, particular teachers, or particular books. We are unable to hold, based solely on judicial notice, that this statute results in unconstitutional involvement of the State with religious instruction or that § 701, for this or the other reasons urged, is a law respecting the establishment of religion within the meaning of the First Amendment. . . .
relief to them as this case involves is not in itself a serious burden to taxpayers and I had assumed it to be as little serious in principle. Study of this case convinces me otherwise. The Court’s opinion marshals every argument in favor of state aid and puts the case in its most favorable light, but much of its reasoning confirms my conclusions that there are no good grounds upon which to support the present legislation. In fact, the undertones of the opinion, advocating complete and uncompromising separation of Church from State, seem utterly discordant with its conclusion yielding support to their commingling in educational matters. The case which irresistibly comes to mind as the most fitting precedent is that of Julia who, according to Byron’s reports, “whispering ‘I will ne’er consent,’—consented.”
4. What is the implication of Justice White’s statement that “parochial schools are performing, in addition to their sectarian function, the task of secular education”? 5. How does Justice Black, in dissent in Allen, distinguish textbooks from transportation in Everson, in which he wrote the majority opinion?
CASE NOTES 1. Justice Black wrote the majority opinion in Everson and dissented in Allen. This is particularly interesting, since the majority opinion by Justice White relied heavily on the interpretation and meaning of the majority in Everson. 2. The Cochran case in Louisiana was preceded by Borden v. Louisiana State Board of Education, 168 La. 1005, 123 So. 655 (1929), which held that the Acts of 1928, Nos. 100 and 143, the same Acts contested in Cochran, were not violative of constitutional provisions prohibiting public funds for private or benevolent purposes and were not adverse to due process requirements. 3. Appellants in Allen argued that transportation of parochial pupils may be constitutional, whereas providing textbooks is not. How does the Court react to this argument? Compare the Court’s opinion to the dissenting opinion of Justice Jackson in the Everson case. In Everson, Justice Jackson said: I find myself, contrary to first impressions, unable to join in this decision. I have a sympathy, though it is not ideological, with Catholic citizens who are compelled by law to pay taxes for public schools, and also feel constrained by conscience and discipline to support other schools for their own children. Such
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The Establishment Clause and the Lemon Test
The decision by the Supreme Court in the Allen case65 created many questions on the part of both public and parochial school leaders throughout the country. The language of Justice White, speaking for the majority, was unclear, failing to delineate First Amendment restrictions in providing state aid to parochial schools. White applied the public purpose theory and reasoned that the state could give assistance to religious schools so long as the aid was provided for only secular services in the operation of parochial schools. He said that a wide segment of informed opinion, legislative and otherwise, has found that [parochial] schools do an acceptable job of providing secular education to their students. This judgment is further evidence that parochial schools are performing, in addition to their sectarian function, the task of secular education.66 [emphasis added]
This statement was taken by many parochial school advocates to mean that a state could permissibly provide funds to parochial schools for such things as teachers’ salaries, operations,
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The Establishment Clause and the Lemon Test
buildings, and so on, so long as the funds were used by the parochial schools only for “public secular purposes.” State legislatures were suddenly flooded with hundreds of bills to provide state support to parochial schools; some were passed and others, for various reasons, failed.67
THE LEMON TEST It was into this fertile area of conjecture that the U.S. Supreme Court walked in 1971, when it was asked to rule on the constitutionality of two such state acts from Pennsylvania and Rhode Island. This was the now famous Lemon v. Kurtzman case, which first enunciated the three-part test of constitutionality of state acts pertaining to the establishment of religion. Both states, capitalizing on the vagueness of Allen, were attempting to give public funds to parochial schools. The Supreme Court struck down the statutes of both states. The Court found the “secular purpose” standard alone to be inadequate and then added another standard, that of “excessive entanglement.” This standard seeks to prevent the state from infringing on the separate rights of religion by becoming too intermingled with the process of religion. The Supreme Court enunciated a three-part test for determining whether a state statute is constitutional under the Establishment Clause of the First Amendment: (1) the statute must have a secular legislative purpose, (2) its principal or primary effect must be one that neither advances nor inhibits religion, and (3) it must not foster excessive government entanglement with religion.
State Aid to Parochial Schools Through Salary Supplements and Purchase of Services Constitutes Impermissible Entanglement Between Church and State
Lemon v. Kurtzman Supreme Court of the United States, 1971. 403 U.S. 602, 91 S. Ct. 2105.
Mr. Chief Justice BURGER delivered the opinion of the Court.
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These two appeals raise questions as to Pennsylvania and Rhode Island statutes providing state aid to church-related elementary and secondary schools. Both statutes are challenged as violative of the Establishment and Free Exercise Clauses of the First Amendment and the Due Process Clause of the Fourteenth Amendment. Pennsylvania has adopted a statutory program that provides financial support to nonpublic elementary and secondary schools by way of reimbursement for the cost of teachers’ salaries, textbooks, and instructional materials in specified secular subjects. Rhode Island has adopted a statute under which the State pays directly to teachers in nonpublic elementary schools a supplement of 15% of their annual salary. Under each statute state aid has been given to church-related educational institutions. We hold that both statutes are unconstitutional. The Rhode Island Salary Supplement Act, R.I. Gen. Laws § 16-51-1 et seq., was enacted in 1969. It rests on the legislative finding that the quality of education available in nonpublic elementary schools has been jeopardized by the rapidly rising salaries needed to attract competent and dedicated teachers. The Act authorizes state officials to supplement the salaries of teachers of secular subjects in nonpublic elementary schools by paying directly to a teacher an amount not in excess of 15% of his current annual salary. . . . In order to be eligible for the Rhode Island salary supplement, the recipient must teach in a nonpublic school at which the average per-pupil expenditure on secular education is less than the average in the State’s public schools during a specified period. Appellant State Commissioner of Education also requires eligible schools to submit financial data. If this information indicates a per-pupil expenditure in excess of the statutory limitation, the records of the school in question must be examined in order to assess how much of the expenditure is attributable to secular education and how much to religious activity. The Act also requires that teachers eligible for salary supplements must teach only those subjects that are offered in the State’s public school. They must use “only teaching materials which are used in the public schools.” Finally, any teacher applying for a salary supplement must first agree in writing “not to teach a course in religion for so long as or during such time as he
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or she receives any salary supplements” under the Act. Appellees are citizens and taxpayers of Rhode Island. . . . Appellants are state officials charged with administration of the Act, teachers eligible for salary supplements under the Act, and parents of children in church-related elementary schools whose teachers would receive state salary assistance. A three-judge federal court was convened. . . . It found that Rhode Island’s nonpublic elementary schools accommodated approximately 25% of the State’s pupils. About 95% of these pupils attended schools affiliated with the Roman Catholic Church. To date some 250 teachers have applied for benefits under the Act. All of them are employed by Roman Catholic schools. The court held a hearing at which extensive evidence was introduced concerning the nature of the secular instruction offered in the Roman Catholic schools whose teachers would be eligible for salary assistance under the Act. Although the Court found that concern for religious values does not necessarily affect the content of secular subjects, it also found that the parochial school system was “an integral part of the religious mission of the Catholic Church.” The District Court concluded that the Act violated the Establishment Clause, holding that it fostered “excessive entanglement” between government and religion. In addition two judges thought that the Act had the impermissible effect of giving “significant aid to a religious enterprise.” . . . We affirm. Pennsylvania has adopted a program that has some but not all of the features of the Rhode Island program. The Pennsylvania Nonpublic Elementary and Secondary Education Act, 24 Pa. Stat. §§ 5601-9, was passed in 1968 in response to a crisis that the Pennsylvania Legislature found existed in the State’s nonpublic schools due to rapidly rising costs. The statute affirmatively reflects the legislative conclusion that the State’s educational goals could appropriately be fulfilled by government support of “those purely secular educational objectives achieved through nonpublic education. . . .” The statute authorizes appellee state Superintendent of Public Instruction to “purchase” spec ified “secular educational services” from non public schools. Under the “contracts”
authorized by the statute, the State directly reimburses nonpublic schools solely for their actual expenditures for teachers’ salaries, textbooks, and instructional materials. A school seeking reimbursement must maintain prescribed accounting procedures that identify the “separate” cost of the “secular educational service.” These accounts are subject to state audit. . . . There are several significant statutory restrictions on state aid. Reimbursement is limited to courses “presented in the curricula of the public schools.” It is further limited “solely” to courses in the following “secular” subjects: mathematics, modern foreign languages (Latin, Hebrew, and classical Greek excluded), physical science, and physical education. Textbooks and instructional materials included in the program must be approved by the state Superintendent of Public Instruction. Finally, the statute prohibits reimbursement for any course that contains “any subject matter expressing religious teaching, or the morals or forms of worship of any sect.” The Act went into effect on July 1, 1968. . . . The State has now entered into contracts with some 1,181 nonpublic elementary and secondary schools with a student population of some 535,215 pupils—more than 20% of the total number of students in the State. More than 96% of these pupils attend church-related schools, and most of these schools are affiliated with the Roman Catholic Church. Appellants brought this action in the District Court to challenge the constitutionality of the Pennsylvania statute. . . . The District Court held that the individual plaintiffs-appellants had standing to challenge the Act. . . . The court granted appellees’ motion to dismiss the complaint for failure to state a claim for relief. . . . It held that the Act violated neither the Establishment nor the Free Exercise Clause. . . . We reverse. . . . The language of the Religion Clauses of the First Amendment is at best opaque, particularly when compared with other portions of the Amendment. Its authors did not simply prohibit the establishment of a state church or a state religion, an area history shows they regarded as very important and fraught with great dangers. Instead they commanded that there should be “no law respecting an establishment of religion.”
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The Establishment Clause and the Lemon Test
A law may be one “respecting” the forbidden objective while falling short of its total realization. A law “respecting” the proscribed result, that is, the establishment of religion, is not always easily identifiable as one violative of the Clause. A given law might not establish a state religion but nevertheless be one “respecting” that end in the sense of being a step that could lead to such establishment and hence offend the First Amendment. In the absence of precisely stated constitutional prohibitions, we must draw lines with reference to the three main evils against which the Establishment Clause was intended to afford protection: “sponsorship, financial support, and active involvement of the sovereign in religious activity.” Walz v. Tax Commission, 397 U.S. 664, 668, 90 S.Ct. 1409, (1970). Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years. Three such tests may be gleaned from our cases. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, Board of Education v. Allen, (1968); finally, the statute must not foster “an excessive government entanglement with religion.” Walz, supra. Inquiry into the legislative purposes of the Pennsylvania and Rhode Island statutes affords no basis for a conclusion that the legislative intent was to advance religion. On the contrary, the statutes themselves clearly state that they are intended to enhance the quality of the secular education in all schools covered by the compulsory attendance laws. There is no reason to believe the legislatures meant anything else. A State always has a legitimate concern for maintaining minimum standards in all schools it allows to operate. As in Allen, we find nothing here that undermines the stated legislative intent; it must therefore be accorded appropriate deference. . . . The two legislatures, however, have also recognized that church-related elementary and secondary schools have a significant religious mission and that a substantial portion of their activities is religiously oriented. They have therefore sought to create statutory restrictions designed to guarantee the separation between secular and religious educational functions
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and to ensure that State financial aid supports only the former. All these provisions are precautions taken in candid recognition that these programs approached, even if they did not intrude upon, the forbidden areas under the Religion Clauses. We need not decide whether these legislative precautions restrict the principal or primary effect of the programs to the point where they do not offend the Religion Clauses, for we conclude that the cumulative impact of the entire relationship arising under the statutes in each State involves excessive entanglement between government and religion (emphasis added). . . . Rhode Island Program. The District Court made extensive findings on the grave potential for excessive entanglement that inheres in the religious character and purpose of the Roman Catholic elementary schools of Rhode Island, to date the sole beneficiaries of the Rhode Island Salary Supplement Act. The church schools involved in the program are located close to parish churches. . . . The school buildings contain identifying religious symbols such as crosses on the exterior and crucifixes, and religious paintings and statues either in the classrooms or hallways. Although only approximately thirty minutes a day are devoted to direct religious instruction, there are religiously oriented extracurricular activities. Approximately two-thirds of the teachers in these schools are nuns of various religious orders. Their dedicated efforts provide an atmosphere in which religious instruction and religious vocations are natural and proper parts of life in such schools. Indeed, as the District Court found, the role of teaching nuns in enhancing the religious atmosphere has led the parochial school authorities to attempt to maintain a one-to-one ratio between nuns and lay teachers in all schools rather than to permit some to be staffed almost entirely by lay teachers. On the basis of these findings the District Court concluded that the parochial schools constituted “an integral part of the religious mission of the Catholic Church.” The various characteristics of the schools make them “a powerful vehicle for transmitting the Catholic faith to the next generation.” This process of inculcating religious doctrine is, of course, enhanced by the impressionable age of the pupils, in primary schools
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particularly. In short, parochial schools involve substantial religious activity and purpose. The substantial religious character of these church-related schools gives rise to entangling church-state relationships of the kind the Religion Clauses sought to avoid. Although the District Court found that concern for religious values did not inevitably or necessarily intrude into the content of secular subjects, the considerable religious activities of these schools led the legislature to provide for careful governmental controls and surveillance by state authorities in order to ensure that state aid supports only secular education. . . . The Rhode Island Legislature has not, and could not, provide state aid on the basis of a mere assumption that secular teachers under religious discipline can avoid conflicts. The State must be certain, given the Religion Clauses that subsidized teachers do not inculcate religion— indeed the State here has undertaken to do so. To ensure that no trespass occurs, the State has therefore carefully conditioned its aid with pervasive restrictions. An eligible recipient must teach only those courses that are offered in the public schools and use only those texts and materials that are found in the public schools. In addition, the teacher must not engage in teaching any course in religion. A comprehensive, discriminating, and continuing state surveillance will inevitably be required to ensure that these restrictions are obeyed and the First Amendment otherwise respected. Unlike a book, a teacher cannot be inspected once so as to determine the extent and intent of his or her personal beliefs and subjective acceptance of the limitations imposed by the First Amendment. These prophylactic contacts will involve excessive and enduring entanglement between state and church. There is another area of entanglement in the Rhode Island program that gives concern. The statute excludes teachers employed by nonpublic schools whose average per-pupil expenditures on secular education equal or exceed the comparable figures for public schools. In the event that the total expenditures of an otherwise eligible school exceed this norm, the program requires the government to examine the school’s records in order to determine how much of the total expenditures is attributable to secular
education and how much to religious activity. This kind of state inspection and evaluation of the religious content of a religious organization is fraught with the sort of entanglement that the Constitution forbids. It is a relationship pregnant with dangers of excessive government direction of church schools and hence of churches. . . . Pennsylvania Program. The Pennsylvania statute also provides state aid to church-related schools for teachers’ salaries. The complaint describes an educational system that is very similar to the one existing in Rhode Island. According to the allegations, the church-related elementary and secondary schools are controlled by religious organizations, have the purpose of propagating and promoting a particular religious faith, and conduct their operations to fulfill that purpose. Since this complaint was dismissed for failure to state a claim for relief, we must accept these allegations as true for purposes of our review. As we noted earlier, the very restrictions and surveillance necessary to ensure that teachers play a strictly non-ideological role give rise to entanglements between church and state. The Pennsylvania statute, like that of Rhode Island, fosters this kind of relationship. Reimbursement is not only limited to courses offered in the public schools and materials approved by state officials, but the statute excludes “any subject matter expressing religious teaching, or the morals or forms of worship of any sect.” In addition, schools seeking reimbursement must maintain accounting procedures that require the State to establish the cost of the secular as distinguished from the religious instruction. The Pennsylvania statute, moreover, has the further defect of providing state financial aid directly to the church-related schools. This factor distinguishes both Everson and Allen, for in both those cases the Court was careful to point out that state aid was provided to the student and his parents—not to the church-related school. . . . In Walz v. Tax Commission, . . . the Court warned of the dangers of direct payments to religious organizations: Obviously a direct money subsidy would be a relationship pregnant with involvement and, as with most governmental grant programs, could encompass sustained and detailed administrative
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The Establishment Clause and the Lemon Test relationships for enforcement of statutory or administrative standards. . . .
The history of government grants of a continuing cash subsidy indicates that such programs have almost always been accompanied by varying measures of control and surveillance. The government cash grants before us now provide no basis for predicting that comprehensive measures of surveillance and controls will not follow. In particular the government’s post audit power to inspect and evaluate a church-related school’s financial records and to determine which expenditures are religious and which are secular creates an intimate and continuing relationship between church and state. A broader base of entanglement of yet a different character is presented by the divisive political potential of these state programs. In a community where such a large number of pupils are served by church-related schools, it can be assumed that state assistance will entail considerable political activity. Partisans of parochial schools, understandably concerned with rising costs and sincerely dedicated to both the religious and secular educational missions of their schools, will inevitably champion this cause and promote political action to achieve their goals. Those who oppose state aid, whether for constitutional, religious, or fiscal reasons, will inevitably respond and employ all of the usual political campaign techniques to prevail. Candidates will be forced to declare and voters to choose. It would be unrealistic to ignore the fact that many people confronted with issues of this kind will find their votes aligned with their faith. Ordinarily, political debate and division, however vigorous or even partisan, are normal and healthy manifestations of our democratic system of government, but political division along religious lines was one of the principal evils against which the First Amendment was intended to protect. . . . The potential divisiveness of such conflict is a threat to the normal political process. . . . The potential for political divisiveness related to religious belief and practice is aggravated in these two statutory programs by the need for continuing annual appropriations and the likelihood of larger and larger demands as costs and populations grow. . . .
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In Walz it was argued that a tax exemption for places of religious worship would prove to be the first step in an inevitable progression leading to the establishment of state churches and state religion. That claim could not stand up against more than 200 years of virtually universal practice embedded in our colonial experience and continuing into the present. The progression argument, however, is more persuasive here. We have no long history of state aid to church-related educational institutions comparable to 200 years of tax exemption for churches. Indeed, the state programs before us today represent something of an innovation. We have already noted that modern governmental programs have self-perpetuating and self-expanding propensities. These internal pressures are only enhanced when the schemes involve institutions whose legitimate needs are growing and whose interests have substantial political support. Nor can we fail to see that in constitutional adjudication some steps, which when taken were thought to approach “the verge,” have become the platform for yet further steps. A certain momentum develops in constitutional theory and it can be a “downhill thrust” easily set in motion but difficult to retard or stop. Development by momentum is not invariably bad; indeed, it is the way the common law has grown, but it is a force to be recognized and reckoned with. The dangers are increased by the difficulty of perceiving in advance exactly where the “verge” of the precipice lies. As well as constituting an independent evil against which the Religion Clauses were intended to protect, involvement or entanglement between government and religion serves as a warning signal. . . . The judgment of the Rhode Island District Court in No. 569 and No. 570 is affirmed. The judgment of the Pennsylvania District Court in No. 89 is reversed, and the case is remanded for further proceedings consistent with this opinion. . . .
THE WALL BEGINS TO CRUMBLE The issue of aid to nonpublic schools in the form of tax credits or tax deductions is not a new idea. In 1972, a lower federal district court invalidated Ohio’s Parental Reimbursement Grant, which provided a tax credit 68 to
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nonpublic school parents, a decision that was summarily affirmed by the U.S. Supreme Court in 1973. 69 The Supreme Court addressed the tax benefit in Committee for Public Education and Religious Liberty v. Nyquist in 1973 and found a New York statute for nonpublic school parents was unconstitutional. 70 Again, in 1979, the Supreme Court confronted the tax benefit issue, at which time it summarily affirmed the decision 71 of the Third Circuit Court of Appeals invalidating a tax benefit program for nonpublic school parents in New Jersey. The watershed case on the subject of tax credits, Mueller v. Allen72 resulted from a Minnesota statute that allowed all parent taxpayers to deduct from their income taxes a legislatively specified amount. In approving this scheme of aid to private schools, the U.S. Supreme Court appeared to chart a new direction of even greater leniency in the provision of public monies for parochial schools. In upholding the Minnesota plan, the Court distinguished its rejection of the earlier tax deduction or credit plans by noting that each of those limited tax benefits was available only to parents of private school children, whereas the Minnesota deduction was available to parents of all children in both private and public schools. The Court did not seem to be concerned that tax deduction benefits to public school parents would be minimal because public schools do not charge tuition or transportation fees and textbooks are, by and large, free. The primary benefits would then, of course, accrue largely to the advantage of parochial school parents. Justice Rehnquist, in applying the three-part test for the 5–4 majority, found that the statute had a secular purpose, that it did not advance or promote religion, and that governmental entanglement with the church was minimal and unimportant. Importantly, Rehnquist, in justifying the decision, expressed a view of the Court to the effect that parochial schools are a viable and important alternative to public schools, fostering “wholesome competition,” and that states are justified in giving them tax support. 73 This same view is a slightly different version of that expressed by Justice White in 1968 in Board of Education of Central School District v. Allen.74 In School District of the City of Grand Rapids v. Ball,75 in 1985,
the Supreme Court, under the hand of Justice Brennan, momentarily returned to a stricter adherence to separation. In this case, a Grand Rapids plan offered benefits to parochial schools through shared time and community education programs financed by the public school system. Justice Brennan, writing for the majority, found that the plan had the primary effect of advancing religion. Justice Brennan again prevailed in the 1985 Aguilar v. Felton decision,76 in which he formed a majority coalition of justices, enabling the Court to strike down a New York City plan that provided funds under Title I of the federal Elementary and Secondary Education Act of 1965 to pay for the education of eligible parochial school students on parochial school premises. The Supreme Court found that such a benefit to the parochial schools offended the Establishment Clause. Justice Brennan went to great length to explain why this particular plan, which involved the use of public school teachers in parochial schools as well as an elaborate monitoring system, violated the excessive entanglement test. The erosion of the wall as far as aid to parochial schools is concerned is premised on the philosophical rationale enunciated by Chief Justice Rehnquist in his dissent in Wallace v. Jaffree in 1985,77 where he maintained that the true intent of the Establishment Clause is merely to prohibit a “national religion” or the “official designation of any church as a national one,” as well as to discourage the preference of any particular religious sect over another. It did not intend, according to Rehnquist, to create “government neutrality between religion and irreligion, nor did it prohibit the federal government from providing non-discriminating aid to religion.”78 This neutrality or nonpreferential philosophy allows state and federal tax funds to go to religious schools so long as one or a few religious sects are not preferred over others. According to Levy, the fact that the Catholic Church may control 80 percent of America’s private schools would apparently make no difference in the application of this nonpreferential philosophy.79 This position is, of course, diametrically opposed to the intent enunciated in Madison’s Memorial and Remonstrance, which declared that government should not aid one religion or all religions.
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The Establishment Clause and the Lemon Test
Mueller v. Allen is the Supreme Court’s first obvious and definitive step away from the doctrine of separation.
Tax Deductions Benefiting Parents of Parochial School Children Do Not Violate the Establishment Clause
Mueller v. Allen Supreme Court of the United States, 1983. 463 U.S. 388, 103 S. Ct. 3062.
Justice REHNQUIST delivered the opinion of the Court. Minnesota allows taxpayers, in computing their state income tax, to deduct certain expenses incurred in providing for education of their children. . . . Minnesota, like every other state, provides its citizens with free elementary and secondary schooling. It seems to be agreed that about 820,000 students attended this school system in the most recent school year. During the same year, approximately 91,000 elementary and secondary students attended some 500 privately supported schools located in Minnesota, and about 95% of these students attended schools considering themselves to be sectarian. Minnesota, by a law originally enacted in 1955 and revised in 1976 and again in 1978, permits state taxpayers to claim a deduction from gross income for certain expenses incurred in educating their children. The deduction is limited to actual expenses incurred for the “tuition, textbooks and transportation” of dependents attending elementary or secondary schools. A deduction may not exceed $500 per dependent in grades K through six and $700 per dependent in grades seven through twelve. . . . Today’s case is no exception to our oft-repeated statement that the Establishment Clause presents especially difficult questions of interpretation and application. It is easy enough to quote the few words comprising that clause—“Congress shall make no law respecting an establishment
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of religion.” It is not at all easy, however, to apply this Court’s various decisions construing the Clause to governmental programs of financial assistance to sectarian schools and the parents of children attending those schools. Indeed, in many of these decisions “we have expressly or implicitly acknowledged that ‘we can only dimly perceive the lines of demarcation in this extraordinarily sensitive area of constitutional law.’” Lemon v. Kurtzman, 403 U.S. 602, 609, 612, 91 S. Ct. 2105, 2109, 2111 (1971) . . . One fixed principle in this field is our consistent rejection of the argument that “any program which in some manner aids an institution with a religious affiliation” violates the Establishment Clause. . . . The general nature of our inquiry in this area has been guided, since the decision in Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105(1971), by the “three-part” test laid down in that case: First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion . . . ; finally, the statute must not foster “an excessive government entanglement with religion.” Ibid., at 612–613, 91 S. Ct., at 2111.
While this principle is well settled, our cases have also emphasized that it provides “no more than [a] helpful signpost” in dealing with Establishment Clause challenges. With this caveat in mind, we turn to the specific challenges raised against § 290.09(22) under the Lemon framework. Little time need be spent on the question of whether the Minnesota tax deduction has a secular purpose. Under our prior decisions, governmental assistance programs have consistently survived this inquiry even when they have run afoul of other aspects of the Lemon framework. This reflects, at least in part, our reluctance to attribute unconstitutional motives to the states, particularly when a plausible secular purpose for the state’s program may be discerned from the face of the statute. A state’s decision to defray the cost of educational expenses incurred by parents—regardless of the type of schools their children attend— evidences a purpose that is both secular and understandable. . . .
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We turn therefore to the more difficult but related question whether the Minnesota statute has “the primary effect of advancing the sectarian aims of the nonpublic schools.” In concluding that it does not, we find several features of the Minnesota tax deduction particularly significant. First, an essential feature of Minnesota’s arrangement is the fact that § 290.09(22) is only one among many deductions—such as those for medical expenses, Minn. Stat. § 290.09(10), and charitable contributions, Minn. Stat. § 290.21—available under the Minnesota tax laws. . . . Under our prior decisions, the Minnesota legislature’s judgment that a deduction for educational expenses fairly equalizes the tax burden of its citizens and encourages desirable expenditures for educational purposes is entitled to substantial deference. Other characteristics of § 290.09(22) argue equally strongly for the provision’s constitutionality. Most importantly, the deduction is available for educational expenses incurred by all parents, including those whose children attend public schools and those whose children attend nonsectarian private schools or sectarian private schools. . . . We . . . agree with the Court of Appeals that, by channeling whatever assistance it may provide to parochial schools through individual parents, Minnesota has reduced the Establishment Clause objections to which its action is subject. It is true, of course, that financial assistance provided to parents ultimately has an economic effect comparable to that of aid given directly to the schools attended by their children. It is also true, however, that under Minnesota’s arrangement public funds become available only as a result of numerous, private choices of individual parents of school-age children. For these reasons, we recognized in Nyquist that the means by which state assistance flows to private schools is of some importance: we said that “the fact that aid is disbursed to parents rather than to . . . schools” is a material consideration in Establishment Clause analysis, albeit “only one among many to be considered.” . . . We find it useful, in the light of the foregoing characteristics of § 290.09(22), to compare the attenuated financial benefits flowing to parochial schools from the section to the evils against which the Establishment Clause was designed to protect. These dangers are well-described by our statement that “what is at stake as a matter of
policy [in Establishment Clause cases] is preventing that kind and degree of government involvement in religious life that, as history teaches us, is apt to lead to strife and frequently strain a political system to the breaking point.” It is important, however, to “keep these issues in perspective.” At this point in the 20th century we are quite far removed from the dangers that prompted the Framers to include the Establishment Clause in the Bill of Rights. The risk of significant religious or denominational control over our democratic processes—or even of deep political division along religious lines—is remote, and when viewed against the positive contributions of sectarian schools, such risk seems entirely tolerable in light of the continuing oversight of this Court. Wolman, 433 U.S., at 263, 97 S. Ct., at 2613.
The Establishment Clause of course extends beyond prohibition of a state church or payment of state funds to one or more churches. We do not think, however, that its prohibition extends to the type of tax deduction established by Minnesota. The historic purposes of the clause simply do not encompass the sort of attenuated financial benefit, ultimately controlled by the private choices of individual parents, that eventually flows to parochial schools from the neutrally available tax benefit at issue in this case. Petitioners argue that, notwithstanding the facial neutrality of § 290.09(22), in application the statute primarily benefits religious institutions. Petitioners rely, as they did below, on a statistical analysis of the type of persons claiming the tax deduction. They contend that most parents of public school children incur no tuition expenses, and that other expenses deductible under § 290.09(22) are negligible in value; moreover, they claim that 96% of the children in private schools in 1978–1979 attended religiously affiliated institutions. Because of all this, they reason, the bulk of deductions taken under § 290.09(22) will be claimed by parents of children in sectarian schools. Respondents reply that petitioners have failed to consider the impact of deductions for items such as transportation, summer school tuition, tuition paid by parents whose children attended schools outside the school districts in which they resided, rental or purchase costs for a variety of equipment, and tuition for certain types of instruction not ordinarily provided in public schools.
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We need not consider these contentions in detail. We would be loath to adopt a rule grounding the constitutionality of a facially neutral law on annual reports reciting the extent to which various classes of private citizens claimed benefits under the law. Such an approach would scarcely provide the certainty that this field stands in need of, nor can we perceive principled standards by which such statistical evidence might be evaluated. Moreover, the fact that private persons fail in a particular year to claim the tax relief to which they are entitled—under a facially neutral statute—should be of little importance in determining the constitutionality of the statute permitting such relief. . . . Thus, we hold that the Minnesota tax deduction for educational expenses satisfies the primary effect inquiry of our Establishment Clause cases. Turning to the third part of the Lemon inquiry, we have no difficulty in concluding that the Minnesota statute does not “excessively entangle” the state in religion. The only plausible source of the “comprehensive, discriminating and continuing state surveillance” necessary to run afoul of this standard would lie in the fact that state officials must determine whether particular textbooks qualify for a deduction. In making this decision, state officials must disallow deductions taken from “instructional books and materials used in the teaching of religious tenets, doctrines or worship, the purpose of which is to inculcate such tenets, doctrines or worship.” Making decisions such as this does not differ substantially from making the types of decisions approved in earlier opinions of this Court. In Board of Education v. Allen, for example, the Court upheld the loan of secular textbooks to parents or children attending nonpublic schools; though state officials were required to determine whether particular books were or were not secular, the system was held not to violate the Establishment Clause. See also Wolman v. Walter; Meek v. Pittenger. The same result follows in this case. For the foregoing reasons, the judgment of the Court of Appeals is Affirmed.
elementary or secondary school tuition or for textbooks did not violate the Establishment or Free Exercise Clauses of the First Amendment. Luthens v. Bair, 788 F. Supp. 1032, (S.D. Iowa 1992). 2. Tax Credits. The Supreme Court of Arizona followed the rationale of Mueller v. Allen and upheld a state statute that allowed for a state tax credit of up to $500 for donations to school tuition organizations (STO). An STO is a charitable organization that is tax exempt under § 501(c)(3) of the Internal Revenue Code of the United States. An STO is required to allocate at least 90 percent of its annual revenue for educational scholarships or tuition grants to children to attend any qualified school of the parents’ choice. Plaintiffs brought suit claiming the tax credit violated the Establishment Clause of the First Amendment and the Arizona Constitution. The Arizona court upheld the statute, and in so doing, followed the rationale of Mueller. The Arizona Constitution, Article II, § 12, stated that “No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or to the support of any religious establishment.” 3. A second section of the constitution, Article IX, § 10 says, “No tax shall be laid or appropriation of public money made in aid of any church, or private or sectarian school, or any public service corporation.” In spite of this strong and specific prohibition, the court said that the framers of the Arizona Constitution “did not show an undisputable desire to exceed the federal requirement of the Establishment Clause.” Thus, regardless of the language, the Arizona court reads the Arizona Constitution to be no more restrictive as to an establishment of religion. Accordingly, the Arizona Constitution has no “independent vitality” in such matters and thereby must follow the U.S. Supreme Court interpretation in Mueller. Kotterman v. Killian, 193 Ariz. 273, 972 P.2d 606 (1999).
CASE NOTES
THE MARGINALIZING OF LEMON
1. Relying on Mueller v. Allen, in 1992, a federal district court in Iowa held that Iowa’s income tax laws that allowed a taxpayer to claim an income tax deduction or credit for payment of
The Lemon test was used in all Supreme Court school religion cases in the 1980s and for all but two non-school cases: Marsh v. Chambers80 (here the so-called historical analysis was used) and
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Larson v. Valente.81 In a number of the decisions, the Supreme Court downgraded the importance of the Lemon test. The test was described as only a “guideline” in Committee for Public Education and Religious Liberty v. Nyquist82 and then as “no more than [a] useful ‘guideline’” in Mueller v. Allen.83 Later, in Lynch v. Donnelly,84 the Court stated that the Lemon test has never been binding on the Court. There was speculation that the Supreme Court would overturn Lemon or establish a new test when Lee v. Weisman85 was argued before the Court in 1992. But Justice Kennedy, writing for the majority, averted the issue, stating that “the court will not reconsider its decision in Lemon.”86 The Court thereby did not use the tripartite Lemon test in Weisman, but, rather, it applied a new standard—the coercion test. The Court stated: “The principle that government may accommodate the free exercise of religion does not supersede the fundamental limitation imposed by the Establishment Clause, which guarantees at a minimum that a government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which ‘establishes a [state] religion or religious faith, or tends to do so.’ ”87 The member of the Supreme Court most critical of Lemon has been Justice Scalia. Scalia, a strong proponent of parochial schools, in his dissent in Lamb’s Chapel,88 attacked the Lemon test, stating: As to the Court’s invocation of the Lemon Test: Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children. . . .89
Justice Scalia’s efforts to overturn the Lemon test and demolish the wall of separation have now largely come to fruition. The Court did not use the Lemon test in deciding Board of Education of Kiryas Joel Village School District v. Grumet;90 rather, it applied a “neutrality” standard, saying, “A proper respect for both the Free Exercise and the Establishment Clauses compels the State to pursue a course of ‘neutrality’ toward religion.”91 In this case, the state legislature created a separate special education school district for a religious educational enclave: The New York Village of Kiryas Joel is a religious enclave of Satmar Hasidim, practitioners of a strict
form of Judaism. Its local incorporation intentionally drew its boundaries under the state’s general village incorporation law to exclude all but Satmars.92
This state statute specifically carved out the special school district exclusively for the Satmar Hasidic sect. In declaring the Act unconstitutional, the Supreme Court stated: “Because this unusual act is tantamount to an allocation of political power on a religious criterion and neither presupposes nor requires governmental impartiality toward religion, we hold that it violates the prohibition against establishment.”93
THE NEW ESTABLISHMENT CLAUSE JURISPRUDENCE Earlier Supreme Court precedents confirming the Establishment Clause as a strong deterrent against state aid to parochial or clerical schools have now been largely repudiated by later rulings. With Justices Rehnquist, O’Connor, Kennedy, Scalia, and Thomas forming the majority, historic separation preventing the flow of public tax funds to parochial schools was nullified in the 1997 case of Agostini v. Felton.94 Justice O’Connor, writing for a 5–4 majority, announced the new and “significant change in Establishment Clause law.” In this decision, the Court repeatedly referred to its “current understanding of the Establishment Clause.” This “current understanding” is based on this Supreme Court’s precedents in Witters v. Washington Department of Services for the Blind,95 Zobrest v. Catalina Foothills School District, 96 Rosenberger v. Rector and Visitors of the University of Virginia,97 and Board of Education of Kiryas Joel Village School District v. Grumet.98 In these cases, the Court established a carefully calculated chain of precedents leading to what amounts to a negation of the effects of the Establishment Clause as it had before applied to public funding of parochial schools. The Court’s reasoning was synthesized and enunciated as new precedent in Agostini v. Felton, in which it overruled the earlier precedents of Aguilar v. Felton99 and School District of the City of Grand Rapids v. Ball.100 As pointed out earlier in this chapter, the original Aguilar case, with former Justice Brennan writing for the majority, had held that the use of federal Title I funds to pay for educational services in parochial schools was unconstitutional. The same Court in the Grand
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The Establishment Clause and the Lemon Test
Rapids case reinforced the Establishment Clause principle of separation of church and state by invalidating a state plan to provide public funds for shared time and community education programs in parochial schools. Subsequently, however, after Justices Brennan and Marshall retired, the philosophy of the Court shifted dramatically. The new appointees to the Court formed a majority that, in Agostini, annulled the strong separation decisions of Aguilar and Grand Rapids. The Supreme Court, although not directly overruling Lemon and its three-prong test, did nevertheless reinterpret Lemon in such a way as to greatly reduce its strength in preventing public aid to parochial schools. In addressing the Lemon standards, the Court observed that its new ruling in Agostini had not materially changed the first prong of Lemon, the purpose test. The fact that the Court let this part stand without reinterpretation did not, however, change current jurisprudence. For some time now, the Court’s precedents have indicated that the purpose test did not prevent government from providing tax funds to parochial schools.101 The real and pervasive shift in the new Establishment Clause judicial philosophy emanated from this Court’s virtual obliteration of the second prong, the effect test, and the third prong, the excessive entanglement test. The majority in Agostini pointed out that the Court’s ruling in Zobrest was controlling in the application of the effect test; in Zobrest, the Court held that the use of public funds to pay for a special education employee in a Roman Catholic high school did not have the impermissible effect of advancing religion. The Court’s ruling in Agostini cited its own decision in Witters as precedent and pointed out that its new Establishment Clause jurisprudence did not prevent direct grants to students in religious schools even though the money would be used to obtain a religious education. Zobrest and Witters directly repudiate the previously held assumptions in Aguilar and Grand Rapids that a publicly funded employee in a religious school creates the unacceptable effect of advancing religion. Thus, Zobrest, Witters, and Agostini, in concert, apparently largely nullify the effect test as a deterrent to government funding for parochial schools. The Court in Agostini most clearly indicated its overruling of the separation precedents of
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earlier Supreme Court decisions when it examined the federal Title I program in light of the third prong of Lemon, excessive entanglement. The Court explained that monitoring by public officials of parochial school programs, administrative interaction between public school boards and the parochial schools, and possible “political divisiveness” created by aid to parochial schools cannot be construed to be excessive entanglement. Thus, in view of this Court’s treatment of the excessive entanglement standard, it is difficult to conjure a scenario where excessive entanglement could be adjudged so intrusive as to be violative of this third Lemon test. A careful reading of Agostini makes it clear that the entanglement test is to be considered of little importance in future Supreme Court decisions. In June 2000, the U.S. Supreme Court handed down Mitchell v. Helms,102 a fractionated decision that appeared to nullify the remaining Establishment Clause deterrence to public funding of sectarian schools. The opinion, rendered by a plurality, meaning four justices, with Thomas writing, consolidated and reinforced the Court’s position encapsulated in Agostini,103 flatly breaking from previous Supreme Court decisions that had prohibited providing sectarian schools with public funds. The Supreme Court observed in Agostini that “stare decisis is not an inexorable command”; therefore, earlier precedents did not bind this Court to the earlier Supreme Court rulings that held that the Establishment Clause prohibited public funding of ecclesiastical schools. Agostini and Helms gave birth to a so-called new Establishment Clause jurisprudence because of its departure from the historical American separation of church and state philosophy. Justice Clarence Thomas explained that the new Establishment Clause jurisprudence hinges primarily on an “effect” test that considers the neutrality of the governmental funding and whether the aid subsidizes a particular religious group. According to Justice Thomas, if the government funds have no strings attached and do not require that the sectarian schools teach a particular brand of religion, then use of public funds by the church schools is permissible. If in the use of the public funds, the sectarian school chooses to inculcate its own religious doctrine, and such cannot be attributed directly to governmental action, then there is no violation of the Establishment Clause.
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Therefore, according to the Court, public funds can be used for religious indoctrination so long as it is the choice made by the particular religious sect that conducts the school and does not constitute a religious doctrine prescribed by the government as a condition for receiving the funds. This reasoning the Court calls the neutrality principle. In short, what the Court is apparently saying is that if the public funds are not used to impose a “state religion” upon the sectarian schools or are not given to only one particular type of religious school, then the governmental funding comports with the Establishment Clause. Even though the Court in Helms was not required by the appeal to address the “purpose test” or the “excessive entanglement test” of Lemon, the implication is clear that neither test will in the future be effective deterrents to the channeling of public dollars to religious schools. The new criteria of Justice Thomas’s effect test appear to subsume the original “purpose” test of Lemon, indicating that there is no constitutional violation if the state aid is allocated on a neutral and secular basis, neither favoring nor disfavoring any particular religious sect. Further, regardless of the fact that the excessive entanglement test was not directly addressed in Helms, the Court indicated that it would probably give this test rather short shrift in the future due to its “pared down” judicial concern for potential divisiveness that might accrue from financial aid to religion. Too, the Court suggested foreclosure of entanglement considerations in an elongated dismissal of the issue of diversion of funds. The plaintiffs in Helms had complained that governmental funds provided to sectarian schools could be easily diverted for religious indoctrination, regardless of their original secular purpose. Lemon had held that the act of monitoring the use of public funds by government to prevent their diversion within the sectarian school to religious purposes created excessive entanglements. The Court in Helms responded that all this is obviated if the diversion comes about as a result of the choices made by the clergy controlling the schools or the parents of children attending the religious schools. Church and family choices justify such diverting of funds. Moreover, the Court indicated it would simply disregard any concern of political divisiveness as an entanglement issue.
Therefore, the Helms case constitutes a definitive step in the Supreme Court’s disassembling of the judicial precedents that had earlier in American history forbidden tax support for the benefit of sectarian schools. The new jurisprudence of the Establishment Clause, appropriated by the current Supreme Court, has now dismantled the principal constitutional barriers that prevented general taxation for the support of religious institutions.
Payment of Title I Teachers in Parochial Schools Does Not Violate the Establishment Clause
Agostini v. Felton Supreme Court of the United States, 1997. 521 U.S. 203, 117 S. Ct. 1997.
Justice O’CONNOR delivered the opinion of the Court. In Aguilar v. Felton, 473 U.S. 402, 105 S. Ct. 3232 (1985), this Court held that the Establishment Clause of the First Amendment barred the city of New York from sending public school teachers into parochial schools to provide remedial education to disadvantaged children pursuant to a congressionally mandated program. On remand, the District Court for the Eastern District of New York entered a permanent injunction reflecting our ruling. Twelve years later, petitioners—the parties bound by that injunction—seek relief from its operation. Petitioners maintain that Aguilar cannot be squared with our intervening Establishment Clause jurisprudence and ask that we explicitly recognize what our more recent cases already dictate: Aguilar is no longer good law. . . . In 1965, Congress enacted Title I of the Elementary and Secondary Education Act of 1965, 79 Stat. 27, as modified, 20 U.S.C. § 6301 et seq., to “provid[e] full educational opportunity to every child regardless of economic background.” . . . Toward that end, Title I channels federal funds, through the States, to “local educational agencies.” . . . The LEA’s spend these funds to provide remedial education, guidance,
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The Establishment Clause and the Lemon Test
and job counseling to eligible students. . . . Title I funds must be made available to all eligible children, regardless of whether they attend public schools. . . . An LEA providing services to children enrolled in private schools is subject to a number of constraints that are not imposed when it provides aid to public schools. Title I services may be provided only to those private school students eligible for aid, and cannot be used to provide services on a “school-wide” basis. . . . In addition, the LEA must retain complete control over Title I funds; retain title to all materials used to provide Title I services; and provide those services through public employees or other persons independent of the private school and any religious institution. . . . The Title I services themselves must be “secular, neutral, and non-ideological,” . . . and must “supplement, and in no case supplant, the level of services” already provided by the private school. . . . In 1978, in Aguilar, six federal taxpayers— respondents here—sued the Board in the District Court for the Eastern District of New York. . . . In a 5–4 decision, this Court affirmed on the ground that the Board’s Title I program necessitated an “excessive entanglement of church and state in the administration of [Title I] benefits.” 473 U.S. at 414, 105 S. Ct. at 3239. . . . The Board, like other LEA’s across the United States, modified its Title I program so it could continue serving those students who attended private religious schools. Rather than offer Title I instruction to parochial school students at their schools, the Board reverted to its prior practice of providing instruction at public school sites, at leased sites, and in mobile instructional units (essentially vans converted into classrooms) parked near the sectarian school. The Board also offered computer-aided instruction, which could be provided “on premises” because it did not require public employees to be physically present on the premises of a religious school. It is not disputed that the additional costs of complying with Aguilar’s mandate are significant. . . . In order to evaluate whether Aguilar has been eroded by our subsequent Establishment Clause cases, it is necessary to understand the rationale upon which Aguilar, as well as its companion case, School Dist. of Grand Rapids v. Ball, rested.
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In Ball, the Court evaluated two programs implemented by the School District of Grand Rapids, Michigan. The district’s Shared Time program, the one most analogous to Title I, provided remedial and “enrichment” classes, at public expense, to students attending nonpublic schools. The classes were taught during regular school hours by publicly employed teachers, using materials purchased with public funds, on the premises of nonpublic schools. . . . Accordingly, a majority found a “substantial risk” that teachers—even those who were not employed by the private schools—might “subtly (or overtly) conform their instruction to the [pervasively sectarian] environment in which they [taught].” Distilled to essentials, the Court’s conclusion that the Shared Time program in Ball had the impermissible effect of advancing religion rested on three assumptions: (i) any public employee who works on the premises of a religious school is presumed to inculcate religion in her work; (ii) the presence of public employees on private school premises creates a symbolic union between church and state; and (iii) any and all public aid that directly aids the educational function of religious schools impermissibly finances religious indoctrination, even if the aid reaches such schools as a consequence of private decisionmaking. Additionally, in Aguilar there was a fourth assumption: that New York City’s Title I program necessitated an excessive government entanglement with religion because public employees who teach on the premises of religious schools must be closely monitored to ensure that they do not inculcate religion. Our more recent cases have undermined the assumptions upon which Ball and Aguilar relied. To be sure, the general principles we use to evaluate whether government aid violates the Establishment Clause have not changed since Aguilar was decided. For example, we continue to ask whether the government acted with the purpose of advancing or inhibiting religion, and the nature of that inquiry has remained largely unchanged. . . . As we have repeatedly recognized, government inculcation of religious beliefs has the impermissible effect of advancing religion. Our cases subsequent to Aguilar have, however, modified in two significant respects the approach we use to assess indoctrination. First, we have
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abandoned the presumption erected in Meek and Ball that the placement of public employees on parochial school grounds inevitably results in the impermissible effect of state-sponsored indoctrination or constitutes a symbolic union between government and religion. . . . Second, we have departed from the rule relied on in Ball that all government aid that directly aids the educational function of religious schools is invalid. In Witters v. Washington Dept. of Servs. for the Blind, we held that the Establishment Clause did not bar a State from issuing a vocational tuition grant to a blind person who wished to use the grant to attend a Christian college and become a pastor, missionary, or youth director. Even though the grant recipient clearly would use the money to obtain religious education, we observed that the tuition grants were “made available generally without regard to the sectarian-nonsectarian, or public/nonpublic nature of the institution benefited.” . . . The grants were disbursed directly to students, who then used the money to pay for tuition at the educational institution of their choice. . . . Zobrest and Witters make clear that, under current law, the Shared Time program in Ball and New York City’s Title I program in Aguilar will not, as a matter of law, be deemed to have the effect of advancing religion through indoctrination. Indeed, each of the premises upon which we relied in Ball to reach a contrary conclusion is no longer valid. . . . . . . [I]t is clear that Title I services are allocated on the basis of criteria that neither favor nor disfavor religion. The services are available to all children who meet the Act’s eligibility requirements, no matter what their religious beliefs or where they go to school, 20 U.S.C. § 6312(c)(1)(F). The Board’s program does not, therefore, give aid recipients any incentive to modify their religious beliefs or practices in order to obtain those services. We turn now to Aguilar’s conclusion that New York City’s Title I program resulted in an excessive entanglement between church and state. Whether a government aid program results in such an entanglement has consistently been an aspect of our Establishment Clause analysis. We have considered entanglement both in the course of assessing whether an aid program has an impermissible effect of advancing religion, . . . and as a factor separate and apart from “effect,” Lemon v. Kurtzman, 403 U.S. at 612–613, 91 S. Ct. at 2111. . . .
Not all entanglements, of course, have the effect of advancing or inhibiting religion. Interaction between church and state is inevitable, and we have always tolerated some level of involvement between the two. Entanglement must be “excessive” before it runs afoul of the Establishment Clause. . . . The pre-Aguilar Title I program does not result in an “excessive” entanglement that advances or inhibits religion. As discussed previously, the Court’s finding of “excessive” entanglement in Aguilar rested on three grounds: (i) the program would require “pervasive monitoring by public authorities” to ensure that Title I employees did not inculcate religion; (ii) the program required “administrative cooperation” between the Board and parochial schools; and (iii) the program might increase the dangers of “political divisiveness.” . . . Under our current understanding of the Establishment Clause, the last two considerations are insufficient by themselves to create an “excessive” entanglement. They are present no matter where Title I services are offered, and no court has held that Title I services cannot be offered offcampus. . . . Further, the assumption underlying the first consideration has been undermined. In Aguilar, the Court presumed that full-time public employees on parochial school grounds would be tempted to inculcate religion, despite the ethical standards they were required to uphold. Because of this risk pervasive monitoring would be required. But after Zobrest we no longer presume that public employees will inculcate religion simply because they happen to be in a sectarian environment. Since we have abandoned the assumption that properly instructed public employees will fail to discharge their duties faithfully, we must also discard the assumption that pervasive monitoring of Title I teachers is required. . . . To summarize, New York City’s Title I program does not run afoul of any of three primary criteria we currently use to evaluate whether government aid has the effect of advancing religion: it does not result in governmental indoctrination; define its recipients by reference to religion; or create an excessive entanglement. We therefore hold that a federally funded program providing supplemental, remedial instruction to disadvantaged children on a neutral basis is not invalid under the Establishment Clause when such instruction is given on the premises of sectarian schools by government employees pursuant to a program
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The Establishment Clause and the Lemon Test
containing safeguards such as those present here. The same considerations that justify this holding require us to conclude that this carefully constrained program also cannot reasonably be viewed as an endorsement of religion. . . . Accordingly, we must acknowledge that Aguilar, as well as the portion of Ball addressing Grand Rapids’ Shared Time program, are no longer good law. The doctrine of stare decisis does not preclude us from recognizing the change in our law and overruling Aguilar and those portions of Ball inconsistent with our more recent decisions. As we have often noted, “[s]tare decisis is not an inexorable command,” but instead reflects a policy judgment that “in most matters it is more important that the applicable rule of law be settled than that it be settled right.” . . . As discussed above, our Establishment Clause jurisprudence has changed significantly since we decided Ball and Aguilar, so our decision to overturn those cases rests on far more than “a present doctrinal disposition to come out differently from the Court of [1985].” . . . We therefore overrule Ball and Aguilar to the extent those decisions are inconsistent with our current understanding of the Establishment Clause. . . . We therefore conclude that our Establishment Clause law has “significant[ly] change[d]” since we decided Aguilar. . . . For these reasons, we reverse the judgment of the Court of Appeals and remand to the District Court with instructions to vacate its September 26, 1985, order. It is so ordered.
Federal Funds to Sectarian Schools for Acquisition of Instructional and Educational Materials Does Not Violate the Establishment Clause
Mitchell v. Helms Supreme Court of the United States, 2000. 530 U.S. 793, 120 S. Ct. 2530.
Justice Thomas announced the judgment of the Court and delivered an opinion, in which the Chief Justice, Justice Scalia, and Justice Kennedy join.
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As part of a longstanding school aid program known as Chapter 2, the Federal Government distributes funds to state and local governmental agencies, which in turn lend educational materials and equipment to public and private schools, with the enrollment of each participating school determining the amount of aid that it receives. The question is whether Chapter 2, as applied in Jefferson Parish, Louisiana, is a law respecting an establishment of religion, because many of the private schools receiving Chapter 2 aid in that parish are religiously affiliated. We hold that Chapter 2 is not such a law. . . . Chapter 2 of the Education Consolidation and Improvement Act of 1981, Pub. L. 97–35, 95 Stat. 469, as amended, 20 U.S.C. §§ 7301–7373, has its origins in the Elementary and Secondary Education Act of 1965 (ESEA), and is a close cousin of the provision of the ESEA that we recently considered in Agostini v. Felton, 521 U.S. 203 (1997). Like the provision at issue in Agostini, Chapter 2 channels federal funds to local educational agencies (LEA’s), which are usually public school districts, via state educational agencies (SEA’s), to implement programs to assist children in elementary and secondary schools. Among other things, Chapter 2 provides aid “for the acquisition and use of instructional and educational materials, including library services and materials (including media materials), assessments, reference materials, computer software and hardware for instructional use, and other curricular materials.” . . . LEA’s and SEA’s must offer assistance to both public and private schools (although any private school must be nonprofit). Participating private schools receive Chapter 2 aid based on the number of children enrolled in each school, and allocations of Chapter 2 funds for those schools must generally be “equal (consistent with the number of children to be served) to expenditures for programs . . . for children enrolled in the public schools of the [LEA].” LEA’s just in all cases “assure equitable participation” of the children of private schools “in the purposes and benefits” of Chapter 2. Further, Chapter 2 funds may only “supplement and, to the extent practical, increase the level of funds that would . . . be made available from non-Federal sources.” LEA’s and SEA’s may not operate their programs “so as to supplant funds from nonFederal sources.” . . .
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The Establishment Clause of the First Amendment dictates that “Congress shall make no law respecting an establishment of religion.” In the over 50 years since Everson, we have consistently struggled to apply these simple words in the context of governmental aid to religious schools. . . . In Agostini, however, we brought some clarity to our case law, by overruling two anomalous precedents (Meek and Wolman, one in whole, the other in part) and by consolidating some of our previously disparate considerations under a revised test. Whereas in Lemon we had considered whether a statute (1) has a secular purpose, (2) has a primary effect of advancing or inhibiting religion, or (3) creates an excessive entanglement between government and religion, . . . in Agostini we modified Lemon for purposes of evaluating aid to schools and examined only the first and second factors. . . . We acknowledged that our cases discussing excessive entanglement had applied many of the same considerations as had our cases discussing primary effect, and we therefore recast Lemon’s entanglement inquiry as simply one criterion relevant to determining a statute’s effect. . . . We also acknowledged that our cases had pared somewhat the factors that could justify a finding of excessive entanglement. . . . We then set out revised criteria for determining the effect of a statute: To summarize, New York City’s Title I program does not run afoul of any of three primary criteria we currently use to evaluate whether government aid has the effect of advancing religion: It does not result in governmental indoctrination; define its recipients by reference to religion; or create an excessive entanglement. . . .
In this case, our inquiry under Agostini’s purpose and effect test is a narrow one. Because respondents do not challenge the District Court’s holding that Chapter 2 has a secular purpose, and because the Fifth Circuit also did not question that holding, . . . we will consider only the first two Agostini criteria, since neither respondents nor the Fifth Circuit has questioned the District Court’s holding, . . . that Chapter 2 does not create an excessive entanglement. Considering Chapter 2 in light of our more recent case law, we conclude that it neither results in religious indoctrination by the government nor defines its recipients by reference to religion. We therefore
hold that Chapter 2 is not a “law respecting an establishment of religion.” In so holding, we acknowledge . . . Meek and Wolman are anomalies in our case law. We therefore conclude that they are no longer good law. . . . As we indicated in Agostini, and have indicated elsewhere, the question whether governmental aid to religious schools results in governmental indoctrination is ultimately a question whether any religious indoctrination that occurs in those schools could reasonably be attributed to governmental action. . . . We have also indicated that the answer to the question of indoctrination will resolve the question whether a program of educational aid “subsidizes” religion, as our religion cases use that term. . . . In distinguishing between indoctrination that is attributable to the State and indoctrination that is not, we have consistently turned to the principle of neutrality, upholding aid that is offered to a broad range of groups or persons without regard to their religion. If the religious, irreligious, and areligious are all alike eligible for governmental aid, no one would conclude that any indoctrination that any particular recipient conducts has been done at the behest of the government. For attribution of indoctrination is a relative question. If the government is offering assistance to recipients who provide, so to speak, a broad range of indoctrination, the government itself is not thought responsible for any particular indoctrination. To put the point differently, if the government, seeking to further some legitimate secular purpose, offers aid on the same terms, without regard to religion, to all who adequately further that purpose, . . . then it is fair to say that any aid going to a religious recipient only has the effect of furthering that secular purpose. The government, in crafting such an aid program, has had to conclude that a given level of aid is necessary to further that purpose among secular recipients and has provided no more than the same level to religious recipients. As a way of assuring neutrality, we have repeatedly considered whether any governmental aid that goes to a religious institution does so “only as a result of the genuinely independent and private choices of individuals.” . . . We have viewed as significant whether the “private choices of individual parents,” as opposed to the “unmediated” will of government, . . .
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The Establishment Clause and the Lemon Test
determine what schools ultimately benefit from the governmental aid, and how much. For if numerous private choices, rather than the single choice of a government, determine the distribution of aid pursuant to neutral eligibility criteria, then a government cannot, or at least cannot easily, grant special favors that might lead to a religious establishment. Private choice also helps guarantee neutrality by mitigating the preference for pre-existing recipients that is arguably inherent in any governmental aid program . . . and that could lead to a program inadvertently favoring one religion or favoring religious private schools in general over nonreligious ones. The principles of neutrality and private choice, and their relationship to each other, were prominent not only in Agostini, . . . but also in Zobrest, Witters, and Mueller. . . . [P]rivate choices helped to ensure neutrality, and neutrality and private choices together eliminated any possible attribution to the government even when the interpreter translated classes on Catholic doctrine. . . . The tax deduction for educational expenses that we upheld in Mueller was, in these respects, the same as the tuition grant in Witters. We upheld it chiefly because it “neutrally provides state assistance to a broad spectrum of citizens,” . . . and because “numerous, private choices of individual parents of school-age children,” determined which schools would benefit from the deductions. We explained that “[w]here, as here, aid to parochial schools is available only as a result of decisions of individual parents no ‘imprimatur of state approval’ can be deemed to have been conferred on any particular religion, or on religion generally.” . . . If aid to schools, even “direct aid,” is neutrally available and, before reaching or benefiting any religious school, first passes through the hands (literally or figuratively) of numerous private citizens who are free to direct the aid elsewhere, the government has not provided any “support of religion,” . . . Although the presence of private choice is easier to see when aid literally passes through the hands of individuals—which is why we have mentioned directness in the same breath with private choice, . . . there is no reason why the Establishment Clause requires such a form. . . . Respondents also contend that the Establishment Clause requires that aid to religious schools
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not be impermissibly religious in nature or be divertible to religious use. We agree with the first part of this argument but not the second. Respondent’s “no divertibility” rule is inconsistent with our more recent case law and is unworkable. So long as the governmental aid is not itself “unsuitable for use in the public schools because of religious content,” . . . and eligibility for aid is determined in a constitutionally permissible manner, any use of that aid to indoctrinate cannot be attributed to the government and is thus not of constitutional concern. And, of course, the use to which the aid is put does not affect the criteria governing the aid’s allocation and thus does not create any impermissible incentive under Agostini’s second criterion. . . . A concern for divertibility, as opposed to improper content, is misplaced not only because it fails to explain why the sort of aid that we have allowed is permissible, but also because it is boundless—enveloping all aid, no matter how trivial—and thus has only the most attenuated (if any) link to any realistic concern for preventing an “establishment of religion.” Presumably, for example, government-provided lecterns, chalk, crayons, pens, paper, and paintbrushes would have to be excluded from religious schools under respondents’ proposed rule. But we fail to see how indoctrination by means of (i.e., diversion of) such aid could be attributed to the government. In fact, the risk of improper attribution is less when the aid lacks content, for there is no risk (as there is with books), of the government inadvertently providing improper content. . . . Finally, any aid, with or without content, is “divertible” in the sense that it allows schools to “divert” resources. Yet we have “not accepted the recurrent argument that all aid is forbidden because aid to one aspect of an institution frees it to spend its other resources on religious ends.” . . . One of the dissent’s factors deserves special mention: whether a school that receives aid (or whose students receive aid) is pervasively sectarian. The dissent is correct that there was a period when this factor mattered, particularly if the pervasively sectarian school was a primary or secondary school. . . . But that period is one that the Court should regret, and it is thankfully long past. . . . [T]he inquiry into the recipient’s religious views required by a focus on whether a school
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is pervasively sectarian is not only unnecessary but also offensive. It is well established, in numerous other contexts, that courts should refrain from trolling through a person’s or institution’s religious beliefs. . . . Yet that is just what this factor requires, as was evident before the District Court, . . . In addition, and related, the application of the “pervasively sectarian” factor collides with our decisions that have prohibited governments from discriminating in the distribution of public benefits based upon religious status or sincerity. Finally, hostility to aid to pervasively sectarian schools has a shameful pedigree that we do not hesitate to disavow. . . . Although the dissent professes concern for “the implied exclusion of the less favored.” . . . [T]he exclusion of pervasively sectarian schools from governmentaid programs is just that, particularly given the history of such exclusion. Opposition to aid to “sectarian” schools acquired prominence in the 1870’s with Congress’s consideration (and near passage) of the Blaine Amendment, which would have amended the Constitution to bar any aid to sectarian institutions. Consideration of the amendment arose at a time of pervasive hostility to the Catholic Church and to Catholics in general, and it was an open secret that “sectarian” was code for “Catholic.” . . . In short, nothing in the Establishment Clause requires the exclusion of pervasively sectarian schools from otherwise permissible aid programs, and other doctrines of this Court bar it. This doctrine, born of bigotry, should be buried now. . . . . We therefore have no difficulty concluding that Chapter 2 is neutral with regard to religion. . . . Chapter 2 aid also, like the aid in Agostini, Zobrest, and Witters, reaches participating schools only “as a consequence of private decisionmaking.” . . . It is the students and their parents—not the government—who, through their choice of school, determine who receives Chapter 2 funds. The aid follows the child. Because Chapter 2 aid is provided pursuant to private choices, it is not problematic that one could fairly describe Chapter 2 as providing “direct” aid. The materials and equipment provided under Chapter 2 are presumably used from time to time by entire classes rather than by individual students (although individual students are likely the chief consumers of library books
and, perhaps, of computers and computer software), and students themselves do not need to apply for Chapter 2 aid in order for their schools to receive it, but, as we explained in Agostini, these traits are not constitutionally significant or meaningful. . . . Nor, for reasons we have already explained, is it of constitutional significance that the schools themselves, rather than the students, are the bailees of the Chapter 2 aid. The ultimate beneficiaries of Chapter 2 aid are the students who attend the schools that receive that aid, and this is so regardless of whether individual students lug computers to school each day or, as Jefferson Parish has more sensibly provided, the schools receive the computers. . . . Finally, Chapter 2 satisfies the first Agostini criterion because it does not provide to religious schools aid that has an impermissible content. The statute explicitly bars anything of the sort, providing that all Chapter 2 aid for the benefit of children in private schools shall be “secular, neutral, and nonideological,” . . . and the record indicates that the Louisiana SEA and the Jefferson Parish LEA have faithfully enforced this requirement insofar as relevant to this case. The chief aid at issue is computers, computer software, and library books. The computers presumably have no pre-existing content, or at least none that would be impermissible for use in public schools. . . . In short, Chapter 2 satisfies both the first and second primary criteria of Agostini. It therefore does not have the effect of advancing religion. For the same reason, Chapter 2 also “cannot reasonably be viewed as an endorsement of religion.” . . . Accordingly, we hold that Chapter 2 is not a law respecting an establishment of religion. Jefferson Parish need not exclude religious schools from its Chapter 2 program. To the extent that Meek and Wolman conflict with this holding, we overrule them. The judgment of the Fifth Circuit is reversed. It is so ordered.
CASE NOTE In 2010, during the period of speculation regarding President Obama’s deliberations in choosing a replacement for Justice John Paul Stevens on the Supreme Court, considerable attention was given to the religious beliefs of the sitting members of the Supreme Court. Earlier,
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Religion and the Reconstruction Era: Grant and Blaine
Geoffrey R. Stone, Edward H. Levi Distinguished Service Professor of Law and former Dean of the Law School, University of Chicago, had raised the issue of religion and politics in the Chicago Tribune where he observed that the five justices who voted to uphold the federal ban on the so-called partial birth abortions in Gonzales v. Carhart, 548 U.S. 938, 127 S. Ct. 30 (2006), were Roman Catholics; Chief Justice Roberts and Associate Justices Alito, Kennedy, Thomas, and Scalia. Professor Stone had specifically written in the Tribune in 2007 that: “Here is a painfully awkward observation. All five justices in Gonzales are Catholic. The four justices who are either Protestant or Jewish all voted in accord with the settled precedent.” Stone continued, “Given the nature of the issue, the strength of the relevant precedent, and the inadequacy of the court’s reasoning, the question of religion is too obvious to ignore.” The New York Times reported that following the Tribune article, Professor Stone “was surprised by the vehement criticism that followed. Catholics in particular.” The Times noted that “One Catholic, Justice Antonin Scalia, was especially furious about the questions raised by Professor Stone’s article.” Scalia said that Stone’s article was “a damn lie” and added that “it got me so mad that I will not appear at the University of Chicago until he (Stone) is no longer on the faculty.” The New York Times, “Week in Review,” Sunday, April 11, 2010, Opinion pp. 1, 4. Thus, whether religious beliefs of the Supreme Court justices bear on their views regarding the First Amendment and the meaning of the idea of “separation of church and state” will undoubtedly be a matter of ongoing disagreement.
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Religion and the Reconstruction Era: Grant and Blaine
One of Justice Clarence Thomas’ sweeping generalizations in Mitchell v. Helms104 asserted that not only can states constitutionally provide public funding to pervasively sectarian schools, but that not to do so manifests a hostility toward religion, and in particular the Roman Catholic religion. To Thomas, strong separation language in state constitutions written after 1870 were simply subtle devices to deprive Catholic schools of
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public funding, and are, therefore, violative of the federal Constitution. At the heart of Thomas’ reasoning is his belief that state constitutional provisions that prohibit government aid to religion were enacted as Protestant manifestations of anti-Catholic bigotry of the Reconstruction Era. Thomas’ “bigotry thesis” is grounded in his assumption that the strict separation provisions in post-reconstruction state constitutions had emanated from the U.S. Congress in the 1870s, led by Speaker of the House James G. Blaine and by President Grant, both of whom Justice Thomas believes to have had strong and prejudiced anti-Catholic biases. Later in Locke v. Davey,105 2004, a State of Washington case, Justice Rehnquist, although lending credence to Thomas’ “bigotry thesis,” concluded that the facts in Davey were not sufficient to document bigoted intent in that particular case. Rehnquist concluded saying that: “neither Davey nor amici have established a credible connection between the Blaine Amendment and Articles I and II of the Washington Constitution. Accordingly, the Blaine Amendment’s history is simply not before us.”106 Most states have church-state provisions that are explicitly stronger than the Establishment Clause of the First Amendment in prohibiting the use of public funds for churches, church schools, or other religious enterprises. 107 The effect of Justice Thomas’ “bigotry thesis” is that any state prohibition against public funding of religious schools is suspect as constituting “hostility” to religion,108 generally, and to the Catholic religion specifically. The so-called Blaine Amendment that Justice Thomas cites in Helms, was proposed by James G. Blaine, representative from Maine and speaker of the House, on December 14, 1875, and was passed by an overwhelming majority of the House (180 votes in favor and 7 votes opposed) on August 4, 1876. It, however, failed to gain the two-thirds required vote in the U.S. Senate (28 votes in favor and 16 votes opposed). The failure of the Amendment in the Senate was directly attributable to the negative votes of the newly reinstated segregationist Democrats from the Confederate states.109 Justices Rehnquist, Thomas, and Scalia asserted in Helms and Davey that further historical scrutiny is desirable to specifically document the
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bigotry of that era and its connection as the motivating factor in the adoption of state constitutions that prohibit public funding of Catholic schools. If any such evidence is found, then it must be presumed that the present Supreme Court will entertain the opportunity to overthrow separation provisions in state constitutions. Who was Blaine? Blaine was an Abraham Lincoln110 liberal Republican from the State of Maine. Blaine’s allegiance to Lincoln rested on the shared belief in a nation founded on a postCivil War “new birth of freedom,” and, as a congressman in the 38th Congress, Blaine advanced the vision of “national survival and glory.” 111 Essential to Lincoln and Blaine’s philosophy of nationhood was “oneness,” “unity,” and “one country, one Constitution, one destiny.”112 With the idea of national oneness, Blaine called for all measures that would “bind us more indissolubly together,” in order that “we cannot fly apart.”113 After Lincoln’s death, Blaine opposed proSouthern segregationist policies and, in particular, he strongly questioned the reconstruction policies of President Andrew Johnson and Johnson’s stifling of the Civil Rights Act of 1866; and other civil rights measures caused Blaine to vote for Johnson’s impeachment in February of 1868.114 The last straw had been Johnson’s opposition to the Fourteenth Amendment.115 The language and passage of the Fourteenth Amendment in 1868116 owed much to Blaine’s leadership in Congress and his constancy in support of the southern blacks who had been disenfranchised by southern white Democrats shortly after the War.117 Robert Kagan, in his 2006 bestseller Dangerous Nation,118 speaks of Blaine’s advocacy of national progress and his instrumental role in mending a nation that had been broken by the Civil War and later rent by Jim Crow laws. Kagan observes that Blaine was “by far the most popular and dominant political figure from the 1870s to the early 1890s” in America, and by virtue of leadership he not only sought to eradicate the vestiges of slavery, but he represented the “Republican vision of a more active and moralistic American foreign policy.”119 Morton Keller, in his seminal history of the late nineteenth-century America, placed Blaine in the vanguard of the northern Republican intellectuals, who defied southern racism and
subscribed “to the ideal of a powerful, unified, purposeful nation.” 120 Kagan observed that Blaine, Seward, and other Republicans sought a foreign policy that would eventually “place the United States at the center of global influence”121 and a domestic policy of cohesion, unity of purpose, and a revival of morality that had been so badly damaged by the rationalization of racial discrimination. Grant and Blaine believed that religion, as well as race, could indelibly mark and separate the nation.122 As described by the eminent historian Jean Edward Smith in his biography Grant, “The issue had two dimensions: public funding for sectarian education and religious exercises in public schools.”123 Division and discord between Catholics and Protestants were highly visible political issues as Catholics became the majority political force in northern cities, voted their religion, and petitioned state legislatures for public funding of Catholic schools.124 Protestants countered in efforts to have state legislatures to prohibit state funding for Catholic schools.125 The conflict escalated as Catholics challenged hymn singing, Bible reading, and praying in the public schools as Protestant rituals.126 Such religious exercises were in fact generally Protestantoriented, using, for example, a Protestant version of the Bible rather than the Catholic Douay Bible. School boards in Cincinnati, Chicago, New York, Buffalo, Rochester, and several other major cities under concerted core city Catholic political pressure were able to purge most of the Protestant religious exercises from public schools.127 In 1875, President Grant, in a speech to the veterans of the army of Tennessee, appealed for a unified nation, calling for equality of treatment and privilege between North and South, and an end to divisiveness. With cognizance of the religious political strife that was being waged between Protestants and Catholics, Grant asked the veterans to defend “free thought, free speech, a free press, pure morals unfettered by religious sentiments, and of equal rights and privileges of all men, irrespective of nationality, color, or religion.”128 Directly addressing the issue of unity, Grant maintained that the greatest danger of dividing the nation was to be found in strife and intolerance among religious sects and he warned: “I predict that the dividing line will not be Mason
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Religion and the Reconstruction Era: Grant and Blaine
and Dixon’s, but between patriotism and intelligence on the one side, and superstition, ambition, and ignorance on the other.”129 Then Grant concluded, enunciating the rationale for a unified country. To him, the key to unity was a “common school education” that advanced the knowledge of the people as the basis for a democracy that was Jeffersonian in thought and concept. Smith affirms that the foundation for Grant’s idea of a democratic nation was “free public education.”130 Grant’s resolution of the Catholic versus Protestant conflict, as explained by Smith, was “evenhanded” and denied both of their zealous self-interested positions; “he belted Protestants and Catholics alike.”131 For the Catholics, he would provide no public funding for their parochial schools; for the Protestants, he would deny them religious services in the public school classroom and provide them with no public funding of their religious schools. He said to the veterans: “Resolve that neither the State nor the nation shall support institutions of learning other than those sufficient to afford to every child the opportunity of a good common school education, unmixed with sectarian, pagan, or atheistic dogmas. Leave the matter of religion to the family altar, the church, and the private school supported entirely by private contributions. Keep the church and state forever separate.”132 On December 7, 1875, in his annual message to Congress, President Grant proposed a constitutional amendment that would require states to make schools entirely secular, banning religious exercises and the teaching of religion, and further, the amendment would prohibit states from providing aid to religious schools and institutions. He further proposed that church property should be taxed, a measure that neither Catholics nor Protestants appreciated. 133 Yet, much favorable press, both Catholic and Protestant, followed President Grant’s speech, and a week later, Speaker Blaine introduced a constitutional amendment into Congress that if passed and ratified would bring President Grant’s wishes to fruition.134 The Grant/Blaine proposed amendment in 1875 was designed to accomplish five objectives.135 First, it would effectively apply the Establishment and Free Exercise Clauses of the First Amendment to the states. As written and ratified in 1791, the First Amendment only
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applied to Congress. Second, it would reassert and define the meaning of “establishment” to comport more clearly with the intent that Madison and Jefferson had envisaged for the First Amendment. Third, it would restate the Free Exercise Clause and apply it to prevent majorities in states from using the public schools to advance their own particular brand of religious belief. The proposed amendment would directly prohibit any state from denying free exercise of religion. Per President Grant’s ideal, the provision was to ensure that public schools would be completely secular, entirely removed from the inculcation of any religious tenet or belief. The efficiency of the language in this provision has been borne out by Supreme Court precedents that have since completely secularized the public schools.136 Fourth, because the Catholic versus Protestant conflict was rooted in education and the struggle to see which sect could obtain the advantage in inculcation of religious beliefs in the children’s minds of the next generation, the Grant and Blaine amendment was directed toward education specifically. The more generalized prohibitions of the First Amendment were to be made more pointed to ensure secularization of public schools and to prohibit the use of taxation to support schools of “any religious sect or denomination.” The prohibition applied to all sects in keeping with the wording of the First Amendment as defined by Jefferson and Madison. Fifth, the proposed Amendment would prohibit public monies flowing to church schools and it would also prohibit the use of funds from the sale or rent of land grants from the national domain, reserved for education, to be used for religious purposes or institutions. Importantly too, the amendment sought to reverse the rejuvenated southern “states’ rights” arguments that had survived the Civil War and still deprived individual rights and freedoms. According to Notre Dame’s eminent historian John I. McGreevy, both Catholics and southerners looked with a jaundiced eye upon any measure that strengthened the federal government to the detriment of states’ rights.137 McGreevy says the “Catholics and southerners alike constantly warned of an expanding federal state.”138 Throughout the period in which Justice Thomas founds his “bigotry thesis,” white southern Protestants and northern white Catholics combined
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forces in opposition to federal initiatives toward unity, centralization, and nationalism. Professor McGreevy explains that: “the sources of Catholic and white southern hostility to liberal nationalism differed,” but, “the extent to which Catholic commentators on Reconstruction and Republican reform echoed their white counterparts is striking. Catholic editors . . . joined white southerners in opposing Reconstruction programs. . . .”139 In this regard, the proposed Grant/Blaine amendment was Hamiltonian in concept, invoking more central federal authority to correct injustices fostered by state action. Too, as had been vividly demonstrated, confederated states could not be relied upon to protect religious freedom or individual rights or preserve the unity of the nation. Grant and Blaine had learned that even when the Constitution explicitly prohibited certain state offenses against the individual, the conservative U.S. Supreme Court could and did neuter the applicable constitutional provision. This, of course, did happen to the Fourteenth Amendment in the Slaughter House Cases,140 in 1873, wherein the Supreme Court held that the basic rights of liberty and equality of the Fourteenth Amendment should remain under the control of state legislatures. Moreover, the Court very narrowly defined privileges and immunities to restrict the Fourteenth Amendment’s effect on civil rights. Grant and Blaine had watched helplessly as the flagship of reconstruction, the Fourteenth Amendment, had been drastically curtailed and deprived of essential application “against state violations of fundamental guarantees of liberty.”141 Thus, in view of the Supreme Court’s early emasculation of the Fourteenth Amendment, Grant and Blaine sought in their proposed amendment to prevent similar negation or nonenforcement of the Establishment and Free Exercise Clauses of the First Amendment. Further, both Grant and Blaine meant to clarify the definition of “establishment of religion” by explicit language that would clearly prohibit states from giving financial support to any and all religions. In short, the amendment that Grant proposed and that Blaine shepherded through the U.S. House was designed to deter religious intolerance and separation that threatened the unity of the nation. Just as the Fourteenth Amendment was designed to effectuate unity and equality
by preventing states from using state power and money to continue segregation of the races, the Grant/Blaine amendment was designed to prevent states from feeding religious discord by providing public financing of any and all religious schools and institutions. Bigotry obviously existed during the nineteenth century, as it has in all ages at least since Constantine and the rise of monotheism, but what was new in the Blaine era was the spirit of nationalism, and the belief that the state could provide a moral foundation, address, and rectify social and economic inequalities while ensuring new liberties. The pervasiveness and complexity of international religious conflict with emerging national governments and the many instances of extreme measures taken by both Catholics and Protestants that created divisiveness and discord in the late nineteenth century, suggest that “bigotry thesis” of Justice Thomas would require more substantial historical research than that indicated by Justice Thomas’ understandings and presumptions.
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The Founders’ Intent Regarding Separation
The critical question regarding government providing public money to clerical schools (Baptist, Catholic, Muslim, et al.) is the intent of the Founders of the American Republic. When they wrote in the first sentence of the Bill of Rights, “Congress shall make no law respecting the establishment of religion . . . ,” did they mean that government could not fund any and all religions, or did they mean simply that government could not aid one preferred religion and could thereby give public money to all religions? As discussed previously, the current Supreme Court has departed from the earlier separation precedents of Everson (1947) and Lemon (1971), and now advances a new and different constitutional philosophy in Agostini (1997), Helms (2000), Zelman (2002), and Davey (2004) that permits Congress and state legislatures to provide public moneys for “faith-based initiatives,” etc., to all religious institutions and schools, even those that are “pervasively sectarian,” including those whose purpose it is to educate the clergy.
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The Founders’ Intent Regarding Separation
Whether we should look to history to interpret the Constitution, and not simply rely on legal precedents, is a subject of considerable debate among judges and historians. As is amply demonstrated by the Thomas decision in Helms, judges may have only a surface view of history. According to Frank Lambert, the Purdue University scholar of American history, religion was viewed as a divisive force, (a progenitor of factions), threatening “a more perfect union,”142 and to avoid the inherent discord that religion generated, the Founders sought to completely separate church and state.143 In pursuit of separation, Madison opposed using public tax money to support one and all ministers of religion.144 Lambert concluded that history teaches that the Founder’s intent was not nonpreferential toward religious sects, but rather that the government should remove religion from its cognizance. Thus, according to Lambert, “The Founders’ solution to the problem of how to keep religion from undermining union was to ignore it.”145 This position of the majority of the Supreme Court today, that the Establishment Clause requires that government be merely nonpreferential toward religion, is clearly contrary to the conclusions of Leonard Levy, the constitutional historian, who points out that the Establishment Clause when ratified in 1791 was meant to prevent not just state preference for one religion over others, but it also was intended to forbid nonpreferential support for any or all religious groups.146 Levy’s reading of Madison leads to the conclusion that disestablishment meant that government had no power to legislate concerning religion, period, “to aid one sect exclusively or to aid all equally.”147 Madison famously observed in his Memorial and Remonstrance, “That the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever.” For this danger not to exist was to have a constitution that would prevent legislatures from enacting any laws at all that touched religion. Madison sought to have no adjoining or abutting of government with religion in any form or context, requiring complete separation, and as is observed earlier in this text, Jefferson made his position quite clear in his Act for Establishing Religious Freedom, passed by the
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Virginian legislature in 1786: “That to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors, is sinful and tyrannical.” That government should have nothing to do with religion and vice versa was intended by those who designed and rationalized the Bill of Rights in 1789 is best discerned in the actual wording of the Establishment Clause. The words were well-considered and precise in their meaning. The Clause states: “Congress shall make no law respecting an establishment of religion. . . .” As Levy concludes, the mandate is quite clear. It states concisely that Congress is to “make no law,” no law regarding religion, whatsoever. Further, the founders used the word “respecting” which is a synonym for “concerning” or “considering,” thus Congress cannot consider an establishment of religion. Moreover, the Clause does not say “one” establishment, rather it uses the article “an.” “An establishment,” according to Levy, referred to all religions as a group. Thus, the question is, does the word establishment mean one religion or all religions? Madison in his Memorial and Remonstrance opposed a general tax assessment in Virginia that had been proposed to support teachers of all religious sects, not just one sect. In objecting to such a tax for all religions, Madison repeatedly referred to an “establishment of religion.”148 Madison considered the tax for all religions as “the establishment proposed by the bill.” And he further referred to the tax law for all religions as the “proposed establishment.” The intent of the words an establishment was in reference to any one or more religions and did not imply that government should only be neutral or nonpreferential among religions. In 1785, a strong push was launched in the Continental Congress to set aside a section of land under the Northwest Ordinance for religion in western territories. Madison opposed and helped defeat the plan not because it was religiously neutral and nonpreferential, but because it was in “consideration” of religion.149 Thus, to Madison, “an establishment” pertained to all religions without regard to neutrality or preference. This is Levy’s interpretation of the Establishment Clause, which is essentially confirmed by the debates of the House and Senate in 1789 as the delegates considered the
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appropriate wording of the religion provision in the First Amendment. The House Committee of the Whole of the U.S. House of Representatives proposed that “no religion shall be established by law.” Another proposal was that “Congress shall make no laws touching religion. . . .” In the Senate, the preference question arose more directly when it was proposed and rejected that the amendment have inserted a clause that prohibited Congress from making a law favoring “One Religious sect or Society in preference to others” (emphasis added). Another Senate proposal was also rejected that stated that “Congress shall make no law establishing any particular denomination of religion in preference to another. . . .” (emphasis added). Yet another Senate proposal was agreed on that read, “Congress shall make no law establishing articles of faith or a mode of worship. . . .”150 According to Levy, the Senate’s version rejecting the preference language compelled the House Committee to decide the issue. Madison was Chair of the House Conferees. Finally, rejecting all language regarding “preference,” or neutrality of one religious sect over another, the final agreed wording was reached that became the final version of the “Establishment Clause” of the First Amendment. The House Conferees, “not satisfied with merely a ban or preference of one sect or religion over others,” 151 stated, “Congress shall make no law respecting an establishment of religion. . . .”152 Thus, according to Levy’s interpretation of the intent of the conferees, the Establishment Clause did not speak of neutrality among religious sects, nor did it enunciate a requirement of nonpreference, instead it simply forbade “an establishment of religion,” prohibiting Congress to make any law at all that considers religion. Rakove, in his Pulitzer Prize–winning treatise on the Constitution, titled Original Meanings: Politics and Ideas in the Making of the Constitution, confirms Levy’s interpretations that Madison’s and Jefferson’s intent with regard to religion was “a flat constitutional denial of legislative jurisdiction . . . a specific refusal to permit government to act over an entire area of behavior” (religion).153 According to Rakove, religion was different and more basic than other rights. He observes that in the “realm of religion,” Madison and Jefferson denied that the State had any constitutional capacity to act at all.154
Thus, the three prominent historians, Lambert, Levy, and Rakove, agree that what was new about the American idea of separation of church and state was that the Establishment Clause and the Free Exercise Clause of the First Amendment meant that laws of the State could not touch religion, they could not provide public appropriation of tax funds to aid one religion or all religions, nor could the State promulgate any legislation at all in the realm of religion. Such conclusions regarding constitutional intent of the Founding Fathers by eminent historians call into dispute the interpretations laid down by the Supreme Court in recent years as expressed in Agostini, Helms, Zelman, and Davey.
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New Theories of Church and State
With the dramatic change in the philosophy of the U.S. Supreme Court toward church and state in the past few years, three rationalizations of competing interpretations of the Establishment Clause and Free Exercise Clause of the First Amendment have emerged. 155 The first is the traditional American strict separation philosophy of Locke, Jefferson, and Madison. The second is what is called the nonpreference theory, advanced by Justices O’Connor, Thomas, Scalia, et al., who interpret the religion clauses to simply say that government can aid religion but must be impartial; that it cannot favor one religion over another, or secularism over religion. The third is the noncoercive theory; under this reasoning, the government can aid religion and does not violate the Establishment Clause unless it effectively establishes a state religion.
SEPARATION The separation theory, as explained earlier, is based on the philosophy that government and religion should operate in two entirely separate spheres, as Madison reasoned in his Memorial and Remonstrance. Government should be secular, not ecclesiastical, and should not have anything to do with the spiritual world and the hereafter. Rather, government should relate only to temporal affairs of men of the present world. The church, on the other hand, should be purely private and concerned with personal beliefs and individual theology, not attached to or dependent upon
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New Theories of Church and State
government in any way. “Separation” means the temporal and the spiritual should not “touch.” As observed above, the separation theory was most clearly enunciated in Everson v. Board of Education, where Justice Black, writing for the majority of the Supreme Court said: “The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable.”156 In Reynolds v. United States, the Court interpreted the Establishment Clause intended to “erect a wall of separation between church and state.”157 Specifically to the point, in Everson, Justice Black captured the essence of the theory of separation when he said, “Neither a state nor the federal government . . . can pass laws which aid one religion, aid all religions, or prefer one religion over another,”158 and “no tax in any amount large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.”159 This passage in Everson best captures the essential difference between separation and the other two theories regarding the relationship between church and state. Justice Brennan, in his dissent in Marsh v. Chambers,160 explained that the intent of the Establishment Clause is to guarantee “the individual right of conscience . . . to keep the state from interfering in the essential autonomy of religious life, . . . to prevent the trivialization and degradation of religion by too close an attachment to the organs of government,” and to “help assure that essentially religious issues . . . not become the occasion for battle in the political arena.”161 As the Supreme Court observed in Everson, separation does not call for the denial of essential public service, such as public transportation for children who attend parochial schools, nor does it require the denial of civil services such as fire and police protection to benefit churches, but separation does mean that churches are not entitled to be strengthened by having public funds to set up their own transportation systems, private fire departments, religious police forces, or to pay costs of attending clerical schools.
NONPREFERENTIAL SUBSIDIZATION A second theory says that the dictates of the Establishment and Free Exercise Clauses are not offended if government provides funds and supports religion so long as it is neutral, neither
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preferring nor favoring one religion over another. In Mueller v. Allen,162 with Chief Justice Rehnquist writing for the majority, the Supreme Court upheld tax deductions from state income taxes for parents’ expenses for children attending parochial schools. He maintained that because the deductions were available to all parents, regardless of the type of private or religious school attended, the benefits were neutral. Kurland, a proponent of this theory, has written that “the clauses should be read as stating a simple precept: that government cannot utilize religion as a standard for action or inaction because the clauses, read together as they should be, prohibit classification in terms of religion, either to confer a benefit or to impose a burden.”163 The nonpreference theory is also at times called the “neutrality” theory. Justice Rehnquist, in his dissent in Wallace v. Jaffree, interpreted the Establishment Clause to forbid “preference among religious sects or denominations.”164 He argued that the Establishment Clause did not prohibit the federal government from providing nondiscriminatory funding for religious schools.”165 Justice O’Connor, an advocate of the nonpreference theory, has explained the issue in terms of an “endorsement test.” According to this explanation, government violates the Establishment Clause if it endorses or “symbolically” endorses either religion or secularism. O’Connor wrote that “[e]very government practice must be judged in its unique circumstances to determine whether it constitutes an endorsement or disapproval of religion.”166 Commenting on the confusion implicit in the endorsement test, Chemerinsky writes, “People may perceive symbols in widely varying ways. The Court is left to make a subjective choice as to how people perceive a particular symbol.”167 Thus, the task of the courts in deciding whether government endorses or prefers a religion may become very difficult to ascertain. Moreover, Levy, quoted above in this chapter, points out that government neutrality was never the objective of the Establishment Clause of the First Amendment.168 Levy documents that before approving the wording of the religion clauses as ratified in 1791, the U.S. Senate rejected three motions containing language that would have prohibited government preference of one religious sect over another.169 He concludes that the
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Establishment Clause means that not only does the clause require neutrality and enjoin preference of one religion over others, but also clearly prohibits “governmental support, primarily financial,”170 for one religion or all religions. The present majority of Supreme Court Justices, however, do not accept such documentation of the Founders’ original intent. Rather, the Supreme Court’s majority, although undecided about neutrality versus endorsement, has clearly abrogated the separation interpretation and now appears more inclined toward the accommodation theory which posits that government should be free to subsidize churches and clerical institutions.
SUBSIDIZATION AND COLLABORATION A third theory of the intent of the religion clauses is that of subsidization and collaboration, sometimes called accommodation, where the state effectively embraces, funds, and obliges religion’s presence in government.171 This approach reads the Establishment Clause to mean that the government can fund religion and religious activity and is only prohibited from creating a state church or passing laws that coerce religions that are not in government favor. The underlying “theory of accommodation” has long been advocated by the priestcraft and parochial school proponents, but has only gained recent judicial support under the present Supreme Court. Justice Kennedy, in advancing this theory, has said that government can aid religion, and the only Establishment Clause restraint is that “government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which establishes a [state] religion or religious faith, or tends to do so.”172 The word coerce, as used by Justice Kennedy, is a central aspect of this theory. Government cannot use its power to establish state orthodoxy in religion. If, for example, government aid is denied for certain religious groups in an effort to gain adherence to a particular religious viewpoint, it would violate the Establishment Clause. The coercion test appears to be most readily applicable to prevent religious exercises in public schools; however, it would presumably do little to prevent government aid to religious schools. On the contrary, it appears that “accommodation” clearly permits an unremitting flow of public funds to religious schools.
In Lee v. Wisconsin, clergy-delivered prayers at public school graduations were declared unconstitutional, and “coercion” was the rationale for invalidation of the practice. Justice Kennedy, writing for the majority, said that such prayers are inherently coercive because there is an implicit pressure to attend the graduation ceremonies and be subjected to listen, or to leave the ceremonies during the prayer.173 The dissenting opinion in Lee, written by Justice Scalia, joined by Chief Justice Rehnquist and Justices White and Thomas, strongly supported a broader collaboration approach, maintaining that the Establishment Clause could only be violated if the law required religious practices and punished those who failed to engage. Accordingly then, at least four of the Supreme Court Justices in Lee supported an interpretation of the Establishment Clause that would permit accommodation of religion in government, which would be prohibited only if government directly and overtly coerced dissenters. Under this theory, government is now permitted to support “pervasively sectarian” religious institutions as confirmed in 2004 by the Supreme Court’s ruling in Locke v. Davey.174 Therefore, the “accommodation” or “noncoercive theory” as well as the nonpreference theory permit state and federal governments to support churches and religious institutions with the only caveat being that governments cannot overtly favor one religion or establish a state religion.
PUBLIC MONEY FOR RELIGION: THE NEW JURISPRUDENCE . . . there is no doubt that the State could, consistent with the Federal Constitution, permit [a public voucher program for students] to pursue a degree in devotional theology. . . . [a State can provide public funds for] students to attend pervasively religious schools so long as they are accredited. —Chief Justice Rehnquist, Locke v. Davey
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Vouchers
The subject of vouchers has become a highly controversial issue in politics and religion in America. Vouchers are considered the preferred
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Vouchers
alternative funding mechanism for conveying public tax money to religious schools. A voucher is a coupon worth a predetermined amount of money that is presented at a private or parochial school by the parent, whereupon the school and parent endorse the voucher and the school redeems the money from the state or local school district. In keeping with the Supreme Court’s decision in Zelman v. Simmons-Harris, vouchers that provide public funds for Catholic or other clerical schools do not violate the Establishment Clause of the First Amendment. Vouchers or similar devices are not new; they have been used as a conduit to move public funds to the private sector, not only for education, but for various health, welfare, and other functions of government as well. Yet, vouchers are most closely understood in the public’s mind as devices to funnel money from general taxation to church schools. The voucher’s connection with the struggle between religious schools and public schools goes back at least to the French Revolution, where in 1793, the Catholic Church thwarted the French government’s efforts to create a system of public schools, and in its place, initiated a system whereby parents were given vouchers for cash to employ teachers and form schools that best suited them. The voucher committed the state to pay the tuition (rétribution scolaire) of each student at a standard rate.175 Although this early system soon collapsed, it was not dissimilar from the voucher systems now in use in a few states and the federal government in the United States. In the modern era, the use of tuition vouchers for private schools did not arise in any significant degree until the public schools were racially desegregated and tuition vouchers were used in the south to circumvent the Equal Protection Clause of the Fourteenth Amendment. Most notably, in an attempt to nullify the effects of Brown v. Board of Education,176 the Virginia legislature enacted a tuition voucher law in 1956, and an amended one in 1959, that permitted the closing of public schools and the opening of private, segregated academies.177 Per the Virginia legislation, a private group formed a charter school for white children only, and the Board of Supervisors of Prince Edward County awarded the parents tuition vouchers and tax credits. In the case of County School Board of Prince Edward County v. Griffin,178
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the Virginia Supreme Court upheld the validity of the law. On appeal of the question to the U.S. Supreme Court, the public school closing and the tuition voucher and tax credit scheme was held to be in violation of the Equal Protection Clause of the Fourteenth Amendment.179 Thus, the tuition voucher as a means for conveying public funding to private schools in circumvention of constitutional protections established a lamentable legal precedent in race relations. The record of tuition vouchers as a device to skirt constitutional restraints has provided incentive for many church-related elementary and secondary schools to pursue the same. Vouchers have become a more volatile political issue throughout the last three decades of the twentieth century as fundamentalist religious groups have opened new schools in the South, and as white parents have moved their children out of desegregated public schools. In the northern central cities, pressure has also increased for states to fund vouchers, as Catholic schools have faced shortages of teachers and resources.180 Moreover, the ideals of capitalism and the virtues of competition have coupled with denominational school interests to advance the libertarian virtues of consumer and parental choice. The strength of the privatization movement has permeated not only the federal government’s domestic policy, but its foreign policy as well, influencing the World Bank and the International Monetary Fund to require tuition voucher systems in developing countries.181 Domestically, economic and social forces have combined to establish a national political agenda that aggressively advances privatization of education. In response, President George W. Bush announced a voucher plan for the fiscal 2004 budget for the District of Columbia, the only school system operated directly by the federal government.182 In July 2002, a presidential commission under the Bush Administration recommended empowering parents to exercise choice for students served by the Individuals with Disabilities Education Act (IDEA). 183 Also, No Child Left Behind (NCLB), in its original form, was designed to permit students to opt out of failing schools with vouchers to attend church-related and private schools. Before NCLB was amended in the U.S. Senate, it would have followed the Florida voucher plan (see Chapter 2) that
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initially encouraged students in public schools that have failed to achieve statewide assessment benchmarks to obtain vouchers for enrollment in other public schools or private religious schools. The tuition voucher program in Milwaukee, Wisconsin, established in 1990 and expanded in 1995, involves more than 10,000 students and is designed to provide vouchers to students from low-income families to attend private or religious schools. On review of the Milwaukee voucher plan, the Wisconsin Supreme Court held that it did not offend any of the three prongs of the Lemon test under the First Amendment, nor did it violate Article I, Section 8, which prohibits money to “be drawn from the treasury for the benefit of religious societies, or religious or theological seminaries.”184 The Wisconsin court disagreed with the plaintiff’s contention that the voucher aid benefited the church school. The court concluded that the “primary effect” of such funds was not to the benefit of the religious school if the state funds were washed through a third party. The court said, “Public funds may be placed at the disposal of third parties so long as the program on its face is neutral between sectarian and nonsectarian alternatives and the transmission of funds is guided by the independent decision of third parties.”185 The legal contest over this voucher plan ended when the U.S. Supreme Court denied certiorari, 186 and the Wisconsin court’s ruling prevailed. In 1995, the Ohio legislature enacted the Cleveland voucher program, which provided funds for tuition at private and parochial schools. In upholding the Cleveland voucher program in Zelman v. Simmons-Harris,187 the U.S. Supreme Court established the long sought-after precedent that expounded a constitutional justification for voucher aid to church-related schools. Chief Justice Rehnquist, writing for the majority, relied on a neutrality or nonpreference rationale, saying that the “program permits the participation of all schools within the district, religious or nonreligious. . . . Program benefits are available to participating families on neutral terms, with no preference to religion.”188 According to the Court, the fact that “46 of the 56 private schools . . . participating in the program are religious schools does not condemn it as a violation of the Establishment Clause.”189
Zelman is the definitive word on vouchers, the Establishment Clause, and church–state relationships. Under this decision, it would be difficult to envisage any type of government aid program, vouchers or otherwise, to church schools that would be so blatantly religious that this Supreme Court would strike it as violative of the Establishment Clause of the First Amendment.
Ohio Voucher Program Does Not Violate the Establishment Clause of the First Amendment
Zelman v. Simmons-Harris Supreme Court of the United States, 2002. 536 U.S. 639, 122 S. Ct. 2460.
Chief Justice REHNQUIST delivered the opinion of the Court. The State of Ohio has established a pilot program designed to provide educational choices to families with children who reside in the Cleveland City School District. The question presented is whether this program offends the Establishment Clause of the United States Constitution. We hold that it does not. . . . The program provides two basic kinds of assistance to parents of children in a covered district. First, the program provides tuition aid for students in kindergarten through third grade, expanding each year through eighth grade, to attend a participating public or private school of their parent’s choosing. . . . Second, the program provides tutorial aid for students who choose to remain enrolled in public school. . . . The tuition aid portion of the program is designed to provide educational choices to parents who reside in a covered district. Any private school, whether religious or nonreligious, may participate in the program and accept program students so long as the school is located within the boundaries of a covered district and meets statewide educational standards. . . . Participating private schools must agree not to discriminate on the basis of race, religion, or ethnic background, or to “advocate or foster unlawful
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Vouchers
behavior or teach hatred of any person or group on the basis of race, ethnicity, national origin, or religion.” . . . Any public school located in a school district adjacent to the covered district may also participate in the program. . . . All participating schools, whether public or private, are required to accept students in accordance with rules and procedures established by the state superintendent. . . . Tuition aid is distributed to parents according to financial need. . . . The tutorial aid portion of the program provides tutorial assistance through grants to any student in a covered district who chooses to remain in public school. Parents arrange for registered tutors to provide assistance to their children and then submit bills for those services to the State for payment. . . . Students from low income families receive 90% of the amount charged for such assistance up to $360. All other students receive 75% of that amount. . . . The number of tutorial assistance grants offered to students in a covered district must equal the number of tuition aid scholarships provided to students enrolled at participating private or adjacent public schools. . . . The program has been in operation within the Cleveland City School District since the 1996–1997 school year. In the 1999–2000 school year, 56 private schools participated in the program, 46 (or 82%) of which had a religious affiliation. None of the public schools in districts adjacent to Cleveland have elected to participate. More than 3,700 students participated in the scholarship program, most of whom (96%) enrolled in religiously affiliated schools. Sixty percent of these students were from families at or below the poverty line. In the 1998–1999 school year, approximately 1,400 Cleveland public school students received tutorial aid. . . . . . . In December 2000, a divided panel of the Court of Appeals affirmed the judgment of the District Court, finding that the program had the “primary effect” of advancing religion in violation of the Establishment Clause. . . . We granted certiorari, . . . and now reverse the Court of Appeals. The Establishment Clause of the First Amendment, applied to the States through the Fourteenth Amendment, prevents a State from enacting laws that have the “purpose” or “effect” of advancing
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or inhibiting religion. Agostini v. Felton, . . . (1997) (“[W]e continue to ask whether the government acted with the purpose of advancing or inhibiting religion [and] whether the aid has the ‘effect’ of advancing or inhibiting religion” . . .). There is no dispute that the program challenged here was enacted for the valid secular purpose of providing educational assistance to poor children. . . . Thus, the question presented is whether the Ohio program nonetheless has the forbidden “effect” of advancing or inhibiting religion. . . . Three times we have confronted Establishment Clause challenges to neutral government programs that provide aid directly to a broad class of individuals, who, in turn, direct the aid to religious schools or institutions of their own choosing. Three times we have rejected such challenges. In Mueller, we rejected an Establishment Clause challenge to a Minnesota program authorizing tax deductions for various educational expenses, including private school tuition costs, even though the great majority of the program’s beneficiaries (96%) were parents of children in religious schools. . . . That the program was one of true private choice, with no evidence that the State deliberately skewed incentives toward religious schools, was sufficient for the program to survive scrutiny under the Establishment Clause. In Witters, we used identical reasoning to reject an Establishment Clause challenge to a vocational scholarship program that provided tuition aid to a student studying at a religious institution to become a pastor. . . . Five Members of the Court, in separate opinions, emphasized the general rule from Mueller that the amount of government aid channeled to religious institutions by individual aid recipients was not relevant to the constitutional inquiry. . . . Our holding thus rested not on whether few or many recipients chose to expend government aid at a religious school but, rather, on whether recipients generally were empowered to direct the aid to schools or institutions of their own choosing. Finally, in Zobrest, we applied Mueller and Witters to reject an Establishment Clause challenge to a federal program that permitted sign language interpreters to assist deaf children enrolled in religious schools. . . . Its “primary
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beneficiaries,” we said, were “disabled children, not sectarian schools.” . . . We further observed that “[b]y according parents freedom to select a school of their choice, the statute ensures that a government paid interpreter will be present in a sectarian school only as a result of the private decision of individual parents.” . . . Our focus again was on neutrality and the principle of private choice, not on the number of program beneficiaries attending religious schools. . . . Because the program ensured that parents were the ones to select a religious school as the best learning environment for their handicapped child, the circuit between government and religion was broken, and the Establishment Clause was not implicated. Mueller, Witters, and Zobrest thus make clear that where a government aid program is neutral with respect to religion, and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice, the program is not readily subject to challenge under the Establishment Clause. A program that shares these features permits government aid to reach religious institutions only by way of the deliberate choices of numerous individual recipients. The incidental advancement of a religious mission, or the perceived endorsement of a religious message, is reasonably attributable to the individual recipient, not to the government, whose role ends with the disbursement of benefits. . . . We believe that the program challenged here is a program of true private choice, consistent with Mueller, Witters, and Zobrest, and thus constitutional. As was true in those cases, the Ohio program is neutral in all respects toward religion. . . . It confers educational assistance directly to a broad class of individuals defined without reference to religion, i.e., any parent of a school-age child who resides in the Cleveland City School District. The program permits the participation of all schools within the district, religious or nonreligious. Adjacent public schools also may participate and have a financial incentive to do so. Program benefits are available to participating families on neutral terms, with no reference to religion. The only preference stated anywhere in the program is a preference for low-income families, who receive greater
assistance and are given priority for admission at participating schools. There are no “financial incentive[s]” that “ske[w]” the program toward religious schools. . . . Such incentives “[are] not present . . . where the aid is allocated on the basis of neutral, secular criteria that neither favor nor disfavor religion, and is made available to both religious and secular beneficiaries on a nondiscriminatory basis.” . . . Respondents suggest that even without a financial incentive for parents to choose a religious school, the program creates a “public perception that the State is endorsing religious practices and beliefs.” . . . But we have repeatedly recognized that no reasonable observer would think a neutral program of private choice, where state aid reaches religious schools solely as a result of the numerous independent decisions of private individuals, carries with it the imprimatur of government endorsement. . . . Respondents and Justice SOUTER claim that even if we do not focus on the number of participating schools that are religious schools, we should attach constitutional significance to the fact that 96% of scholarship recipients have enrolled in religious schools. They claim that this alone proves parents lack genuine choice, even if no parent has ever said so. We need not consider this argument in detail, since it was flatly rejected in Mueller, where we found it irrelevant that 96% of parents taking deductions for tuition expenses paid tuition at religious schools. Indeed, we have recently found it irrelevant even to the constitutionality of a direct aid program that a vast majority of program benefits went to religious schools. . . . The constitutionality of a neutral educational aid program simply does not turn on whether and why, in a particular area, at a particular time, most private schools are run by religious organizations, or most recipients choose to use the aid at a religious school. As we said in Mueller, “[s]uch an approach would scarcely provide the certainty that this field stands in need of, nor can we perceive principled standards by which such statistical evidence might be evaluated.” . . . In sum, the Ohio program is entirely neutral with respect to religion. It provides benefits directly to a wide spectrum of individuals, defined only by financial need and residence in a particular school district. It permits such individuals to exercise genuine choice among options public
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Independent Vitality of State Constitutions
and private, secular and religious. The program is therefore a program of true private choice. In keeping with an unbroken line of decisions rejecting challenges to similar programs, we hold that the program does not offend the Establishment Clause. The judgment of the Court of Appeals is reversed. It is so ordered.
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Independent Vitality of State Constitutions
State constitutions may be more protective of individual rights and freedoms than the federal Constitution. With regard to protecting religious freedoms, state constitutions may be stronger in preventing legislatures from taking tax monies from individual citizens and giving it to churches and ecclesiastical schools and colleges. State constitutions that have such higher standards of anti-establishment protections are said to have “independent vitality.” The terminology independent vitality emanates from a Harvard Law Review article by Justice William J. Brennan, Jr., in 1977, where he espoused the need to invoke state constitutional protections of individuals over and beyond the rights and interests guaranteed in the Federal Constitution.190 As described by Clint Bolick in the Texas Review of Law and Politics, Justice Brennan “pointed out that state constitutions provide an additional layer of constitutional rights, and in many cases more expansive protection for those rights.”191 Justice Brennan, known for his views of expansive protections of the U.S. Constitution, had become concerned with inelastic conceptions of federal protections and as a result encouraged state courts to exercise the “independent vitality” of their own state constitutions. Brennan was particularly concerned about the “substantial irony” of the overreader of federal courts in taking action to “upset state court decisions protecting individual rights.”192 A vivid example of which, in the church–state context, is Justice Thomas’ explicit threat in Helms to apply his “bigotry thesis” to invalidate state constitutional provisions that prohibit state legislation from funding parochial schools. The ideals of freedom of conscience are reflected in the state constitutions as well as in
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the First Amendment of the U.S. Constitution. A state law that is constitutional under the First Amendment of the U.S. Constitution may not be constitutional under the state constitution. Some of the state provisions establish strong and effective barriers preventing the mixing of affairs of state with those of religion. The history, tradition, and religious influence of both Protestant and Catholic churches in the various states, though, have led to judicial interpretations that have, in many instances, weakened the separation of church and state. As political pressure for use of tax funds for support of religious schools has intensified, primarily in states with greater numbers of parochial schools, the establishment principles of those state constitutions have been interpreted by state courts to be less restrictive. For example, even though the states of Rhode Island, New York, Pennsylvania, Ohio, and Illinois have strongly worded constitutional prohibitions against establishment of religion, lenient judicial interpretations have given the legislatures substantial latitude in aiding parochial schools. In these states, the courts have generally ruled that the state constitutional restraints are no more, and probably less, restrictive than the First Amendment of the U.S. Constitution. As an example, the various pressures for aid to parochial schools in Rhode Island, ironically the state of Roger Williams, have caused the courts to negate the meaning of the strong disestablishment language of the Rhode Island Constitution, which says, “[W]e, therefore, declare that no man shall be compelled to frequent or to support any religious worship, place, or ministry whatever” (emphasis added).193 The Supreme Court of Rhode Island, in considering the constitutionality of textbook aid to parochial schools, noted that the allegedly offending statute was less vulnerable to attack under the Rhode Island Constitution than under the First Amendment. This court held that the Rhode Island Constitution erected a lower wall of separation than did the First Amendment: Nor can we agree with appellees that the language of the constitution of this state prohibiting establishment of religion or the interference with the free exercise thereof is more restrictive than the language of the federal constitution as interpreted in Allen. . . .194
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Similarly, an apparently strong and definitive prohibition in the Illinois Constitution, forbidding state aid to church schools by stating that neither the state nor any school district or public corporation “shall ever make any appropriation or pay from any public fund whatever, anything in aid of any church or sectarian purpose, or to help support or sustain any school . . . controlled by any church or sectarian denomination whatever,”195 has been substantially weakened by state court interpretation. The Illinois Supreme Court has held that the Illinois Constitution is no more restrictive than the First Amendment.196 This view of the Illinois court appears to reflect a prevailing pattern of precedents of state courts in interpreting their own constitutions, closely adhering to the constitutional philosophy of the U.S. Supreme Court.197 The Connecticut Supreme Court followed the Everson precedent and upheld a state statute that provided public funds for transportation of parochial school students.198 The “public purpose” theory used by the U.S. Supreme Court in Everson was cited as the controlling rationale for the Connecticut Constitution. The Connecticut Court said: “It cannot be said that their transportation does not serve the purpose of education, and [e]ducation in itself serves a public purpose. . . .”199 Similarly, the Indiana Constitution has been held to be no more forceful in the separation of church and state than is the First Amendment.200 Other states, including Iowa, 201 Kansas,202 Maine,203 Michigan,204 Minnesota,205 New Jersey,206 and Wisconsin,207 have applied the U.S. Supreme Court’s First Amendment rationale to the church–state provisions of their own constitutions. The judicial precedents of many of these states explicitly follow the establishment of religion tests used by the U.S. Supreme Court. It remains to be seen whether a lessening of the strictures by the U.S. Supreme Court in interpreting the Establishment Clause of the First Amendment—as indicated by the “new Establishment jurisprudence” of Agostini v. Felton208 and by the current makeup of the membership of the Court—will in turn elicit a corresponding further lowering of the establishment standards of state constitutions. It is possible, of course, that state supreme courts will choose instead to maintain a higher standard in the protection of religious liberties. There is precedent for greater
assertiveness on the part of state courts in the protection of individual rights and freedoms.209 States with “Independent Vitality.” The history and legal precedents of some states do indicate that there may be substantial resistance to reinterpretation that would diminish present religious liberty protections in state constitutions. A recent example of a state’s independent vitality is a 2010 interpretation of the state constitution rendered by the Kentucky Supreme Court.210 In this case, the Court held that a state appropriation for the constitution of a pharmacy school at a Baptist college violated the Kentucky Constitution, in particular, the right of religious freedom provision that forbids that anyone (a taxpayer) “be compelled . . . to contribute to the erection or maintenance” of any place of “ecclesiastical polity.”211 The Court rejected the Baptist school’s argument, based on Justice Thomas’ “bigotry thesis” in Helms,212 that the Kentucky Constitution’s prohibition of public appropriations to religious schools was founded in “Blaine Amendment” type of animosity toward clerical institutions. The Kentucky court cited Justice Rehnquist’s dictum in Locke v. Davey to the effect that it is permissible for states to draw “a more stringent line than that drawn by the United States Constitution” in advancing the state’s “anti-establishment interests.” Other states, including Alaska, Colorado, Hawaii, Idaho, Iowa, Kentucky, Massachusetts, Missouri, Montana, New Hampshire, Washington, and Wyoming, have constitutional provisions that would suggest strong and definite opposition to legislative action to use public monies to aid parochial schools. For example, the Alaska Supreme Court in Matthews v. Quinton213 found “unpersuasive” the U.S. Supreme Court’s rationale in Everson that the transportation of school children to parochial schools was for the benefit of the children only. Rather, the Alaska court concluded that furnishing transportation to nonpublic school students at public expense was a direct benefit to the school, just as would be the payment of teachers’ salaries or building and equipment costs.214 Reasoning thusly, the court in Matthews held that furnishing transportation to parochial school students violated the provision in the Alaska Constitution that forbade the use of “public funds for the direct benefit of any religious or other private educational foundation.”215
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Independent Vitality of State Constitutions
The Colorado Constitution, too, appears to contain a stronger church–state provision than that of the First Amendment. Article V, § 34 of the Colorado Constitution forbids state appropriation for educational purposes to any person or corporation not under absolute control of the state or to any denominational or sectarian institution.216 Moreover, Article IX, § 7 of the Colorado Constitution provides that [n]either the general assembly, nor any county, city, town, township, school district or other public corporation, shall ever make any appropriation, or pay from any public fund or moneys whatever, anything in aid of any church or sectarian society, or for any sectarian purpose, or to help support or sustain any school, academy, seminary, college, university or other literary or scientific institution, controlled by any church or sectarian denomination whatsoever. . . .217
Similarly, the Hawaii Constitution is quite specific in banning the use of public money for aid to parochial schools. In Spears v. Honda,218 a 1968 case, the Hawaii Supreme Court refused the permissive interpretation advanced by the U.S. Supreme Court in Everson, saying, “We find that the framers did not open the door one bit. The language of the Constitution itself is unequivocal. It explicitly states, ‘Nor shall public funds be appropriated for the support or benefit of any sectarian or private educational institution.’ ”219 In the same vein, the Idaho Supreme Court has said, “The Idaho Constitution places much greater restriction upon the power of state government to aid activities undertaken by religious sects than does the First Amendment to the Constitution of the United States.”220 The 1918 Iowa case of Knowlton v. Baumhover221 enunciates a stronger state separation requirement than does the federal First Amendment. In this case, the Iowa Supreme Court rejected the idea that a religious school could be publicly funded because it had both secular and sectarian purposes. In dismissing the reasoning that was later given currency by the U.S. Supreme Court in Allen,222 the Iowa court denied the constitutionality of an Act that provided state funds to parochial schools for aspects of the secular school program. In 1969, the attorney general of Iowa223 relied on Knowlton,224 saying that “[t]he case held that every church or other organization upholding or promoting any form of religion or
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religious faith or practice is a ‘sect’ and that the right to use public school funds for the advancement of religious or sectarian teaching is denied to each and all. The Court found that to constitute a sectarian school or sectarian instruction which may not lawfully be maintained at public expense, it is not necessary to show that the school is wholly devoted to religious or sectarian teaching.” The reasoning by the Iowa court in Knowlton appears to reject both the child benefit and the public purpose rationales used to justify aid to parochial schools. The Massachusetts Supreme Court has held that “the language of our anti-aid amendment,” Article 46, Section 2 of the Amendments to the Massachusetts Constitution rewritten in 1974, which says: No grant, appropriation or use of public money . . . shall be made or authorized by the Commonwealth . . . for the purpose of funding, maintaining or aiding any . . . primary or secondary school, . . . which is not under the exclusive control . . . of public officers or public agents . . .
prohibits the state from creating tax deductions for school expenditures for tuition, textbooks, and transportation for parents of children who attend private and parochial schools.225 The Court exerted the independent vitality of the Massachusetts Constitution from the U.S. Constitution, holding: “[The] First Amendment of the U.S. Constitution need not enter our analysis. The language of our anti-aid amendment is ‘much more specific’ than the First Amendment,226 and its restrictions are ‘more stringent.’” 227 Moreover, the Massachusetts court refused to distinguish between direct and indirect aid schemes. According to the Court, “[T]he form of payment to a private school is not dispositive on the issue of whether aid is prohibited. If the aid has been channeled to the student, rather than to the private school, the focus still is on the effect of the aid, not on the recipient.”228 The Massachusetts court has also ruled that vouchers would be unconstitutional in Massachusetts, saying that money allocated in “the form of vouchers to students attending private elementary and secondary schools . . . paid only upon the payee’s endorsement of the voucher to the school of his or her choice . . .”229 is in “practical effect . . . an indirect form of aid to nonpublic schools,” 230
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which would violate Article 46, Section 2 of the Constitution of Massachusetts. The Missouri Supreme Court has made it clear that the Missouri constitutional restraint is more restrictive than the federal First Amendment. 231 The Missouri Supreme Court has said that “[t]he constitutional policy of our state has decreed the absolute separation of church and state, not only in governmental matters, but in educational ones as well.”232 In comparing the Missouri establishment standard to the Establishment Clause of the First Amendment, the Missouri court said: [I]t becomes readily apparent that the provisions of the Missouri Constitution declaring that there shall be a separation of church and state are not only more explicit but [also] more restrictive than the Establishment Clause of the United States Constitution [emphasis added].233
Thus, the Missouri Constitution has “independent vitality” and is a definitive obstacle to legislation designed to provide public funds for parochial schools. Both Montana and Wyoming have religious liberty protections that are stronger than those of the First Amendment. The Montana Supreme Court in 1971, 234 in barring the employment of public school teachers in parochial schools, noted that the practice would probably have violated the First Amendment as interpreted by the Lemon v. Kurtzman235 tripartite test, but the Montana court made it clear that the Montana Constitution was actually more pervasive than the federal Constitution. The Montana Constitution of 1972 retained the strict separation language of the old 1889 constitution, which prohibited appropriations “for religious, charitable, industrial, educational or benevolent purposes to any private corporation not under the control of the state.”236 It is unlikely that such strong language could be watered down to the point that it would permit the use of state funds for parochial schools, whether the aid was extended through direct or indirect funding devices. In support of this supposition, Howard has noted that “Montana’s Constitution appears to establish stricter barriers to denominational schools and colleges than does the First Amendment to the United States Constitution.”237
There are several other examples of such strong constitutional restraints. A notable provision is Article 1, § 19 of the Wyoming Constitution, which simply states that “[n]o money of the state shall ever be given or appropriated to any sectarian or religious society or institution.” The conclusiveness of this provision imposes “strong bars to any state funding for private or sectarian schools.”238 The Oregon Constitution, like that of Missouri, has an anti-establishment provision that has been held to constitute a more restrictive barrier than the First Amendment in preventing the flow of public funds to church schools. Article I, § 5 of the Oregon Constitution states in part: “No money shall be drawn from the Treasury for the benefit of any religious or theological institution. . . .” The Supreme Court of Oregon has interpreted this provision as precluding the use of public funds to provide textbooks to students in parochial schools.239 In so holding, the court rejected the “child benefit” theory and found that textbooks, being essential to the educational process and not an incidental, were an asset to the religious institution. In 1991, proponents of parochial schools in Oregon placed on the ballot a proposed amendment to Article I, § 5 that would have allowed tax credits for parents sending their children to parochial schools. The plan called for tax credits of up to $2,500 per child for tuition and costs incurred for private schools or for home school education. This effort was roundly defeated by the Oregon voters in the spring of 1991. The State of Washington has perhaps one of the strongest provisions for guaranteeing religious liberty and separation of church and state. The Washington Supreme Court rejected the reasoning of the U.S. Supreme Court in Everson as to a precedent applicable to the provisions of the Washington Constitution. The “independent vitality” of that state’s constitution appears to more strictly adhere to more basic principles of religious freedom than does the First Amendment. Therefore, the anti-establishment provisions of state constitutions may be strong or weak, effectual or ineffectual, depending on their wording and the interpretations of the state supreme courts. Whether the state supreme courts, though, will follow new U.S. Supreme Court precedents such
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Independent Vitality of State Constitutions
as Agostini v. Felton in a diminution of religious liberty and an erosion of the wall of separation remains to be seen.
State Constitution’s “Compelled Support Clause” Renders Tuition Reimbursement to Sectarian Schools Unconstitutional
Chittenden Town School District v. Department of Education Supreme Court of Vermont, 1999. 169 Vt. 310, 738 A.2d 539.
DOOLEY, J. . . . Today we confront a question . . . whether the tuition reimbursement scheme transgresses the Compelled Support Clause of the Vermont Constitution, Vt. Const. Ch. I., Art. 3, which speaks not to establishment of religion but to state support of religious worship. . . . We focus on the Vermont Constitution and conclude that a school district violates Chapter I, Article 3 when it reimburses tuition for a sectarian school under § 822 in the absence of adequate safeguards against the use of such funds for religious worship. Because of the absence of such safeguards in this case, we affirm the judgment of the superior court. The case was submitted to the superior court on stipulated facts, which we summarize in relevant part. Plaintiff Chittenden Town School District has ninety-five students in grades nine through twelve. It does not maintain a high school for the education of these secondary students. Instead, it pays tuition to public high schools or approved independent schools for this purpose, as explicitly authorized by 16 V.S.A. § 822. Pursuant to §§ 822(a)(1) and 824(b), parents of the students may select an approved school to which to send their children. Until the 1996–97 school year, the Chittenden School Board authorized tuition payments only for public high schools or approved secondary schools that it found to be nonsectarian. In the 1995–96 school year, it paid tuition for seventy-five secondary school students. Of these, seventy-two attended one of the five public
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high schools operating in Rutland County, and three attended approved private secondary schools. In December of 1995, the Chittenden School Board adopted a new secondary education tuition-reimbursement policy that would allow tuition to be paid to sectarian schools. One approved independent sectarian secondary school operates in Rutland County. That school is Mount Saint Joseph Academy (MSJ), a parochial high school located in the City of Rutland. MSJ is owned and operated by the Sisters of Saint Joseph, under the authority of the Roman Catholic Diocese of Burlington. MSJ is an institution in which the secular and sectarian aspects of its educational program are intertwined. Its statement of philosophy reveals that its academic program incorporates religious and moral education through a broad range of curricular and co-curricular activities and that “[w]e believe that learning occurs in an atmosphere where faith and community are emphasized and overtly practiced. . . .” Consistent with its educational philosophy, MSJ requires instruction in theology, constituting four of twenty-three credits required for graduation. The four theology courses are entitled “Salvation History,” “Sacraments,” “Ethics” and “Commitment.” . . . Among the expected outcomes of the theology education and the religious life activities of the school are that the students will “witness a sense of Catholic identity” and will “continue to proclaim the Gospel of Jesus and work towards fulfilling the kingdom through service/ ministry/action.” The MSJ school day begins with a prayer, to which all students are required to give quiet attention. Once a month, the entire school attends a celebration of the Roman Catholic mass led by a priest. Non-Catholics must attend, but are not required to participate in the sacrament. All students must attend annual spiritual retreats, which include prayers and a mass. All students must attend a twice-annual celebration of the sacrament of reconciliation; participation in the sacrament is not required. MSJ faculty is required to adhere to Catholic doctrine in their teachings and must demonstrate and exemplify the values of the Catholic faith by
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striving to live and teach the Gospel messages of Jesus. The principal of MSJ is a Roman Catholic nun. Of the twenty-seven teachers, four are nuns or priests. Although we have been required by the issue before us to examine the sectarian aspects of education at MSJ, we emphasize that the record indicates that MSJ is a very good high school. Ninety-one percent of MSJ’s class of 1996 went on to college. In recent years, the percentage has been 83% to 93%. Of the 206 students enrolled in MSJ for the 1996–97 school year, 164 were Roman Catholics and the remainder were of different faiths. In May 1996, the Chittenden School Board specifically approved payment of tuition to MSJ. Fifteen Chittenden students were enrolled in MSJ for the 1996–97 school year. The Chittenden Town School District funds secondary education through a combination of revenues raised by the local property tax and aid to education received from the State of Vermont. For the 1996–97 school year, it intended to use $39,000 in public funds to pay tuition at MSJ. MSJ has a three-tiered tuition policy, charging $3,000 annually to non-Catholics; $2,775 to Catholics who reside in the Diocese, but not in the City of Rutland; and $2,525 to Catholics who reside in the City of Rutland. MSJ projected its per-pupil cost of education at $5,021 for 1996–97. The Diocese and local Rutland parishes would make up the bulk of the difference. When the Chittenden School Board voted to allow tuition reimbursement to MSJ, the Commissioner of Education terminated state aid to education to the district. The Chittenden Town School District then brought this action against the Commissioner and the Vermont Department of Education, asserting, among other claims, that tuition reimbursement to MSJ was constitutional and seeking an order to restore state-aid funding. Defendants counterclaimed that the Chittenden decision to make tuition payments to MSJ violated the Establishment Clause of the First Amendment to the United States Constitution and Chapter I, Article 3 of the Vermont Constitution. They also sought an injunction. . . . On June 27, 1997, the superior court issued its opinion and order concluding that “tuition payments from a school district to pervasively sectarian high schools, or the parents of the
children who attend, would have the effect of a direct subsidy to religious schools in violation of the United States and Vermont Constitutions.” . . . Before reaching the constitutional questions, we find it helpful to look at the controlling statutes. The basic scheme is quite simple. Since the Chittenden Town School District provides elementary education, it is required to provide secondary education. See 16 V.S.A. § 822(a). It has a number of options in meeting this obligation. The two main ones are to maintain a public high school or to pay tuition “to an approved public or independent high school, to be selected by the parents or guardians of the pupil, within or without the state.” Chittenden has taken the second of these options. The approval for public or independent high schools is given by the Vermont Board of Education. . . . The sending district must pay the full tuition rate of any independent school meeting public school standards. . . . Although the term “tuition” is not defined, we see nothing in the statutory scheme to suggest that it is other than the rate charged by the approved independent school for whatever educational services it delivers. Thus, the cost of purely religious education can be included in the tuition payment made to a sectarian school. We do not mean to suggest that our present inquiry implicates the ability of a . . . sectarian school to charge tuition for religious education, rather than requiring that the cost of such education be borne by voluntary donations of religious adherents. This is a policy choice of the religious school. However, for reasons discussed fully below, we deem it highly relevant that, in the absence of any kind of regulatory process, the tuition payment system adopted by the Chittenden Town School District can, and presumably will, expend public money on religious education as long as some undetermined percentage of the money funds education on secular subjects required in the state’s minimum course of study. The stipulated facts indicate that this is happening at MSJ. Apparently, the public and private sources of revenue are commingled so that each supports religious education. . . . Defendants argue that the Chittenden tuition payment policy violates both the federal and Vermont constitutions, and the superior court accepted both claims. In Swart, this Court
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Independent Vitality of State Constitutions
chose to analyze a virtually identical case under the First Amendment because the federal law was clear, and the Court was uncertain of the outcome under Chapter I, Article 3 of the Vermont Constitution. The federal law has become less clear. See, e.g., Agostini v. Felton. We are the final judicial interpreters of the Vermont Constitution, and our fundamental charter is a freestanding document. . . . Accordingly, we decide this case based solely on the Vermont Constitution and, since it is dispositive, need not consider whether the Establishment Clause of the First Amendment would also prohibit the tuition reimbursement policy at issue here. . . . Defendants argue that Chittenden’s tuition policy violates the Compelled Support Clause of Article 3. That is, the policy forces dissenting Chittenden and other Vermont taxpayers to “support [a] place of worship . . . contrary to the dictates of conscience.” Our decision must, therefore, turn on the meaning of the quoted language. . . . In performing this analysis, we turn first to the text of Article 3. The relevant language provides that “no person ought to, or of right can be compelled to . . . support any place of worship . . . contrary to the dictates of conscience.” Vt. Const. Ch. I, Art. 3. . . . The disagreements come in two places. First, plaintiffs argue that a school, however sectarian, is not a place of worship as that term is used in Article 3. Second, they assert that the intent behind the language was to prohibit state-sponsored religious institutions—that is, a state establishment of religion—and there is no state sponsorship here because the parents, not the school district, chose the religious school. At the outset, we can narrow the first disagreement about the meaning of Article 3. We do not read defendants as claiming that any payment of public money to a religious school, for whatever reason, necessarily offends Article 3 because it supports a place of worship. As narrowed, plaintiffs’ claim is that religious education is not religious worship within the meaning of Article 3. To reinforce this point, they note that the Vermont Constitution contains no specific provision on support of sectarian education, a subject we address in a later section of this opinion. Plaintiffs also draw our attention to Chapter II, § 68, the section on public education, which provides:
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All religious societies, or bodies of people that may be united or incorporated for the advancement of religion and learning, or for other pious and charitable purposes, shall be encouraged and protected in the enjoyment of the privileges, immunities, and estates, which they in justice ought to enjoy, under such regulations as the general assembly of this state shall direct.
Vt. Const. ch. II, § 68. Plaintiffs see in this language an intent to aid religious education, which can occur through financial support. Defendants necessarily take the opposite side of the issue. We do not try to resolve this disagreement on the language alone and consider it in later sections of the opinion. The second disagreement over the meaning of the text is central to the relationship between Article 3 and the First Amendment. The First Amendment prohibits any law “respecting an establishment of religion.” U.S. Const. Amend. I. Plaintiffs argue that Article 3 expresses the same policy aimed at the same governmental wrong. Thus, they assert that as long as government does not take sides among religions, it may compel support for religious activities. Here, government is not endorsing any religion because the parents have free choice of religious or secular institutions. Again, defendants disagree with this interpretation, and we do not attempt to resolve it on the language alone. We emphasize, however, that the text appears to be inconsistent with plaintiffs’ position. Rather than prohibiting compelled support of a particular or stateselected place of worship, it prohibits compelled support of “any place of worship.” Vt. Const. Ch. I, Art. 3. . . . Even if we were prepared to say that the phrase “support any place of worship” has a plain meaning for the case before us, if it were included in a modern statute, we cannot say that it has such a meaning as placed in Article 3. We must proceed to other evidence of the meaning of the Article. One of our most useful tools to determine the meaning of a constitutional provision is an understanding of its historical context, and we have often relied upon history to illuminate the meaning of our constitution. . . . The . . . relevant element of the historical record is the history of the “Virginia Bill for Religious Liberty,” as enacted in 1785 based on
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the draft of Thomas Jefferson. Because of its author and the primary advocacy for it by James Madison, the Virginia law became an important building block for the First Amendment to the United States Constitution and the interpretation of that amendment by the United States Supreme Court. We also find this law, and its history, relevant to our interpretation of Article 3. . . . The language of the Virginia law relevant to the controversy before us states that a man shall not be “compelled to . . . support any religious worship, place or ministry whatsoever.” The preamble describes the policy of the language: “that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors, is sinful and tyrannical.” . . . The Virginia law was passed in response to a bill “Establishing a Provision for Teachers of the Christian Religion,” which almost passed in the years before the Jefferson law was enacted. It provided for taxpayer support of “learned teachers” of “Christian knowledge” in order “to correct the morals of men, restrain their vices, and preserve the peace of society.” Each owner of property on which the tax was levied would specify the “society of Christians” to which the owner ’s tax money would be paid. If the taxpayer failed to specify the beneficiary, that money would be placed in the public treasury to be expended for the encouragement of seminaries of learning in the county. In his “Memorial and Remonstrance” on the bill, James Madison described its provisions as “a dangerous abuse of power.” Madison’s main disagreement with the bill was because man’s duty is “to render to the Creator such homage, and such only, as he believes to be acceptable to him.” He argued that it discriminated against those who professed a non-Christian religion or no religion: Whilst we assert for ourselves a freedom to embrace, to profess and to observe the Religion which we believe to be of divine origin, we cannot deny an equal freedom to those whose minds have not yet yielded to the evidence which has convinced us. If this freedom be abused, it is an offence against God, not against man: To God, therefore, not to men, must an account of it be rendered.
Jefferson was later to describe the Virginia law as creating “a wall of separation between church and State.” Reynolds v. United States, 98 U.S. 145, 164, 25 L. Ed. 244 (1878). What is instructive here is that the language used to create the wall is essentially the same as that in Article 3 of our constitution. . . . Moreover, the Virginia law was enacted in response to a plan that bears some similarities to that before us. It applied specifically to religious teachers, and although it required tax financing of education, it gave choice in the method of its implementation. Christians could choose their beneficiary, and any taxpayer could choose to designate the money to the seminary education system of the time, rather than to a religious order. Despite the choice feature, the Virginia law responded that compelling “a man to furnish contributions of money for the propagation of opinion which he disbelieves and abhors, is sinful and tyrannical.” We believe that the Virginia experience undercuts plaintiffs’ position that the intent of Article 3 was to cover religious worship, but not religious education. The Virginia controversy was about religious education, and Madison saw no line between it and religious worship. Language virtually identical to Article 3 was adopted to prohibit compelled support of religious education. . . . Public education in Vermont may have been only an ideal when our first constitution was adopted, but it quickly became a reality when state and local government could deal with matters other than the security of the inhabitants. We see no reason why, from its first adoption, Article 3 would not be seen to cover all forms of religious worship even as part of religious education. As indicated above, the Virginia religious-support controversy arose over what was being labeled as religious education. We believe that no artificial line between religious worship and religious education emerged in Vermont. . . . In conclusion, we return to the Article 3 textual issues that divide the parties. In view of the history, as we have outlined above, and the decisions from other jurisdictions, we see no way to separate religious instruction from religious worship. The limited record we have
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Independent Vitality of State Constitutions
before us indicates that there is no line between these concepts. Nor are we persuaded that the constitutional drafters authorized public financing of religious education in Chapter II, § 68. The specification that such education be “encouraged and protected” does not extend to public financing in light of the prohibition of Article 3. . . . Thus, we conclude that the Chittenden School District tuition-payment system, with no restrictions on funding religious education, violates Chapter I, Article 3. . . . By prohibiting compelled taxpayer support of religious worship, Chapter I, Article 3 of the Vermont Constitution renders unconstitutional the Chittenden Town School District tuitionpayment policy to the extent that it authorizes tuition reimbursement to sectarian schools without appropriate restrictions. This application of state constitutional law does not implicate the Free Exercise Clause of the First Amendment. Because we conclude that the superior court correctly entered summary judgment in favor of defendants, their cross-appeal and plaintiffs’ motion to dismiss it are both moot and need not be considered. Affirmed.
CASE NOTES 1. Wisconsin has a Compelled Support Clause in its Constitution, Act I, § 18, that is similar to that in Vermont’s constitution; however, the Wisconsin Supreme Court has not viewed this provision as having “independent vitality” as to give it greater strength than the Establishment Clause of the U.S. Constitution. The Wisconsin Supreme Court has held that its own Compelled Support Clause is to be interpreted as meaning the same as the First Amendment’s Establishment Clause, and, in that sense, does not have independent vitality. Jackson v. Benson, 218 Wis. 2d 835, 578 N.W.2d 602 (1998). 2. On the other hand, the Compelled Support Clause of the Kentucky Constitution requiring that “no part of the common school fund shall ever be used in aid of or for the use of benefit of a sectarian or denominational school,” has been held by that state’s highest court to have “independent vitality,” preventing public
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funds from flowing to parochial schools. Williams v. Board of Trustees of Stanton Common School District, 173 Ky. 708, 191 S.W. 507 (1917).
Oregon Law Providing Textbooks to Parochial Schools Cannot Be Justified on Child Benefit Theory
Dickman v. School District No. 62 C Supreme Court of Oregon, 1961. 232 Or. 238, 366 P.2d 533, cert. denied, 93 A.L.R.2d 969.
O’CONNELL, J. This is a suit in equity brought by plaintiff taxpayers against School District No. 62 C, its board and clerk, to enjoin defendants from supplying textbooks without charge for the use of pupils enrolled in St. John’s The Apostle School, a parochial school maintained and operated by the Catholic Church. Plaintiffs also seek a judicial declaration that the so-called free textbook statute (ORS 337.150), under which distribution was made to the St. John’s school and other parochial schools, does not authorize defendants to supply textbooks free of charge to church or parochial schools, or if the statute is so construed that it be declared unconstitutional. . . . For a period of several years the defendant district has furnished free textbooks for the use of the pupils of St. John’s school. In a period of three school years these books have cost the district approximately $4,000. The books were purchased by the district from money in its General Fund, a part of which was derived from taxes levied upon real property in the district, including real property owned by plaintiffs. . . . The district retains title to the books, a matter of little practical significance however, because the books are not ordinarily retrieved by the district. Textbooks furnished for the use of parochial school students do not differ from those delivered to public schools. A school is not entitled to receive free textbooks unless it complies with standards established by the Oregon statutes as
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implemented by administrative regulation. The St. John’s school met these standards. The evidence establishes, and the trial judge found, that the purpose of the Catholic church in operating in the St. John’s school and other similar schools under this supervision is to permeate the entire educational process with the precepts of the Catholic religion. . . . . . . The principal issue presented to us is whether the expenditure of public funds by the defendant school district for the purpose of furnishing textbooks free of charge to pupils of a parochial school is within these constitutional prohibitions. We have concluded that the expenditure authorized by ORS 337.150 is within the proscription of Article I, § 5 of the Oregon Constitution. . . . Nor is it necessary to consider whether Article VIII, § 2 of the Oregon Constitution has been violated. Article I, § 5 prohibiting the use of public monies “for the benefit of any religious or theological institution,” was designed to keep separate the functions of state and church and to prevent the influence of one upon the other. In this respect our constitution follows the general pattern of other state constitutions and may be regarded as expressing, in more specific terms, the policy of the First Amendment as it has been explained in the Everson case. The historical setting in which constitutional provisions such as Article I, § 5 were written and the factors which prompted their adoption have been thoroughly explained elsewhere; it is not necessary, therefore, to restate those observations here. We need only say that we regard the separation of church and state no less important today than it was at the time Article I, § 5 and its counterpart in other constitutions were adopted. The general policy is clear. Our problem is to determine whether that policy is violated by the distribution of free textbooks to parochial schools under ORS 337.150. . . . Defendants’ principal argument in support of the statute is that the expenditure of public funds for the purpose of furnishing books to pupils of parochial and public schools benefits the pupils who receive these books and not the schools themselves. . . . This so-called “child benefit theory” has been applied in other cases in which the expenditure of public funds is made for the purpose of meeting the educational needs of pupils, including those
attending parochial schools. The difficulty with this theory is, however, that unless it is qualified in some way, it can be used to justify the expenditure of public funds for every educational purpose, because all educational aids are of benefit to the pupil. . . . It is argued that the aid to school children is for a public purpose because the compulsory school law compels all children to attend school and that the state may, therefore, make expenditures to further compliance. But this begs the basic question—the state may not compel compliance through the device of furnishing aid to religious schools if that aid is in violation of the constitution. Moreover, the state does not compel pupils to attend parochial schools. . . . We recognize that whether an expenditure is an aid to a religious institution in its religious function or in some other capacity is a question of degree. But it seems clear that the line must be drawn to include within the constitutional proscription the furnishing of textbooks to pupils of parochial schools. This conclusion is compelled because such books are an integral part of the educational process. As we have already pointed out, the teaching of the precepts of Catholicism is an inseparable part of the educational process in the St. John’s school. Considering the purpose of Article I, § 5, we are unable to see any substantial distinction between the furnishing of textbooks and the furnishing of blackboards, desks, laboratory instruments, or other equipment clearly necessary to the operation of the school. In comparing these various essential tools we agree with the dissenting opinion in Everson v. Board of Education of Ewing Twp. . . . that there is no way of “satisfactorily distinguishing one item of expense from another in the long process of child education.” It is argued that the strict notions of separation in vogue at the time of the adoption of our constitutional provisions no longer exist and that these provisions should be interpreted to reflect this change in attitude. Conceding that such change has occurred, there are still important considerations warranting the resolve that the wall of separation between church and state “must be kept high and impregnable.” Everson v. Board of Education, supra. . . . These considerations convince us that the wall of separation in this state must also be kept “high and impregnable” to meet the demands of Article I, § 5. . . .
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Supreme Court’s Secularization of Public Schools: A Bifurcated Standard
The trial judge was of the opinion that the expenditures in question constituted a violation of the constitutional principle of separation of church and state, but he concluded that he was bound by Everson v. Board of Education. . . . A decision of the Supreme Court of the United States holding that certain legislation is not in violation of the federal constitution is not an adjudication of the constitutionality of the legislation under a state constitution. In such a case it is not only within the power of the state courts, it is their duty to decide whether the state constitution has been violated. Our views on the policy or interpretation of a particular constitutional provision do not always coincide with those of the Supreme Court of the United States. As we have indicated, Everson v. Board of Education, supra, is distinguishable from the case at bar. Even if it were not, our conclusion would be the same. The judgment is reversed. The trial court is directed to enter a decree in accordance with the prayer in plaintiffs’ complaint.
CASE NOTE The Oklahoma Supreme Court has held that Article II, § 5 of that state’s constitution prevents use of public funds to transport parochial school students to school. Gurney v. Ferguson, 190 Okla. 254, 122 P.2d 1002 (1941); Board of Education v. Antone, 384 P.2d 911 (Okla. 1963). In Antone, the court wrote: The law leaves to every man the right to entertain such religious views as appeal to his individual conscience, and to provide for the religious instruction and training of his own children to the extent and in the manner he deems essential or desirable. When he chooses to seek for them educational facilities which combine secular and religious instruction, he is faced with the necessity of assuming the financial burden which that choice entails.
In specifically rejecting the Everson precedent as applicable to Oklahoma, the Oklahoma Supreme Court pointed out that Everson is merely an interpretation of federal law and does not negate the more restrictive provisions of the Oklahoma Constitution. The Oklahoma Supreme Court said further: As we pointed out in Gurney v. Ferguson . . . , if the cost of school buses and the operation and maintenance thereof is in aid of the public schools, then it would seem to necessarily follow that when
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pupils of parochial schools are transported by them, such service is in aid of that school. Any such aid or benefit, either directly or indirectly, is expressly prohibited by the above quoted provision of the constitution of Oklahoma. Antone, 384 P.2d 911 (Okla. 1963); the provision referred to is Article II, § 5 of the Oklahoma Constitution.
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Supreme Court’s Secularization of Public Schools: A Bifurcated Standard
RELEASED TIME FOR RELIGIOUS INSTRUCTION In spite of the fact that U.S. Supreme Court decisions today permit public funding of clerical schools, even those that are “pervasively sectarian,” the Court is now and has been very strict in enforcing the secularization of public schools. In this, the Supreme Court appears to have established a bifurcated standard of separation by which one branch of cases, represented by Abington Township,240 Stone,241 Weisman,242 and Santa Fe,243 are strong on secularizing the public schools, whereas another branch of cases, represented by Mueller,244 Zobrest,245 Agostini,246 Helms,247 and Zelman,248 allow almost unlimited constitutional leeway for state and federal governments to provide public funds to sectarian schools. The effort to secularize the public schools is a long-running melodrama that has produced much antipathy toward the public schools. As a plethora of Supreme Court decisions indicate, from McCollum in 1948 through Weisman in 1992 and Santa Fe in 2000, attempts at incursions into public schools by religious groups are an unceasing phenomenon. The struggle to prevent public schools from being controlled by any church or religious sect has been the most difficult issue to face public schools since the idea of public schools was conceived in Europe in the eighteenth century and came to fruition in the United States in the nineteenth century. The material in the following pages discusses the many and continuing attempts by religious sects to conduct activities in the public schools in an effort to inculcate their own religious beliefs. The list of attempts to reduce the public schools to sectarian educational enclaves reflecting the
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majority beliefs of a locality or state is virtually endless, and many of the episodes have been memorialized in U.S. Supreme Court precedents. The discussion and cases following seek to capture the essence of the many and multifaceted innovations used by religious sects to enter the public schools and to inculcate religion. Many of the cases address the conduct of prayer and Bible reading and various issues regarding the protection of religious liberty in the public schools. More than half the states have, at some point, permitted or required prayer and Bible reading in public schools. Prior to 1962, at least 12 states and the District of Columbia required Bible reading. The typical attitude of the courts was that the Bible and general prayer were not sectarian in nature and their use did not violate constitutional religious guarantees.249 That the Bible was not sectarian was even reflected in statute; the North Dakota legislature had observed that [T]he Bible shall not be deemed a sectarian book. It shall not be excluded from any public school. It may be the option of the teacher to read in school without sectarian comment, not to exceed ten minutes daily. No pupil shall be required to read it nor be present in the schoolroom during the reading thereof contrary to the wishes of his parents or guardian or other person having him in charge.250
The practice of releasing public schoolchildren during regular school hours for religious instruction first began in the United States in Gary, Indiana, in 1914. Since then, the Supreme Court has had before it two cases involving release time. The first was the McCollum case in 1948,251 in which pupils were released to attend religious instruction in the classrooms of the public school building. Students who did not want to participate were not released but were required to leave their classrooms and go to another part of the building to pursue their secular studies. The Supreme Court held that this “release time” program violated the First Amendment of the Constitution. In 1952, the Supreme Court was once again called upon to test the constitutionality of “release time.” In this case, a New York statute permitted pupils to leave the school building and grounds to attend religious centers for religious instruction.252 Students who did not wish to participate in such services stayed in their
classrooms, and no supervision or approval of their activities was required. The Supreme Court found that this statute did not violate the doctrine of separation of church and state. The Court pointed out that although the Constitution forbids the government to finance religious groups and promote religious instruction, the First Amendment does not require governmental hostility toward religion. From this decision, it is clear that the Supreme Court does not prohibit some cooperation between schools and churches, but the nature and degree of the cooperation are important; if they exceed certain reasonable limitations, the relationship will violate the Constitution.
Released Time for Religious Instruction on Public School Premises Is Unconstitutional
Illinois ex rel. McCollum v. Board of Education of School District No. 71, Champaign County, Illinois Supreme Court of the United States, 1948. 333 U.S. 203, 68 S. Ct. 461.
Mr. Justice BLACK delivered the opinion of the Court. This case related to the power of a state to utilize its tax-supported public school system in aid of religious instruction insofar as that power may be restricted by the First and Fourteenth Amendments to the Federal Constitution. . . . Appellant’s petition for mandamus alleged that religious teachers, employed by private religious groups, were permitted to come weekly into the school buildings during the regular hours set apart for secular teaching, and then and there for a period of thirty minutes substitute their religious teaching for the secular education provided under the compulsory education law. The petitioner charged that this joint public-schoolreligious-group program violated the First and Fourteenth Amendments to the United States Constitution. The prayer of her petition was that the Board of Education be ordered to “adopt and
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Supreme Court’s Secularization of Public Schools: A Bifurcated Standard
enforce rules and regulations prohibiting all instruction in and teaching of all religious education in all public schools in Champaign District Number 71 . . . and in all public school houses and buildings in said district when occupied by public schools.” . . . Although there are disputes between the parties as to various inferences that may or may not properly be drawn from the evidence concerning the religious program, the following facts are shown by the record without dispute. In 1940 interested members of the Jewish, Roman Catholic, and a few of the Protestant faiths formed a voluntary association called the Champaign Council on Religious Education. They obtained permission from the Board of Education to offer classes in religious instruction to public school pupils in grades four to nine inclusive. Classes were made up of pupils whose parents signed printed cards requesting that their children be permitted to attend; they were held weekly, thirty minutes for the lower grades, forty-five minutes for the higher. The council employed the religious teachers at no expense to the school authorities, but the instructors were subject to the approval and supervision of the superintendent of schools. The classes were taught in three separate religious groups by Protestant teachers, Catholic priests, and a Jewish rabbi, although for the past several years there have apparently been no classes instructed in the Jewish religion. Classes were conducted in the regular classrooms of the school building. Students who did not choose to take the religious instruction were not released from public school duties; they were required to leave their classrooms and go to some other place in the school building for pursuit of their secular studies. On the other hand, students who were released from secular study for the religious instructions were required to be present at the religious classes. Reports of their presence or absence were to be made to their secular teachers. The foregoing facts, without reference to others that appear in the record, show the use of tax-supported property for religious instruction and the close cooperation between the school authorities and the religious council in promoting religious education. The operation of the state’s compulsory education system thus assists and is integrated with the program of religious
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instruction carried on by separate religious sects. Pupils compelled by law to go to school for secular education are released in part from their legal duty upon the condition that they attend the religious classes. This is beyond all question a utilization of the tax-established and tax-supported public school system to aid religious groups to spread their faith. And it falls squarely under the ban of the First Amendment (made applicable to the States by the Fourteenth) as we interpreted it in Everson v. Board of Education, 330 U.S. 1, 67 S. Ct. 504. . . . To hold that a state cannot consistently with the First and Fourteenth Amendments utilize its public school system to aid any or all religious faiths or sects in the dissemination of their doctrines and ideals does not, as counsel urge, manifest a governmental hostility to religion or religious teachings. A manifestation of such hostility would be at war with our national tradition as embodied in the First Amendment’s guaranty of the free exercise of religion. For the First Amendment rests upon the premise that both religion and government can best work to achieve their lofty aims if each is left free from the other within its respective sphere. Or, as we said in the Everson case, the First Amendment has erected a wall between Church and State which must be kept high and impregnable. Here not only is the state’s tax supported public school buildings used for the dissemination of religious doctrines. The State also affords sectarian groups an invaluable aid in that it helps to provide pupils for their religious classes through the use of the state’s compulsory public school machinery. This is not separation of Church and State. The cause is reversed and remanded to the State Supreme Court for proceedings not inconsistent with this opinion. Reversed and remanded.
CASE NOTE Released Time. Courts upholding the discretionary power of boards of education to provide released time programs: People ex rel. Lewis v. Graves, 245 N.Y. 195, 156 N.E. 663 (1927); People ex rel. Latimer v. Board of Education of City of Chicago, 394 Ill. 228, 68 N.E.2d 305 (1946); Dilger v. School District 24 CJ, 222 Or. 108, 352 P.2d 564 (1960). Some decisions indicated parents had the
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right to have children excused or released from school for religious purposes: Lewis v. Spaulding, 193 Misc. 66, 85 N.Y.S.2d 682 (1948), appeal dismissed, 299 N.Y. 564, 85 N.E.2d 791 (1949); Gordon v. Board of Education of City of Los Angeles, 78 Cal. App. 2d 464, 178 P.2d 488 (1947); Perry v. School District No. 81, 54 Wash. 2d 886, 344 P.2d 1036 (1959).
Released Time for Public School Students to Attend Religious Classes Off Public School Grounds Is Constitutional
Zorach v. Clauson Supreme Court of the United States, 1952. 343 U.S. 306, 72 S. Ct. 679.
Mr. Justice DOUGLAS delivered the opinion of the Court. New York City has a program which permits its public schools to release students during the school day so that they may leave the school buildings and school grounds and go to religious centers for religious instruction or devotional exercises. A student is released on written request of his parents. Those not released stay in the classrooms. The churches make weekly reports to the schools, sending a list of children who have been released from public school but who have not reported for religious instruction. This “released time” program involves neither religious instruction in public school classrooms nor the expenditure of public funds. All costs, including the application blanks, are paid for by the religious organizations. The case is therefore unlike McCollum v. Board of Education. . . . Appellants, who are taxpayers and residents of New York City and whose children attend its public schools, challenge the present law, contending it is in essence not different from the one involved in the McCollum case. . . . The New York Court of Appeals sustained the law against this claim of unconstitutionality. . . . It takes obtuse reasoning to inject any issue of the “free exercise” of religion into the present
case. No one is forced to go to the religious classroom and no religious exercise or instruction is brought to the classrooms of the public schools. A student need not take religious instruction. He is left to his own desires as to the manner or time of his religious devotions, if any. There is a suggestion that the system involves the use of coercion to get public school students into religious classrooms. There is no evidence in the record before us that supports that conclusion. The present record indeed tells us that the school authorities are neutral in this regard and do no more than release students whose parents so request. If in fact coercion were used, if it were established that any one or more teachers were using their office to persuade or force students to take the religious instruction, a wholly different case would be presented. Hence we put aside that claim of coercion both as respects the “free exercise” of religion and “an establishment of religion” within the meaning of the First Amendment. . . . We would have to press the concept of separation of Church and State to these extremes to condemn the present law on constitutional grounds. . . . We are a religious people whose institutions presuppose a Supreme Being. We guarantee the freedom to worship as one chooses. We make room for as wide a variety of beliefs and creeds as the spiritual needs of man deem necessary. We sponsor an attitude on the part of government that shows no partiality to any one group and that lets each flourish according to the zeal of its adherents and the appeal of its dogma. When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs. To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups. That would be preferring those who believe in no religion over those who do believe. Government may not finance religious groups nor undertake religious instruction nor blend secular and sectarian education nor use secular institutions to force one or some religion on any person. But we find no constitutional
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Supreme Court’s Secularization of Public Schools: A Bifurcated Standard
requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence. The government must be neutral when it comes to competition between sects. It may not thrust any sect on any person. It may not make a religious observance compulsory. It may not coerce anyone to attend church, to observe a religious holiday, or to take religious instruction. But it can close its doors or suspend its operations as to those who want to repair to their religious sanctuary for worship or instruction. No more than that is undertaken here. . . . In the McCollum case the classrooms were used for religious instruction and the force of the public school was used to promote that instruction. Here, as we have said, the public schools do no more than accommodate their schedules to a program of outside religious instruction. We follow the McCollum case. But we cannot expand it to cover the present released time program unless separation of Church and State means that public institutions can make no adjustments of their schedules to accommodate the religious needs of the people. We cannot read into the Bill of Rights such a philosophy of hostility to religion. Affirmed.
CASE NOTES 1. Shared Time. “Dual enrollment,” or “shared time,” is an arrangement between a public school and a private school by which the shared use of the public school facilities is provided for public school teachers or students. A pupil may be a part-time student in a public school while attending a nonpublic school part time. 2. The U.S. Court of Appeals, Tenth Circuit, has held that provisions in a released time program in which students attended churchrelated seminaries and received public school credit for classes that were “mainly denominational” in content were unconstitutional. Also unconstitutional was a procedure whereby the public school bore the burden of gathering the seminary’s attendance slips. Lanner v. Wimmer, 662 F.2d 1349 (10th Cir. 1981). 3. In a case where parents of a nonpublic school student filed suit to compel a public school district to enroll their child in a band
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class, the Michigan Supreme Court held that (1) nonessential elective courses offered to public school students must be offered to resident nonpublic school students on a sharedtime basis and (2) provision of nonessential elective courses to resident nonpublic school students on a shared-time basis does not violate the Establishment Clause where sharedtime instruction is conducted on public school premises. Snyder v. Charlotte Public School District, 421 Mich. 517, 365 N.W.2d 151 (1984).
VOLITIONAL EXERCISES The voluntariness of the exercise, whether it was Bible reading or prayer, was thought to be an important factor, as evidenced by this type of legislation. Proponents of religious exercise generally relied upon voluntariness, tradition, and the nonsectarian nature of the Bible as the primary defenses of the practice. In 1962, however, the U.S. Supreme Court in Engel v. Vitale253 found a New York Regents prayer unconstitutional, and a year later held both prayer and Bible reading offensive to the First Amendment even though the defendants claimed that the exercises were voluntary and the Bible was nondenominational. This result could probably have been anticipated, since the position established by the Court in McCollum in 1948 indicated that neither the nature of the religious instruction nor the voluntariness of the exercise was a valid defense. In McCollum, Justice Frankfurter stated: That a child is offered an alternative may reduce the constraint; it does not eliminate the operation of influence by the school in matters sacred to conscience and outside the school’s domain. The law of imitation operates, and nonconformity is not an outstanding characteristic of children. The result is an obvious pressure upon children to attend. . . .254
Likewise, the nondenominational nature of a prayer was found to be no defense when the issue was raised in Engel. The Court explained that neither the fact that a prayer is denominationally neutral nor the fact that it is voluntary can serve to free it from the limitations of the Establishment Clause of the First Amendment. According to the Court: The Establishment Clause, unlike the Free Exercise Clause, does not depend upon any showing of direct governmental compulsion and is violated by
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the enactment of laws which establish an official religion whether those laws operate directly to coerce non-observing individuals or not. . . .255
RELIGIOUS EXERCISES The result of Engel, Schempp, and Schempp’s companion case, Murray,256 in 1963 was that religious exercises in the public schools are clearly unconstitutional. Neither state, nor school, nor teacher can hold religious services of any type in the public schools. The Court did point out, however, that the study of the Bible as part of a secular program of education for its literary and historic values would not be unconstitutional. In 1980, the Supreme Court in Stone v. Graham257 followed the precedents of Schempp and Murray in holding unconstitutional a Kentucky statute that required the posting of the Ten Commandments in each public school classroom. In spite of an avowal by the state that the posting was premised on a secular legislative purpose, the High Court said that no legislative recitation of a supposed secular purpose could deny that the Ten Commandments are a sacred text of the Jewish and Christian faiths.258
SILENT MEDITATION During the past few years, a plethora of school prayer cases has been decided by the courts. Legislatures have passed statutes permitting voluntary prayer in public schools, 259 state constitutions have been changed,260 challenges have been made to prayers at football games261 and graduation exercises, and there have been cases in which teachers have maintained that the Free Exercise Clause of the First Amendment permits them to conduct prayers in the classroom.262 The U.S. Supreme Court in 1985 held in Wallace v. Jaffree263 that a period of silence for meditation or voluntary prayer in the public schools is unconstitutional. The Court ruled that the purpose of the legislative enactment was not secular and therefore violated the Establishment Clause. In 1984, the people of West Virginia voted to amend the state constitution, permitting public schools to designate time at the beginning of the day for student contemplation, meditation, or prayer. A federal court ruled that the “prayer amendment” failed all three aspects of the Lemon test and therefore violated the Establishment
Clause of the First Amendment. The court, in referring to the “Prayer Amendment,” said it was “a hoax conceived in political expediency . . . perpetrated upon those sincere citizens of West Virginia who voted for this amendment to the West Virginia Constitution in belief that even if it violated the United States Constitution, ‘majority rule’ would prevail.”264
STUDENT-INITIATED RELIGIOUS SPEECH Religious speech in public schools is not banned by any constitutional provision, and no federal or state court has ever prohibited religious speech unless the exercise of such speech results in the use of the school as a sectarian forum to inculcate religion. Students may speak about religion and engage in religious activities so long as religion is not advanced or sponsored by the public school.265 “What is crucial is that government practices not have the effect of communicating a message of government endorsement or disapproval of religion.”266 State employees cannot prescribe prayer, conduct Bible reading, or lead, participate in, or endorse prayer or religious exercises during curricular or extracurricular events.267 Nothing in the Constitution implies that the public schools should be “cleansed” of all religious expression268; only state-promulgated or endorsed religious expression must be excluded. The government cannot prefer disbelief over belief, or belief over disbelief. “The First Amendment requires only that the State tolerate both, while establishing neither.”269 Genuinely student-initiated religious speech or prayer is valid and must be permitted.270 Religious speech is protected speech, and, of course, the public schools cannot censor its content.271 Yet, even genuinely student-initiated prayer or religious speech may constitute state action and thereby be unconstitutional if the state participates in or supervises, encourages, suggests, or requires the speech.272 Teacher participation in religious speech brings the state into play because teachers are employees and thereby constitute arms of the state. In Mergens273 and Edwards,274 the Supreme Court observed that the Equal Access Act expressly prohibits teacher participation in religious exercises for the very good reason that it avoids the problems of the “students’ emulation of teachers as role models.”275 Thus, religion is
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Supreme Court’s Secularization of Public Schools: A Bifurcated Standard
not foreclosed from schools. Students can pray, read the Bible, and conduct whatever religious rites, rituals, or ceremonies, no matter how conventional, heretical, or pagan, so long as the activity or event is not under the supervision and oversight of the school and it is held at a reasonable time, place, and manner, as pertains to all other student speech in school.276 Supervision or oversight that is merely custodial is not constitutionally objectionable; however, if school supervision or oversight crosses the line and becomes endorsement, encouragement, or participation, then the boundaries of constitutionality have been exceeded.277 The right to engage in student-initiated prayer or religious rites is not, however, without limit. Of course, as aforementioned, reasonable restrictions, in keeping with freedom of speech conditions as to time, place, and manner, can be placed on the student’s religious activities, but importantly a student cannot use the school as a pulpit to conduct missionary work or use the “machinery of the state as a vehicle for converting his audience.”278 Public schools are not required to permit religious proselytizing. As observed in Lee v. Weisman, proselytizing speech is inherently coercive.279
PRAYER AT GRADUATION AND EXTRACURRICULAR ACTIVITIES Insistence by various groups that religious exercises be included in the public schools has assumed many shapes and definitions over the years. Those advocating more religious exercises in the schools maintain that the prohibitions of the Free Exercise Clause apply only to the classroom and do not prevent religious exercises in ancillary activities, such as commencement exercises, baccalaureate services, and related school events. The U.S. Supreme Court has, however, not drawn definitive lines between curricular and extracurricular activities. The Supreme Court in Lee v. Weisman280 invalidated prayer at high school graduation ceremonies conducted by clergy. In this case, the school principal had invited a rabbi to offer prayers at high school graduation. The principal had, as a precaution, provided the rabbi with guidelines to ensure that the prayer was nonsectarian and could be defended as a “public prayer.” The Court rejected the argument that the prayer was a kind
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of “nonsectarian prayer” legitimately conveyed by the state to advance a “civic religion.” The Court said that although some common ground of moral and ethical behavior is highly desirable for any society, for the state to advance a JudeoChristian religious doctrine under the mantle of some preconceived civic religious motivation is clearly in conflict with the religion clauses. The Court explained the intent of the religion clauses of the First Amendment to mean that “religious beliefs and religious expression are too precious to be either proscribed or prescribed by the state.” The Court gave substantial weight to what it called “coercive” pressure, which, though subtle, nevertheless can create great discomfort for students who do not believe in the particular brand of religion that is being visited upon them. Less than a year after Weisman, the U.S. Supreme Court remanded a student-initiated prayer case, Jones v. Clear Creek Independent School District,281 to the Fifth Circuit. The Fifth Circuit distinguished Jones from Weisman because the prayer in Jones was student initiated and student led; therefore, the Fifth Circuit concluded that there was no violation of the Establishment Clause. The rationale was, of course, that voluntary, student-initiated prayers do not imply government endorsement of religion and are therefore not unconstitutional. This reasoning was not convincing to the Supreme Court. As a result of conflicting lower court interpretations, the U.S. Supreme Court took up the issue of student-led, student-initiated prayer at public school extracurricular events in the case of Santa Fe Independent School District v. Doe,282 and in following the rationale in Lee v. Weisman, the Court concluded that such practices were unconstitutional as violative of the Establishment Clause. The Santa Fe school district had tried various devices to circumvent the Supreme Court precedents that eliminate sectarian religious influences in the public schools. The Supreme Court held that a carefully contrived procedure whereby a student elected as the high school student council chaplain would deliver a prayer over the public address system at football games was a veiled attempt to advance the religious beliefs of a heavily conservative Baptist community that controlled the school board
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FIGURE 5.1
Church and State
Religion and Public Schools
policy. The school board policy was challenged by a Catholic and a Mormon student, both alumni, and their mothers. The Court in reinforcing the secularization of the public schools held unequivocally that the school’s defense, maintaining that the policy constituted a secular activity, and not a sectarian one, was a “sham” whose true intent was to perpetuate a previously invalidated school prayer policy. Justice Stevens, writing for the majority of the Court, held that the district’s claim that the invocation was private student speech, and not public speech, belied the fact that the message was religious in nature and was conducted under the auspices of the public school itself. Thus, Santa Fe joins a rather consistent array of precedents that enforce the secularization of the public schools. This no-nonsense position taken by the Court in secularizing the public schools is dramatized by the contrast with the Court’s position in Agostini and Helms, where the Establishment Clause is loosely interpreted to permit public funds to be channeled to sectarian schools, which in turn may use those funds to advance
particular spiritual beliefs. The Establishment Clause appears to be solid on one front but amazingly porous on the other.
State-Enforced Bible Reading and Prayer in the Public Schools Are Unconstitutional
School District of Abington Township v. Schempp and Murray v. Curlett Supreme Court of the United States, 1963. 374 U.S. 203, 83 S. Ct. 1560.
Mr. Justice CLARK delivered the opinion of the Court. Once again we are called upon to consider the scope of the provision of the First Amendment to the United States Constitution which declares that “Congress shall make no law respecting an
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Supreme Court’s Secularization of Public Schools: A Bifurcated Standard
establishment of religion, or prohibiting the free exercise thereof . . . ” These companion cases present the issues in the context of state action requiring that schools begin each day with readings from the Bible. While raising the basic questions under slightly different factual situations, the cases permit of joint treatment. In light of the history of the First Amendment and of our cases interpreting and applying its requirements, we hold that the practices at issue and the laws requiring them are unconstitutional under the Establishment Clause, as applied to the States through the Fourteenth Amendment. The Facts in Each Case: No. 142. The Commonwealth of Pennsylvania by law, 24 Pa. Stat. § 151516, as amended, Pub. Law 1928 (Supp. 1960) Dec. 17, 1959, requires that “At least ten verses from the Holy Bible shall be read, without comment, at the opening of each public school on each school day. Any child shall be excused from such Bible reading, or attending such Bible reading, upon the written request of his parent or guardian.” The Schempp family, husband and wife and two of their three children, brought suit to enjoin enforcement of the statute, contending that their rights under the Fourteenth Amendment to the Constitution of the United States are, have been, and will continue to be violated unless this statute be declared unconstitutional as violative of these provisions of the First Amendment. They sought to enjoin the appellant school district, wherein the Schempp children attend school, and its officers and the Superintendent of Public Instruction of the Commonwealth from continuing to conduct such readings and recitation of the Lord’s Prayer in the public schools of the district pursuant to the statute. . . . No. 119. In 1905 the Board of School Commissioners of Baltimore City adopted a rule pursuant to Art. 77, § 202 of the Annotated Code of Maryland. The rule provided for the holding of opening exercises in the schools of the city, consisting primarily of the “reading, without comment, of a chapter in the Holy Bible and/ or the use of the Lord’s Prayer.” The petitioners, Mrs. Madalyn Murray and her son, William J. Murray III, are both professed atheists. Following unsuccessful attempts to have the respondent school board rescind the rule, this suit was filed for mandamus to compel its rescission and cancellation. It was alleged that William was
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a student in a public school of the city and Mrs. Murray, his mother, was a taxpayer therein; that it was the practice under the rule to have a reading on each school morning from the King James version of the Bible; that at petitioners’ insistence the rule was amended to permit children to be excused from the exercise on request of the parent and that William had been excused pursuant thereto; that nevertheless the rule as amended was in violation of the petitioners’ rights “to freedom of religion under the First and Fourteenth Amendments” and in violation of “the principle of separation between church and state, contained therein.” The rules, as amended, provide as follows: Opening Exercises. Each school, either collectively or in classes, shall be opened by the reading, without comment, of a chapter in the Holy Bible and/or the use of the Lord’s Prayer. The Douay version may be used by those pupils who prefer it. Appropriate patriotic exercises should be held as a part of the general opening exercise of the school or class. Any child shall be excused from participating in the opening exercises or from attending the opening exercises upon the written request of his parent or guardian. Applying the Establishment Clause principles to the cases at bar we find that the States are requiring the selection and reading at the opening of the school day of verses from the Holy Bible and the recitation of the Lord’s Prayer by the students in unison. These exercises are prescribed as part of the curricular activities of students who are required by law to attend school. They are held in the school buildings under the supervision and with the participation of teachers employed in those schools. . . . The trial court in No. 142 has found that such an opening exercise is a religious ceremony and was intended by the State to be so. We agree with the trial court’s finding as to the religious character of the exercises. Given that finding, the exercises and the law requiring them are in violation of the Establishment Clause. . . . [I]n No. 119, and the State contends (as does the State in No. 142) that the program is an effort to extend its benefits to all public school children without regard to their religious belief. Included within its secular purposes, it says, are the promotion of moral values, the contradiction to the materialistic trends of our times, the
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perpetuation of our institutions and the teaching of literature. The case came up on . . . a petition which alleged that the uniform practice under the rule had been to read from the King James version of the Bible and that the exercise was sectarian. The short answer, therefore, is that the religious character of the exercise was admitted by the State. . . . The conclusion follows that in both cases the laws require religious exercises and such exercises are being conducted in direct violation of the rights of the appellees and petitioners. Nor are these required exercises mitigated by the fact that individual students may absent themselves upon parental request, for that fact furnishes no defense to a claim of unconstitutionality under the Establishment Clause. . . . Further, it is no defense to urge that the religious practices here may be relatively minor encroachments on the First Amendment. The breach of neutrality that is today a trickling stream may all too soon become a raging torrent and, in the words of Madison, “it is proper to take alarm at the first experiment on our liberties.” Memorial and Remonstrance against Religious Assessments. . . . It is insisted that unless these religious exercises are permitted a “religion of secularism” is established in the schools. We agree of course that the State may not establish a “religion of secularism” in the sense of affirmatively opposing or showing hostility to religion, thus “preferring those who believe in no religion over those who do believe.” Zorach v. Clauson. . . . We do not agree, however, that this decision in any sense has that effect. In addition, it might well be said that one’s education is not complete without a study of comparative religion or the history of religion and its relationship to the advancement of civilization. It certainly may be said that the Bible is worthy of study for its literary and historic qualities. Nothing we have said here indicates that such study of the Bible or of religion, when presented objectively, as part of a secular program of education, may not be affected consistently with the First Amendment. But the exercises here do not fall into those categories. They are religious exercises, required by the States in violation of the command of the First Amendment that the Government maintain strict neutrality, neither aiding nor opposing religion.
Finally, we cannot accept that the concept of neutrality, which does not permit a State to require a religious exercise even with the consent of the majority of those affected, collides with the majority’s right to free exercise of religion. While the Free Exercise Clause clearly prohibits the use of state action to deny the rights of free exercise to anyone, it has never meant that a majority could use the machinery of the State to practice its beliefs. . . . The place of religion in our society is an exalted one, achieved through a long tradition of reliance on the home, the church and the inviolable citadel of the individual heart and mind. We have come to recognize through bitter experience that it is not within the power of government to invade that citadel, whether its purpose or effect be to aid or oppose, to advance or retard. In the relationship between man and religion, the State is firmly committed to a position of neutrality. Though the application of that rule requires interpretation of a delicate sort, the rule itself is clearly and concisely stated in the words of the First Amendment. Applying that rule to the facts of these cases, we affirm the judgment in No. 142. In No. 119, the judgment is reversed and the cause remanded to the Maryland Court of Appeals for further proceedings consistent with this opinion. It is so ordered. Judgment in No. 142 affirmed; judgment in No. 119 reversed and cause remanded with directions.
CASE NOTE Before the Engel and Schempp cases, many decisions were rendered by state courts that found that morning religious activities did not violate constitutional or statutory provisions. Some of these were Hackett v. Brooksville Graded School District, 120 Ky. 608, 87 S.W. 792 (1905); Donahoe v. Richards, 38 Me. 379, 61 Am. Dec. 256 (1854); Moore v. Monroe, 64 Iowa 367, 20 N.W. 475 (1884); Billard v. Board of Education of City of Topeka, 69 Kan. 53, 76 P. 422 (1904); Knowlton v. Baumhover, 182 Iowa 691, 166 N.W. 202 (1918); and McCormick v. Burt, 95 Ill. 263 (1880). The following state courts held that religious exercises offended their constitutions: State ex rel. Weiss v. District Board, 76 Wis. 177, 44 N.W. 967 (1890); State ex rel. Freeman v. Scheve, 65 Neb. 853, 91 N.W. 846 (1902); People ex rel. Ring v. Board of
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Supreme Court’s Secularization of Public Schools: A Bifurcated Standard FIGURE 5.2
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Education of District 24, 245 Ill. 334, 92 N.E. 251 (1910); Herold v. Parish Board of School Directors, 136 La. 1034, 68 So. 116 (1915); State ex rel. Finger v. Weedman, 55 S.D. 343, 226 N.W. 348 (1929).
State Statute Requiring Posting of Copy of Ten Commandments in Walls of Each Public Classroom Is Violative of Establishment Clause
Stone v. Graham Supreme Court of the United States, 1981. 449 U.S. 39, 101 S. Ct. 192.
PER CURIAM. A Kentucky statute requires the posting of a copy of the Ten Commandments, purchased with private contributions, on the wall of each public classroom in the State. Petitioners, claiming that this statute violates the Establishment and
Free Exercise Clauses of the First Amendment, sought an injunction against its enforcement. The state trial court upheld the statute, finding that its “avowed purpose” was “secular and not religious,” and that the statute would “neither advance nor inhibit any religion or religious group” nor involve the State excessively in religious matters. The Supreme Court of the Commonwealth of Kentucky affirmed by an equally divided court. We reverse. The statute provides in its entirety: (1) It shall be the duty of the superintendent of public instruction, provided sufficient funds are available as provided in subsection (3) of this Section, to ensure that a durable, permanent copy of the Ten Commandments shall be displayed on a wall in each public elementary and secondary school classroom in the Commonwealth. The copy shall be sixteen (16) inches wide by twenty (20) inches high. (2) In small print below the last commandment shall appear a notation concerning the purpose of the display, as follows: ‘The secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States.’
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(3) The copies required by this Act shall be purchased with funds made available through voluntary contributions made to the state treasurer for the purposes of this Act. 1978 Ky. Acts, ch. 436, § 1 (effective June 17, 1978), Ky.Rev.Stat. § 158.178 (1980).
This Court has announced a three-part test for determining whether a challenged state statute is permissible under the Establishment Clause of the United States Constitution: First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion . . . ; finally the statute must not foster ‘an excessive government entanglement with religion.’
If a statute violates any of these three principles, it must be struck down under the Establishment Clause. We conclude that Kentucky’s statute requiring the posting of the Ten Commandments in public schoolrooms had no secular legislative purpose, and is therefore unconstitutional. The Commonwealth insists that the statute in question serves a secular legislative purpose, observing that the legislature required the following notation in small print at the bottom of each display of the Ten Commandments: “The secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States.” The trial court found the “avowed” purpose of the statute to be secular, even as it labeled the statutory declaration “self-serving.” Under this Court’s rulings, however, such an “avowed” secular purpose is not sufficient to avoid conflict with the First Amendment. . . . The preeminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature. The Ten Commandments are undeniably a sacred text in the Jewish and Christian faiths, and no legislative recitation of a supposed secular purpose can blind us to that fact. The Commandments do not confine themselves to arguably secular matters, such as honoring one’s parents, killing or murder, adultery, stealing, false witness, and covetousness. Rather, the first part of the Commandments concerns the religious duties of believers: worshipping the Lord God alone, avoiding idolatry, not using the Lord’s name in vain, and observing the Sabbath Day. See Exodus 20:1–11; Deuteronomy 5:6–15.
This is not a case in which the Ten Commandments are integrated into the school curriculum, where the Bible may constitutionally be used in an appropriate study of history, civilization, ethics, comparative religion, or the like. Posting of religious texts on the wall serves no such educational function. If the posted copies of the Ten Commandments are to have any effect at all, it will be to induce the schoolchildren to read, meditate upon, perhaps to venerate and obey, the Commandments. However desirable this might be as a matter of private devotion, it is not a permissible state objective under the Establishment Clause. It does not matter that the posted copies of the Ten Commandments are financed by voluntary private contributions, for the mere posting of the copies under the auspices of the legislature provides the “official support of the State . . . Government” that the Establishment Clause prohibits. Nor is it significant that the Bible verses involved in this case are merely posted on the wall, rather than read aloud as in Schempp and Engel, for “it is no defense to urge that the religious practices here may be relatively minor encroachments on the First Amendment.” We conclude that § 158.178 (1980) violates the first part of the Lemon v. Kurtzman, test, and thus the Establishment Clause of the Constitution. The petition for a writ of certiorari is granted, and the judgment below is reversed. It is so ordered.
CASE NOTES 1. In 2005, the U.S. Supreme Court rendered two opinions further clarifying the constitutionality of displays of the Ten Commandments on public sites. In one of the cases, the Supreme Court, with Justice Souter writing for the majority, ruled that a McCreary County, Kentucky, display of the Decalogue violated the Establishment Clause because evidence indicated that the purpose was to advance religion. The Court noted that the facts indicated that as in Stone v. Graham, the Ten Commandments was on display alone and was not a part of a secular display of historically important documents imparting some social, moral, and secular purpose. The Court stressed the importance of integrating the Commandments with a secular theme of other documents in order to prevent the interpretation that the government’s purpose was solely to advance
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Supreme Court’s Secularization of Public Schools: A Bifurcated Standard
religion. In this case, the county government had by resolution required placement of the Commandments in a gold frame alone in a high traffic area of the county courthouse. As in Stone v. Graham, the Supreme Court concluded that evidence “supported the common sense conclusion that a religious objective permeated the government’s action.” McCreary County, Kentucky v. American Civil Liberties Union, 545 U.S. 844, 125 S. Ct. 2722 (2005). 2. In a companion case to McCreary County, rendered by the Supreme Court on the same day, a Texas display of the Ten Commandments was upheld as constitutional. The facts differed from McCreary County in that in the latter instance the Ten Commandments had been on display on the 22 acres surrounding the Texas State Capitol building among 17 monuments and 21 historical markers commemorating the “people, ideals, and events that compose the Texas identity.” The monument had stood on the site for 40 years and had been donated to the state by a national social, civic, and patriotic organization. The Court observed that the fact that the Decalogue had been there for 40 years and was among other historical memorials indicated that the Decalogue was intended as a part of American history and heritage. In holding that the Texas display did not offend the Establishment Clause, Chief Justice Rehnquist observed that the Nation’s Capital is replete with friezes and statutes and references to the Ten Commandments, including the Chamber of the U.S. House of Representatives, the Courtroom of the Supreme Court, the exterior of the Supreme Court building, Library of Congress, and the Lincoln Memorial. According to the Court, these displays in Washington, D.C., recognize the role of the Decalogue in America’s heritage and, likewise, in the Texas State Capitol, and even though of religious basis, have undeniable “historical” secular meaning as well as religious significance. The difference in this Texas case and the two Kentucky cases, Stone and McCreary County, is that the purpose and intent in Kentucky was directly religious. Moreover, the Court noted that in Stone the placement of the Ten Commandments was in every classroom, the text of which, “confronted elementary school students every day.” VanOrden v. Rick Perry, Governor of Texas, 545 U.S. 677, 125 S. Ct. 2854 (2005).
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3. The Establishment Clause is not violated by a Las Cruces, New Mexico, public school district logo showing three crosses. The logo was also used by the city as a historical reminder of graves that marked the sites of Spanish colonial and Mexican period massacres in the area. The U.S. Court of Appeals, Tenth Circuit, 2008, noted the unique history of the area and concluded that an objective observer would not understand the logo to be a religious symbol. Weinbaum v. City of Las Cruces, New Mexico, 541 F.2d 1017 (10th Cir. 2008). 4. In 2009, the U.S. Supreme Court inserted a new twist into the Ten Commandments and forum analysis. The twist is that no prior decision of the Court has addressed the application of the Free Speech Clause to a government entity’s acceptance of a private entity’s donated placement of a permanent monument in a public park. Although a public park is considered to be a traditional open forum, the question arises as to whether a monument placed there is private speech or public speech. The Supreme Court in Pheasant Grove City, Utah v. Summum, held that it is actually public or government speech and as such is not subject to scrutiny under the Free Speech Clause which applies only to private speech. The Court cited Board of Regents of the University of Wisconsin System v. Southworth, 529 U.S. 217, 120 S. Ct. 1346 (2000) which held that “A government entity has the right to ‘speak for itself’” and Rosenberger v. Rector and Visitors of University of Virginia, 515 U.S. 819, 115 S. Ct. 2510 (1995), where the Court held that government “is entitled to say what it wishes.” Government, of course, is not unlimited in what it says, for example, violating the Establishment or Free Exercise clauses by advancing religion, but a government entity is not required to permit a private person or entity, to capture public space and implicitly represent that its private message is that of government. Pheasant Grove City, Utah v. Summum, ___ U.S. ___, 129 S. Ct. 1125 (2009). 5. In 2010, the Kentucky Ten Commandments saga continued, this time in Grayson County, where a Reverend Chester Shartzer requested that the Ten Commandments be placed on the Grayson County Courthouse wall as a part of a “Foundations of American Law and Government Display.” The display includes the Mayflower Compact, the Declaration of Independence,
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Magna Carta, etc. The Reverend Shartzer in deposition said his reason for requesting the display and supporting his motion before the Grayson County Fiscal Court was, thus: I simply said, ‘I was on my way up here, and I seen a stop sign. . . . If I had went straight, I’d have went over a bank. . . . Some people will not be more interested in the Declaration of Independence than a fly. Neither are they the Ten Commandments, but they’re signs, . . . they’re about turning right. . . . I’d like my kid to hear somebody say, ‘you oughtn’t to kill somebody,’ . . . I said, ‘That sign was put up for me. It’s a road sign. I’m just wanting to put a road sign in the courthouse . . . for young people to see where the heritage of America is’ —‘how it’s embedded in my heart, and I want it in other hearts.
The Fiscal Court voted to permit the display and the Reverend installed it. The U.S. Court of Appeals, Sixth Circuit, upheld the display, observing that the county did not adopt the donor’s purpose, nor did the display indicate a religious purpose of the county. The court cited Croft v. Governor of Texas, 562 F.3d 735 (5th Cir. 2009) that had held that references to avowedly religious acts such as “prayer” do not, by themselves, indicate a religious purpose. The Sixth Circuit, thus, concluded that the Ten Commandments included with other documents do not provide evidence of a predominately religious purpose. American Civil Liberties Union of Kentucky v. Grayson County, Kentucky, 591 F.3d 837 (6th Cir. 2010). See also: distinguished in ACLU v. McCreary Co., Kentucky, 607 F.3d 439 (6th Cir. 2010).
State Statute Authorizing a Period for Meditation or Voluntary Prayer Violates the Establishment Clause
Wallace v. Jaffree Supreme Court of the United States, 1985. 472 U.S. 38, 105 S. Ct. 2479.
Justice STEVENS delivered the opinion of the Court. At an early stage of this litigation, the constitutionality of three Alabama statutes was questioned:
(1) § 16-1-20, enacted in 1978, which authorized a one-minute period of silence in all public schools “for meditation”; (2) § 16-1-20.1, enacted in 1981, which authorized a period of silence “for meditation or voluntary prayer”; and (3) § 16-1-20.2, enacted in 1982, which authorized teachers to lead “willing students” in a prescribed prayer to “Almighty God . . . the Creator and Supreme Judge of the world.” . . . [T]he narrow question for decision is whether § 16-1-20.1, which authorizes a period of silence for “meditation or voluntary prayer,” is a law respecting the establishment of religion within the meaning of the First Amendment. . . . On August 2, 1982, the District Court held an evidentiary hearing on appellees’ motion for a preliminary injunction. At that hearing, State Senator Donald G. Holmes testified that he was the “prime sponsor” of the bill that was enacted in 1981 as § 16-1-20.1. He explained that the bill was an “effort to return voluntary prayer to our public schools . . . it is a beginning and a step in the right direction.” Apart from the purpose to return voluntary prayer to public schools, Senator Holmes unequivocally testified that he had “no other purpose in mind.” . . . In its lengthy conclusions of law, the District Court reviewed a number of opinions of this Court interpreting the Establishment Clause of the First Amendment, and then embarked on a fresh examination of the question whether the First Amendment imposes any barrier to the establishment of an official religion by the State of Alabama. After reviewing at length what it perceived to be newly discovered historical evidence, the District Court concluded that “the establishment clause of the first amendment to the United States Constitution does not prohibit the state from establishing a religion.” In a separate opinion, the District Court dismissed appellees’ challenge to the three Alabama statutes because of a failure to state any claim for which relief could be granted. The court’s dismissal of this challenge was also based on its conclusion that the Establishment Clause did not bar the States from establishing a religion. The Court of Appeals consolidated the two cases; not surprisingly, it reversed. . . . Our unanimous affirmance of the Court of Appeals’ judgment concerning § 16-1-20.2 makes it unnecessary to comment at length on the District
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Supreme Court’s Secularization of Public Schools: A Bifurcated Standard
Court’s remarkable conclusion that the Federal Constitution imposes no obstacle to Alabama’s establishment of a state religion. Before analyzing the precise issue that is presented to us, it is nevertheless appropriate to recall how firmly embedded in our constitutional jurisprudence is the proposition that the several States have no greater power to restrain the individual freedoms protected by the First Amendment than does the Congress of the United States. . . . Just as the right to speak and the right to refrain from speaking are complementary components of a broader concept of individual freedom of mind, so also the individual’s freedom to choose his own creed is the counterpart of his right to refrain from accepting the creed established by the majority. At one time it was thought that this right merely proscribed the preference of one Christian sect over another, but would not require equal respect for the conscience of the infidel, the atheist, or the adherent of a non-Christian faith such as Mohammedism or Judaism. But when the underlying principle has been examined in the crucible of litigation, the Court has unambiguously concluded that the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all. This conclusion derives support not only from the interest in respecting the individual’s freedom of conscience, but also from the conviction that religious beliefs worthy of respect are the product of free and voluntary choice by the faithful, and from recognition of the fact that the political interest in forestalling intolerance extends beyond intolerance among Christian sects—or even intolerance among “religions”—to encompass intolerance of the disbeliever and the uncertain. As Justice Jackson eloquently stated in Board of Education v. Barnette: If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.
The state of Alabama, no less than the Congress of the United States, must respect that basic truth. When the Court has been called upon to construe the breadth of the Establishment Clause, it
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has examined the criteria developed over a period of many years. Thus, in Lemon v. Kurtzman, . . . we wrote: Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years. Three such tests may be gleaned from our cases. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, Board of Education v. Allen, . . . finally, the statute must not foster ‘an excessive government entanglement with religion.’ . . .
It is the first of these three criteria that is most plainly implicated by this case. As the District Court correctly recognized, no consideration of the second or third criteria is necessary if a statute does not have a clearly secular purpose. For even though a statute that is motivated in part by a religious purpose may satisfy the first criterion, . . . the First Amendment requires that a statute must be invalidated if it is entirely motivated by a purpose to advance religion. In applying the purpose test, it is appropriate to ask “whether government’s actual purpose is to endorse or disapprove of religion.” In this case, the answer to that question is dispositive. For the record not only provides us with an unambiguous affirmative answer, but it also reveals that the enactment of § 16-1-20.1 was not motivated by any clearly secular purpose—indeed, the statute had no secular purpose. The sponsor of the bill that became § 16-1-20.1, Senator Donald Holmes, inserted into the legislative record—apparently without dissent—a statement indicating that the legislation was an “effort to return voluntary prayer” to the public schools. Later Senator Holmes confirmed this purpose before the District Court. In response to the question whether he had any purpose for the legislation other than returning voluntary prayer to public schools, he stated, “No, I did not have no other purpose in mind.” The State did not present evidence of any secular purpose. . . . The legislative intent to return prayer to the public schools is, of course, quite different from merely protecting every student’s right to engage in voluntary prayer during an appropriate moment of silence during the school day. The 1978 statute already protected that right, containing nothing that prevented any student from engaging in voluntary prayer during a silent minute
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of meditation. Appellants have not identified any secular purpose that was not fully served by § 16-1-20 before the enactment of § 16-1-20.1. Thus, only two conclusions are consistent with the text of § 16-1-20.1: (1) the statute was enacted to convey a message of State endorsement and promotion of prayer; or (2) the statute was enacted for no purpose. No one suggests that the statute was nothing but a meaningless or irrational act. . . . The Legislature enacted § 16-1-20.1 despite the existence of § 16-1-20 for the sole purpose of expressing the State’s endorsement of prayer activities for one minute at the beginning of each school day. The addition of “or voluntary prayer” indicates that the State intended to characterize prayer as a favored practice. Such an endorsement is not consistent with the established principle that the Government must pursue a course of complete neutrality toward religion. The importance of that principle does not permit us to treat this as an inconsequential case involving nothing more than a few words of symbolic speech on behalf of the political majority. For whenever the State itself speaks on a religious subject, one of the questions that we must ask is “whether the Government intends to convey a message of endorsement or disapproval of religion.” The well-supported concurrent findings of the District Court and the Court of Appeals—that § 16-1-20.1 was intended to convey a message of State-approval of prayer activities in the public schools—make it unnecessary, and indeed inappropriate, to evaluate the practical significance of the addition of the words “or voluntary prayer” to the statute. Keeping in mind, as we must, “both the fundamental place held by the Establishment Clause in our constitutional scheme and the myriad, subtle ways in which Establishment Clause values can be eroded,” we conclude that § 16-1-20.1 violates the First Amendment. The judgment of the Court of Appeals is affirmed. It is so ordered.
CASE NOTES 1. In 2009, the Illinois legislature tried its hand at circumventing the Establishment Clause by mandating that school districts institute the practice of observing a period of silence each day. The law provided that the period
of silence could be for prayer or reflection. A U.S. District Court in Illinois held the act unconstitutional as violating the “secular purpose” test of Lemon. The court observed that the act would probably have been permissible if it had been prescribed for only a period of reflection, without the reference to a prayer option. The court concluded that there was no clear secular purpose and the stated purpose was a “sham.” Sherman v. Township High School District 214, 594 F. Supp. 2d 981 (N.D. Ill. 2009). In drawing its conclusions, the federal court in Illinois followed the rationale of the U.S. Court of Appeals, Eleventh Circuit, that upheld a Georgia statute that authorized or permitted teachers in public schools to “conduct a brief period of quiet reflection,” for not more than sixty seconds, for the purpose of silent reflection on the anticipated activities of the day. Since there was no explicit or implied purpose for state-encouraged prayer, the statute passed constitutional muster. Bown v. Gwinnett County School District, 112 F.3d 1464 (11th Cir. 1997).
2. In an attempt to circumvent Wallace v. Jaffree, the Virginia legislature enacted a “minute of silence.” The statute required the local school board to have a daily observance of one minute of silence in each classroom. The Fourth Circuit distinguished this from Jaffree, holding that the purpose was secular. In applying the Lemon test, the court stated: “We conclude that the statute has at least two purposes, one of which is clearly secular and one of which may be secular even though it addresses religion. Where it permits students to pray it is only accommodating religion, which “is itself secular.” Brown v. Gilmore, 258 F.3d 265 (4th Cir. 2000). 3. The Louisiana legislature in 1976 passed legislation to permit “. . . school authorities to allow students and teachers to observe a ‘brief time in silent meditation’ at the beginning of each school day.” In 1992, the Act was amended to allow a “brief time in silent prayer or meditation.” Then in 1999, it was amended again, deleting the word silent. The U.S. Fifth Circuit Court of Appeals ruled “this case is virtually identical to Wallace v. Jaffree.” The amendment sponsor stated that the amendment was to allow verbal prayers in schools. The court stated: “The plain language and nature of the
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Supreme Court’s Secularization of Public Schools: A Bifurcated Standard
1999 amendment as well as the legislators’ contemporaneous statements demonstrate that the sole purpose of the amendment was to return verbal prayer to the public schools. This purpose runs afoul of the Establishment Clause and the Louisiana statute at issue here is therefore unconstitutional.” Doe v. School Board of Ouachita Parish, 274 F.3d 289 (5th Cir. 2001).
Nonsectarian Prayer at School Graduation Is Unconstitutional
Lee v. Weisman Supreme Court of the United States, 1992. 505 U.S. 577, 112 S. Ct. 2649.
Justice KENNEDY delivered the opinion of the Court. School principals in the public school system of the city of Providence, Rhode Island, are permitted to invite members of the clergy to offer invocation and benediction prayers as part of the formal graduation ceremonies for middle schools and for high schools. The question before us is whether including clerical members who offer prayers as part of the official school graduation ceremony is consistent with the Religion Clauses of the First Amendment, provisions the Fourteenth Amendment makes applicable with full force to the States and their school districts. . . . Deborah Weisman graduated from Nathan Bishop Middle School, a public school in Providence, at a formal ceremony in June 1989. She was about 14 years old. . . . Acting for himself and his daughter, Deborah’s father, Daniel Weisman, objected to any prayers at Deborah’s middle school graduation, but to no avail. The school principal, petitioner Robert E. Lee, invited a rabbi to deliver prayers at the graduation exercises for Deborah’s class. . . . It has been the custom of Providence school officials to provide invited clergy with a pamphlet entitled “Guidelines for Civic Occasions,” prepared by the National Conference of Christians and Jews. The Guidelines recommend that
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public prayers at nonsectarian civic ceremonies be composed with “inclusiveness and sensitivity,” though they acknowledge that “[p]rayer of any kind may be inappropriate on some civic occasions.” The principal gave Rabbi Gutterman the pamphlet before the graduation and advised him the invocation and benediction should be nonsectarian. . . . The principle that government may accommodate the free exercise of religion does not supersede the fundamental limitations imposed by the Establishment Clause. It is beyond dispute that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which “establishes a [state] religion or religious faith, or tends to do so.” . . . The State’s involvement in the school prayers challenged today violates these central principles. That involvement is as troubling as it is undenied. A school official, the principal, decided that an invocation and a benediction should be given; this is a choice attributable to the State, and from a constitutional perspective it is as if a state statute decreed that the prayers must occur. The principal chose the religious participant, here a rabbi, . . . and that choice of a rabbi is not disclosed by the record, but the potential for divisiveness over the choice of a particular member of the clergy to conduct the ceremony is apparent. . . . The potential for divisiveness is of particular relevance here though, because it centers around an overt religious exercise in a secondary school environment where, as we discuss below, subtle coercive pressures exist and where the student had no real alternative which would have allowed her to avoid the fact or appearance of participation. The State’s role did not end with the decision to include a prayer and with the choice of clergyman. Principal Lee provided Rabbi Gutterman with a copy of the “Guidelines for Civic Occasions,” and advised him that his prayers should be nonsectarian. Through these means the principal directed and controlled the content of the prayer. . . . It is a cornerstone principle of our Establishment Clause jurisprudence that “it is no part of the business of government to compose official prayers for any group of the American
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people to recite as a part of a religious program carried on by government,” . . . and that is what the school officials attempted to do. . . . The First Amendment’s Religious Clauses mean that religious beliefs and religious expression are too precious to be either proscribed or prescribed by the State. The design of the Constitution is that preservation and transmission of religious beliefs and worship is a responsibility and a choice committed to the private sphere, which itself is promised freedom to pursue that mission. . . . These concerns have particular application in the case of school officials, whose effort to monitor prayer will be perceived by the students as inducing a participation they might otherwise reject. Though the efforts of the school officials in this case to find common ground appear to have been a good-faith attempt to recognize the common aspects of religions and not the divisive ones, our precedents do not permit school officials to assist in composing prayers as an incident to a formal exercise for their students. . . . And these same precedents caution us to measure the idea of a civic religion against the central meaning of the Religious Clauses of the First Amendment, which is that all creeds must be tolerated and none favored. The suggestion that government may establish an official or civic religion as a means of avoiding the establishment of a religion with more specific creeds strikes us as a contradiction that cannot be accepted. The degree of school involvement here made it clear that the graduation prayers bore the imprint of the State and thus put school-age children who objected in an untenable position. We turn our attention now to consider the position of the students, both those who desired the prayer and she who did not. . . . As we have observed before, there are heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools. . . . We recognize, among other things, that prayer exercises in public school carry a particular risk of indirect coercion. The concern may not be limited to the context of schools, but it is most pronounced there. . . . What to most believers may seem nothing more than a reasonable request that the nonbeliever respect their religious practices, in a school context may appear to the
nonbeliever or dissenter to be an attempt to employ the machinery of the State to enforce a religious orthodoxy. We need not look beyond the circumstances of this case to see the phenomenon at work. The undeniable fact is that the school district’s supervision and control of a high school graduation ceremony places public pressure, as well as peer pressure, on attending students to stand as a group or, at least, maintain respectful silence during the Invocation and Benediction. This pressure, though subtle and indirect, can be as real as any overt compulsion. . . . It is of little comfort to a dissenter, then, to be told that for her the act of standing or remaining in silence signifies mere respect, rather than participation. What matters is that, given our social conventions, a reasonable dissenter in this milieu could believe that the group exercise signified her own participation or approval of it. . . . The injury caused by the government’s action, and the reason why Daniel and Deborah Weisman object to it, is that the State, in a school setting, in effect required participation in a religious exercise. It is, we concede, a brief exercise during which the individual can concentrate on joining its message, meditate on her own religion, or let her mind wander. But the embarrassment and the intrusion of the religious exercise cannot be refuted by arguing that these prayers, and similar ones to be said in the future, are of a de minimis character. . . . There was a stipulation in the District Court that attendance at graduation and promotional ceremonies is voluntary. Petitioners and the United States, as amicus, made this a center point of the case, arguing that the option of not attending the graduation excuses any inducement or coercion in the ceremony itself. The argument lacks all persuasion. Law reaches past formalism. And to say a teenage student has a real choice not to attend her high school graduation is formalistic in the extreme. True, Deborah could elect not to attend commencement without renouncing her diploma; but we shall not allow the case to turn on this point. Attendance may not be required by official decree, yet it is apparent that a student is not free to absent herself from the graduation exercise in any real sense of the term “voluntary,” for absence would require forfeiture of those intangible benefits which have
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Supreme Court’s Secularization of Public Schools: A Bifurcated Standard
motivated the student through youth and all her high school years. Graduation is a time for family and those closest to the student to celebrate success and express mutual wishes of gratitude and respect, all to the end of impressing upon the young person the role that it is his or her right and duty to assume in the community and all of its diverse parts. The importance of the event is the point the school district and the United States rely upon to argue that a formal prayer ought to be permitted, but it becomes one of the principal reasons why their argument must fail. Their contention, one of considerable force were it not for the constitutional constraints applied to state action, is that the prayers are an essential part of these ceremonies because for many persons an occasion of this significance lacks meaning if there is no recognition, however brief, that human achievements cannot be understood apart from their spiritual essence. We think the Government’s position that this interest suffices to force students to choose between compliance or forfeiture demonstrates fundamental inconsistency in its argumentation. It fails to acknowledge that what for many of Deborah’s classmates and their parents was a spiritual imperative was for Daniel and Deborah Weisman religious conformation compelled by the State. While in some societies the wishes of the majority might prevail, the Establishment Clause of the First Amendment is addressed to this contingency and rejects the balance urged upon us. The Constitution forbids the State to exact religious conformity from a student as the price of attending her own high school graduation. This is the calculus the Constitution commands. . . . We do not hold that every state action implicating religion is invalid if one or a few citizens find it offensive. People may take offense at all manner of religious as well as nonreligious messages, but offense alone does not in every case show a violation. We know too that sometimes to endure social isolation or even anger may be the price of conscience or nonconformity. But, by any reading of our cases, the conformity required of the student in this case was too high an exaction to withstand the test of the Establishment Clause. The prayer exercises in this case are especially improper because the State has in every practical sense compelled attendance and
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participation in an explicit religious exercise at an event of singular importance to every student, one the objecting student had no real alternative to avoid. . . . For reasons we have stated, the judgment of the Court of Appeals is Affirmed.
School District’s Policy Permitting Student-Led, Student-Initiated Prayer at Football Games Violates the Establishment Clause
Santa Fe Independent School District v. Doe Supreme Court of the United States, 2000. 530 U.S. 290, 120 S. Ct. 2266.
Justice STEVENS delivered the opinion of the Court. Prior to 1995, the Santa Fe High School student who occupied the school’s elective office of student council chaplain delivered a prayer over the public address system before each varsity football game for the entire season. This practice, along with others, was challenged in District Court as a violation of the Establishment Clause of the First Amendment. While these proceedings were pending in the District Court, the school district adopted a different policy that permits, but does not require, prayer initiated and led by a student at all home games. The District Court entered an order modifying that policy to permit only nonsectarian, non-proselytizing prayer. The Court of Appeals held that, even as modified by the District Court, the football prayer policy was invalid. We granted the school district’s petition for certiorari to review that holding. . . . Respondents are two sets of current or former students and their respective mothers. One family is Mormon and the other is Catholic. The District Court permitted respondents (Does) to litigate anonymously to protect them from intimidation or harassment. . . . [In August the school passed a policy] which was titled “Prayer at Football Games,” . . . It authorized two student elections, the first to
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determine whether “invocations” should be delivered, and the second to select the spokesperson to deliver them. [The policy] contained two parts, an initial statement that omitted any requirement that the content of the invocation be “nonsectarian and nonproselytizing,” and a fallback provision that automatically added that limitation if the preferred policy should be enjoined [by the court]. On August 31, 1995, according to the parties’ stipulation, “the district’s high school students voted to determine whether a student would deliver prayer at varsity football games. . . . The students chose to allow a student to say a prayer at football games.” . . . A week later, in a separate election, they selected a student “to deliver the prayer at varsity football games.” . . . The final policy (October policy) is essentially the same as the August policy, though it omits the word “prayer” from its title, and refers to “messages” and “statements” as well as “invocations.” It is the validity of that policy that is before us. . . . We granted the District’s petition for certiorari, limited to the following question: “Whether petitioner’s policy permitting student-led, studentinitiated prayer at football games violates the Establishment Clause.” . . . We conclude, as did the Court of Appeals, that it does. . . . The first Clause in the First Amendment to the Federal Constitution provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The Fourteenth Amendment imposes those substantive limitations on the legislative power of the States and their political subdivisions. . . . In Lee v. Weisman, . . . we held that a prayer delivered by a rabbi at a middle school graduation ceremony violated that Clause. Although this case involves student prayer at a different type of school function, our analysis is properly guided by the principles that we endorsed in Lee. . . . These invocations are authorized by a government policy and take place on government property at government-sponsored schoolrelated events. Of course, not every message delivered under such circumstances is the government’s own. We have held, for example, that an individual’s contribution to a governmentcreated forum was not government speech. . . . Although the District relies heavily on Rosenberger
and similar causes involving such forums, it is clear that the pregame ceremony is not the type of forum discussed in those cases. The Santa Fe school officials simply do not “evince either ‘by policy or by practice,’ any intent to open the [pregame ceremony] to ‘indiscriminate use,’ . . . by the student body generally.” . . . Rather, the school allows only one student, the same student for the entire season, to give the invocation. The statement or invocation, moreover, is subject to particular regulations that confine the content and topic of the student’s message. . . . Granting only one student access to the stage at a time does not, of course, necessarily preclude a finding that a school has created a limited public forum. Here, however, Santa Fe’s student election system ensures that only those messages deemed “appropriate” under the District’s policy may be delivered. That is, the majoritarian process implemented by the District guarantees, by definition, that minority candidates will never prevail and that their views will be effectively silenced. . . . In Lee, the school district made the related argument that its policy of endorsing only “civic or nonsectarian” prayer was acceptable because it minimized the intrusion on the audience as a whole. We rejected that claim by explaining that such a majoritarian policy “does not lessen the offense or isolation to the objectors. At best it narrows their number, at worst increases their sense of isolation and affront.” . . . Similarly, while Santa Fe’s majoritarian election might ensure that most of the students are represented, it does nothing to protect the minority; indeed, it likely serves to intensify their offense. Moreover, the District has failed to divorce itself from the religious content in the invocations. It has not succeeded in doing so, either by claiming that its policy is “one of neutrality rather than endorsement” or by characterizing the individual student as the “circuit-breaker” in the process. Contrary to the District’s repeated assertions that it has adopted a “hands-off” approach to the pregame invocation, the realities of the situation plainly reveal that its policy involves both perceived and actual endorsement of religion. In this case, as we found in Lee, the “degree of school involvement” makes it clear that the pre-game prayers bear “the imprint of
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Supreme Court’s Secularization of Public Schools: A Bifurcated Standard
the State and thus put school-age children who objected in an untenable position.” . . . The District has attempted to disentangle itself from the religious messages by developing the two-step student election process. The text of the October policy, however, exposes the extent of the school’s entanglement. The elections take place at all only because the school “board has chosen to permit students to deliver a brief invocation and/or message.” . . . The elections thus “shall” be conducted “by the high school student council” and “[u]pon advice and direction of the high school principal.” . . . The decision whether to deliver a message is first made by majority vote of the entire student body, followed by a choice of the speaker in a separate, similar majority election. Even though the particular words used by the speaker are not determined by those votes, the policy mandates that the “statement or invocation” be “consistent with the goals and purposes of this policy,” which are “to solemnize the event, to promote good sportsmanship and student safety, and to establish the appropriate environment for the competition.” . . . In addition to involving the school in the selection of the speaker, the policy, by its terms, invites and encourages religious messages. The policy itself states that the purpose of the message is “to solemnize the event.” A religious message is the most obvious method of solemnizing an event. . . .Thus, the expressed purposes of the policy encourage the selection of a religious message, and that is precisely how the students understand the policy. The results of the elections described in the parties’ stipulation make it clear that the students understood that the central question before them was whether prayer should be a part of the pregame ceremony. We recognize the important role that public worship plays in many communities, as well as the sincere desire to include public prayer as a part of various occasions so as to mark those occasions’ significance. But such religious activity in public schools, as elsewhere, must comport with the First Amendment. The actual or perceived endorsement of the message, moreover, is established by factors beyond just the text of the policy. Once the student speaker is selected and the message composed, the invocation is then delivered to a large audience assembled as part of a regularly scheduled,
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school-sponsored function conducted on school property. . . . In this context the members of the listening audience must perceive the pregame message as a public expression of the views of the majority of the student body delivered with the approval of the school administration. . . . 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. . . . Most striking to us is the evolution of the current policy from the long-sanctioned office of “Student Chaplain” to the candidly titled “Prayer at Football Games” regulation. This history indicates that the District intended to preserve the practice of prayer before football games. The conclusion that the District viewed the October policy simply as a continuation of the previous policies is dramatically illustrated by the fact that the school did not conduct a new election, pursuant to the current policy, to replace the results of the previous election, which occurred under the former policy. Given these observations, and in light of the school’s history of regular delivery of a student-led prayer at athletic events, it is reasonable to infer that the specific purpose of the policy was to preserve a popular “state-sponsored religious practice.” . . . The District next argues that its football policy is distinguishable from the graduation prayer in Lee because it does not coerce students to participate in religious observances. . . . One of the purposes served by the Establishment Clause is to remove debate over this kind of issue from governmental supervision or control. We explained in Lee that the “preservation and transmission of religious beliefs and worship is a responsibility and a choice committed to the private sphere.” . . . The two student elections authorized by the policy, coupled with the debates that presumably must precede each, impermissibly invade that private sphere. . . . the District’s decision to hold the constitutionally problematic election is clearly “a choice attributable to the State.” . . . The District further argues that attendance at the commencement ceremonies at issue in Lee ”differs dramatically” from attendance at high school football games, which it contends “are of
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no more than passing interest to many students” and are “decidedly extracurricular,” thus dissipating any coercion. . . . Attendance at a high school football game, unlike showing up for class, is certainly not required in order to receive a diploma. . . . There are some students, however, such as cheerleaders, members of the band, and, of course, the team members themselves, for whom seasonal commitments mandate their attendance, sometimes for class credit. The District also minimizes the importance to many students of attending and participating in extracurricular activities as part of a complete educational experience. As we noted in Lee, “[l]aw reaches past formalism.” . . . To assert that high school students do not feel immense social pressure, or have a truly genuine desire, to be involved in the extracurricular event that is American high school football is “formalistic in the extreme.” . . . The constitution, moreover, demands that the school may not force this difficult choice upon these students for “[I]t is a tenet of the First Amendment that the State cannot require one of its citizens to forfeit his or her rights and benefits as the price of resisting conformance to statesponsored religious practice.” . . . Even if we regard every high school student’s decision to attend a home football game as purely voluntary, we are nevertheless persuaded that the delivery of a pregame prayer has the improper effect of coercing those present to participate in an act of religious worship. For “the government may no more use social pressure to enforce orthodoxy than it may use more direct means.” . . . The constitutional command will not permit the District “to exact religious conformity from a student as the price” of joining her classmates at a varsity football game. . . . The narrow question before us is whether implementation of the October policy insulates the continuation of such prayers from constitutional scrutiny. It does not. . . . The District, nevertheless, asks us to pretend that we do not recognize what every Santa Fe High School student understands clearly—that this policy is about prayer. The District further asks us to accept what is obviously untrue: that these messages are necessary to “solemnize” a football game and that this single-student, yearlong position is essential to the protection of student speech. We refuse to turn a blind eye to
the context in which this policy arose, and that context quells any doubt that this policy was implemented with the purpose of endorsing school prayer. . . . This policy likewise does not survive a facial challenge because it impermissibly imposes upon the student body a majoritarian election on the issue of prayer. Through its election scheme, the District has established a governmental electoral mechanism that turns the school into a forum for religious debate. It further empowers the student body majority with the authority to subject students of minority views to constitutionally improper messages. The award of that power alone, regardless of the students’ ultimate use of it, is not acceptable. . . . Such a system encourages divisiveness along religious lines and threatens the imposition of coercion upon those students not desiring to participate in a religious exercise. Simply by establishing this schoolrelated procedure, which entrusts the inherently nongovernmental subject of religion to a majoritarian vote, a constitutional violation has occurred. . . . . . . The policy is invalid on its face because it establishes an improper majoritarian election on religion, and unquestionably has the purpose and creates the perception of encouraging the delivery of prayer at a series of important school events. The judgment of the Court of Appeals is, accordingly, affirmed. It is so ordered.
CASE NOTES 1. School Board Prayer. Whether school boards can open meetings with prayers is a subject of continuing dispute. In Marsh v. Chambers, 463 U.S. 783, 103 S. Ct. 3330 (1983), the U.S. Supreme Court upheld prayers at legislative sessions. Based on this precedent many school boards continue to have prayers at board meetings. However, the U.S. Court of Appeals, Fifth Circuit, has ruled that such prayers at board meetings are unconstitutional. In this case, the prayers were presented by board members, school administrators, teachers, or students and each prayer over a two-year period had referenced Jesus Christ, God, and the Lord. The court said that a reasonable observer would conclude that the
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Supreme Court’s Secularization of Public Schools: A Bifurcated Standard
prayers indicated an affiliation with Christianity and, thereby, violated the Establishment Clause. Doe v. Tangipahoa Parish School Board, 473 F.3d 188 (5th Cir. 2006). Similarly, the U.S. Court of Appeals, 9th Circuit, has held that repeated references at school board meetings to Jesus Christ and solemnizing meetings in the name of Jesus Christ displayed government support and allegiance to a particular sect or creed, and was therefore unconstitutional. Bacus v. Palo Verde Unified School District Board of Education, 52 Fed. Appx. 355 (9th Cir. 2002). On the other hand, a federal district court in Delaware upheld a school board’s practice of opening meetings with a prayer as not offending the Establishment Clause. Dobrich v. Walls, 380 F. Supp. 2d 366 (D. Del. 2005). See also Doe v. Indian River School District, 685 F.Supp.2d 524 (D.Del.) 2010. 2. Prayers conducted by the Cleveland, Ohio, school board more closely resemble the school prayers in Lee v. Weisman than the legislative prayers in Marsh v. Chambers. In holding the Cleveland prayers unconstitutional for violating the Establishment Clause, the U.S. Court of Appeals, Sixth Circuit, said that the board-conducted prayers violated all three Lemon tests. As to violating the purpose test, the court said that the purpose was religious because the board meetings could have been conducted without resort to prayers. Concerning the primary effect of endorsing religion, the court found the prayers were clearly sectarian, having repeating references to Jesus and the Bible and conducted by a Christian minister. Moreover, the school board’s practice of choosing a member from the local community to give the prayers and the fact that the school board president composed and delivered some of the prayers created an excessive entanglement. Thus, the school board prayers failed on all three counts. Coles v. Cleveland Board of Education, 171 F. 3d 369 (6th Cir. 1999). 3. Although commencement prayers are generally held to be violative of either the Establishment of Free Exercise Clause, the U.S. Court of Appeals, Eighth Circuit, has upheld the constitutionality of a board member ’s recitation of the Lord’s Prayer, inviting parents and students to join him. The prayer
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was not a part of the scheduled events and the school superintendent had earlier advised that prayers by speakers were inappropriate. No one sought to prevent the school board member from reciting the prayer. The court held that the prayer was the board member’s “private speech” and could not be attributed to the school district. Doe v. School District of City of Norfolk, 340 F.3d 605 (8th Cir. 2003). 4. Whether public schools are enhancing religion by having performances of religious music hit a high note of discord in the 2009 “Ave Maria” case. The school superintendent in Everett, Washington, had disallowed the playing of the piece at high school graduation, and a student, supported by the religious right Rutherford Institute, sued the school district and the superintendent, personally. The U.S. Court of Appeals, Ninth Circuit, upheld the school superintendent’s decision pointing out that at a graduation ceremony there is a “captive audience” that is subjected to the program of the school. In such a situation it is reasonable for a school official to prohibit the performance of an “obviously religious piece.” The U.S. Supreme Court rejected an appeal, but not without controversy. Justice Alito, an adamant church advocate on the high court, disagreed vehemently with the high rejection indicating that he would have reversed the Ninth Circuit on the grounds that the student’s free speech trumped the school’s efforts to maintain “free exercise” of religion for those attending the graduation ceremony by not imposing and proselytizing religion upon them. Kathryn Nurre (student) v. Carol Whitehead (Superintendent of Schools), 580 F.3d 1087 (2009), cert. den., 130 S.Ct. 1939 (2010). 5. The U.S. Court of Appeals for the Fifth Circuit has held unconstitutional the conduct of prayer by a coach at athletic games and practices. This court ruled that it does not violate the Establishment Clause to permit the choir to adopt the theme of Christian religious songs. The choir had a legitimate secular purpose in teaching students to sight-read and sing a capella. Moreover, the court observed that given the dominance of religious music in the choral music, to forbid religious songs would constitute hostility toward religion.
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Doe v. Duncanville Independent School District, 70 F.3d 402, 104 Educ. L. Rep. 1032 (5th Cir. 1995). See also Bauchman v. West High School, 900 F. Supp. 254, 104 Educ. L. Rep. 292 (D. Utah 1995). 6. The U.S. Court of Appeals for the Sixth Circuit has ruled that the use of a “Blue Devil” as the school athletic mascot does not violate the Establishment Clause. Kunselman v. Western Reserve Local School District, 70 F.3d 931, 105 Educ. L. Rep. 43 (6th Cir. 1995). 7. Where a school district allowed morning prayer to be broadcast over the school intercom and allowed student-led prayer in the classrooms during school hours, the court enjoined the school’s action on the likelihood that the plaintiff would be successful on the merits in showing that the functions violated the Establishment Clause. Herdahl v. Pontotoc County School District, 887 F. Supp. 902, 101 Educ. L. Rep. 190 (D. Miss. 1995). 8. Is it constitutionally permissible for students to proselytize in the classroom? An elementary school student brought an action challenging the school’s policy of prohibiting him from distributing gifts (pencils and candy canes) containing religious messages in classroom during holiday parties; the federal court ruled that the school prohibiting an elementary school student’s distribution of pencils and candy canes with religious messages did not violate the student’s First Amendment rights. In upholding the school’s restrictions, the court assumed that the elementary school student was attempting to freely speak and exercise his religious beliefs. Although the court added, “The facts leave little doubt that plaintiff’s mother, Dana Walz, is the driving force behind the distribution of these items and this lawsuit. It is highly unlikely that plaintiff, who was only four at the time he attempted to distribute the pencils, was able to independently read and advocate the dissemination of the message on the pencils. Additionally, Mrs. Walz has consistently inquired about and challenged the school’s limitations on the distribution of such items and she is the one who is dissatisfied with the accommodations made by the school.” Walz v. Egg Harbor Township Board of Education, 342 F.3d 271 (3rd Cir. 2003).
9. The boundary between proselytizing and the exercise of free speech may be particularly difficult to discern at times. A high school student was co-salutatorian and was invited to deliver a speech at the school’s graduation ceremony. The speech centered around language intended to inculcate religion. The principal requested a copy of the speech and determined that allowing the pupil to deliver proselytizing comments at a public graduation would violate the Establishment Clause of both the U.S. and California Constitutions. The pupil delivered the speech without the proselytizing language. A year later, the pupil sued, alleging a violation of his freedom of religion, speech, and equal protection rights under the federal Constitution. The court ruled that the school’s refusal to allow the student to deliver a sectarian speech or prayer as part of the graduation was necessary to avoid violating the Establishment Clause. Lassonde v. Pleasanton Unified School District, 320 F.3d 979 (9th Cir. 2003). See also Cole v. Oroville Union High School District, 228 F.3d 1092 (9th Cir. 2000), cert. denied, 532 U.S. 905, 121 S. Ct. 1228 (2001). 10. Dancing. Whether dancing is a religious activity has been ruled upon by the courts. In a case where a local school board policy prohibited dancing on school property, the students and parents filed suit, claiming the policy violated the Establishment Clause. Religious groups of the small rural community opposed dancing and spoke out in support of the school policy. The court ruled that dancing was not religious, but that it was not unconstitutional for a school board to have a rule that is compatible with the belief of a large, vocal segment of the community. The court, in holding for the board, stated that the plaintiff’s remedy is to be found at the ballot box and not in the Constitution. Clayton by Clayton v. Place, 884 F.2d 376 (8th Cir. 1989). 11. Religious Garb in Public Schools. Whether public school teachers can wear religious garb of any particular religious order or society has been litigated on several occasions. Although there is no precise definition of what constitutes religious garments, some states have sought to prohibit any apparel showing the person belongs to a particular sect, denomination, or order. See Donald E.
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Supreme Court’s Secularization of Public Schools: A Bifurcated Standard
Boles, The Two Swords (Ames: Iowa State University Press, 1967), p. 222. In 1894, the Pennsylvania Supreme Court held that the wearing by nuns of garb and insignia of the Sisterhood of St. Joseph while teaching in the public schools did not constitute sectarian teaching. Hysong v. School District of Gallitzin Borough, 164 Pa. 629, 30 A. 482 (1894). The court reasoned that to prohibit the wearing of such apparel would violate the teachers’ religious liberty. Later, the legislature of Pennsylvania prohibited the wearing of garb by public school teachers while in performance of their duties. This statute was subsequently upheld by the Pennsylvania Supreme Court. This time the court maintained that the Act was a reasonable exercise of state power in regulating the educational system to prevent sectarian control. The court found that the legislation “is directed against acts, not beliefs, and only against acts of the teacher while engaged in the performance of his or her duties as such teacher.” Commonwealth v. Herr, 229 Pa. 132, 78 A. 68 (1910). 12. In a case where a West Virginia school board allowed a group to distribute Bibles from tables located in the school hallways (students were not coerced to accept the Bibles), the federal court held that the Constitution did not require the withholding of access to the Bible group. According to the court, if such access were withheld, it would create the impression that religious speech was disfavored. Although upholding the practice as a valid exercise of freedom of speech in high schools, the court nevertheless held that such a practice could not be permitted in elementary schools because of the possibility of coercing younger and more impressionable children. Peck v. Upshur County Board of Education, 155 F.3d 274 (4th Cir. 1998). 13. The No Child Left Behind Act of 2001 (P.L. 107–110, 115 Stat. 1425) has a school prayer provision. It states the secretary of education shall provide guidelines on “constitutionally protected prayer in public elementary and secondary schools, including making the guidance available on the Internet.” The guidance will reflect the current state of the law concerning protected prayer. Each local educational agency should certify in writing that no local policy prevents or denies participating in
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protected prayer. The secretary of education is required to enforce this provision of NCLB. 14. Holiday Displays. In a New York case involving the holiday display policy of the City of New York Department of Education, the federal judge writing for the court started his opinion by saying: No holiday season is complete, at least for the court, without one or more First Amendment challenges to public holiday displays.
The policy allowed the menorah (a ninebranch candelabrum) displayed as a symbol of the Jewish holiday Chanukah and the star and crescent to be displayed as a symbol of the Islamic holiday of Ramadan, but it did not allow a créche or nativity scene to be displayed as a symbol of the Christian holiday of Christmas. Plaintiff Skoros, a Roman Catholic, sued claiming the policy violated her children’s rights under the Establishment and Free Exercise Clauses of the First Amendment and her rights of parental control under the First and Fourteenth Amendments. The policy of the Education Department stated that “The display of secular holiday symbol decorations is permitted. Such symbols include, but are not limited to, Christmas trees, menorahs, and the star and crescent.” The holiday displays were not to celebrate or inculcate religion, but rather to foster understanding and respect for rights and beliefs of others. The Catholic League for Religious and Civil Rights had unsuccessfully petitioned to have the crèche included. The Education Department defended its policy by pointing out that the U.S. Supreme Court had recognized both the menorah and the Christmas tree as secular symbols. The court noted that the display of the crèche as a part of a larger holiday display had been upheld by the U.S. Supreme Court in Lynch v. Donnelly, 465 U.S. 668, 104 S. Ct. 1355 (1984), but a crèche displayed where it was the sole religious symbol had been stricken by the U.S. Supreme Court in County of Allegheny v. ACLU, 492 U.S. 573, 109 S. Ct. 3086 (1989). In making its decision the federal court applied the Lemon test: (a) purpose, (b) inhibit or enhance, and (c) excessive entanglement. With regard to purpose, the court said that the purpose of the policy was secular and designed to promote pluralism. Second,
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the court ruled that the policy to represent Christmas with a Christmas tree instead of a crèche did not indicate hostility toward or inhibiting of the Christian religion. The court examined the policy under the second prong of the Lemon test in light of Justice O’Connor’s “endorsement test” that she advanced in Allegheny. The court concluded with regard to this prong that the objective, reasonable observer would not conclude that the challenged policy endorsed Judaism or Islam. With regard to the third prong of Lemon, the court ruled that there was not excessive entanglement because the policy did in no way encroach or become mixed with church sectarian functions. Moreover, the policy did not cede government authority to a sectarian group or take sides in a religious dispute. Finally, the court found the plaintiff’s free exercise claim to be without merit because the school policy did not impose a belief on the plaintiff’s children with such secular displays. The court did note, however, that the secular nature of the menorah was misconstrued, but the problem was remedied by having it displayed with other secular symbols. Skoros v. City of New York, 437 F.3d (1st Cir. 2006).
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Equal Access Act
The Equal Access Act, passed by the U.S. Congress in 1984, was based on the free speech determination of Widmar v. Vincent.283 In Widmar, the University of Missouri had refused to allow a religious group the use of university facilities because of the possible violation of the Establishment Clause. The court ruled that to refuse religious groups access to facilities, while allowing other groups to use the same facilities, violated the students’ right of free speech. The Reagan administration, using this case as a rationale, applied the equal access concept to noncurricular high school activities in order to allow religious functions in public schools. The Equal Access Act provides that if a school district receives federal money and allows noncurricular activities and club meetings, then it is unlawful to deny students the right to meet for religious activities. Therefore, if a public high school has noncurricular meetings, such as a photography club, and this activity is not directly related to a specific class or a class requirement, then the school has created a “limited open forum.” If a limited open forum
exists, then all groups, regardless of their religious, political, or philosophical beliefs, are allowed to form and hold meetings and activities in the public high school. Such groups must be student initiated and not sponsored by the school. The Supreme Court on June 4, 1990, upheld the constitutionality of the Equal Access Act. In Board of Education of the Westside Community Schools v. Mergens,284 the Court ruled that if a school allows any noncurricular groups to meet, then a limited open forum is created, and any student-initiated group has a right to assemble. These groups would be allowed to convene during noninstructional time when other groups, such as the chess club, meet. Widmar and Mergens led the courts to use the free speech test more frequently when dealing with church and state issues. The U.S. Supreme Court, when addressing free speech, uses a “forum analysis.” According to this analysis, freedom of speech must be classified into the type of forum in which it is delivered. As elaborated more extensively later in this book, there are three types of public forums: (1) the traditional public forum—open public areas, parks, sidewalks—in these venues a speech is extensively protected and can only be withdrawn or restrained with a narrowly drawn and compelling government interest; (2) the “limited public forum,” where the state opens its property for public use—a public school is not generally considered to be a “limited public forum” unless school officials have granted use of the school to outsiders for use beyond the curricular interests of the school; and (3) the “closed forum,” where the public school is not open for general public use by various interest groups not related to school curricular purposes.
Students Have a Right to Organize Their Own Groups in Public Schools, Whether These Groups Be Religious, Political, or Philosophical
Board of Education of the Westside Community Schools v. Mergens Supreme Court of the United States, 1990. 496 U.S. 226, 110 S. Ct. 2356.
Justice O’CONNOR delivered the opinion of the Court. . . .
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Equal Access Act
This case requires us to decide whether the Equal Access Act, 98 Stat. 1302, 20 U.S.C. §§ 4071–4074, prohibits Westside High School from denying a student religious group permission to meet on school premises during noninstructional time, and if so, whether the Act, so construed, violates the Establishment Clause of the First Amendment. Respondents are current and former students at Westside High School, a public secondary school in Omaha, Nebraska. . . . Students at Westside High School are permitted to join various student groups and clubs, all of which meet after school hours on school premises. The students may choose from approximately 30 recognized groups on a voluntary basis. . . . School Board Policy 5610 concerning “Student Clubs and Organizations” recognizes these student clubs as a “vital part of the total education program as a means of developing citizenship, wholesome attitudes, good human relations, knowledge and skills.” . . . Board Policy 5610 also provides that each club shall have faculty sponsorship and that “clubs and organizations shall not be sponsored by any political or religious organization, or by any organization which denies membership on the basis of race, color, creed, sex or political belief.” Board Policy 6180 on “Recognition of Religious Beliefs and Customs” requires that “[s]tudents adhering to a specific set of religious beliefs or holding to little or no belief shall be alike respected.” In addition, Board Policy 5450 recognizes its students’ “Freedom of Expression,” consistent with the authority of the Board. There is no written school board policy concerning the formation of student clubs. Rather, students wishing to form a club present their request to a school official who determines whether the proposed club’s goals and objectives are consistent with school board policies and with the school district’s “Mission and Goals”—a broadly worded “blueprint” that expresses the district’s commitment to teaching academic, physical, civic, and personal skills and values. In January 1985, respondent Bridget Mergens met with Westside’s principal, Dr. Findley, and requested permission to form a Christian club at the school. . . . Findley denied the request, as did associate superintendent Tangdell. In February 1985,
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Findley and Tangdell informed Mergens that they had discussed the matter with Superintendent Hanson and that he had agreed that her request should be denied. The school officials explained that school policy required all student clubs to have a faculty sponsor, which the proposed religious club would not or could not have, and that a religious club at the school would violate the Establishment Clause. In March 1985, Mergens appealed the denial of her request to the Board of Education, but the Board voted to uphold the denial. . . . Respondents . . . then brought this suit in the United States District Court for the District of Nebraska. . . . They alleged that petitioners’ refusal to permit the proposed club to meet at Westside violated the Equal Access Act, 20 U.S.C. §§ 4071–4074, which prohibits public secondary schools that receive federal financial assistance and that maintain a “limited open forum” from denying “equal access” to students who wish to meet within the forum on the basis of the content of the speech at such meetings. . . . Respondents further alleged that petitioners’ actions denied them their First and Fourteenth Amendment rights to freedom of speech, association, and the free exercise of religion. Petitioners responded that the Equal Access Act did not apply to Westside and that, if the Act did apply, it violated the Establishment Clause of the First Amendment and was therefore unconstitutional. . . . In Widmar v. Vincent, 454 U.S. 263 (1981), we invalidated, on free speech grounds, a state university regulation that prohibited student use of school facilities “for purposes of religious worship or religious teaching.” In doing so, we held that an “equal access” policy would not violate the Establishment Clause under our decision in Lemon v. Kurtzman. . . . In particular, we held that such a policy would have a secular purpose, would not have the primary effect of advancing religion, and would not result in excessive entanglement between government and religion. . . . We noted, however, that “[u]niversity students are, of course, young adults. They are less impressionable than younger students and should be able to appreciate that the University’s policy is one of neutrality toward religion.” In 1984, Congress extended the reasoning of Widmar to public secondary schools. Under the Equal Access Act, a public secondary school with a “limited open forum” is prohibited from
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discriminating against students who wish to conduct a meeting within that forum on the basis of the “religious, political, philosophical, or other content of the speech at such meetings.” . . . Specifically, the Act provides: It shall be unlawful for any public secondary school which receives Federal financial assistance and which has a limited open forum to deny equal access or a fair opportunity to, or discriminate against, any students who wish to conduct a meeting within that limited open forum on the basis of the religious, political, philosophical, or other content of the speech at such meetings. 20 U.S.C. § 4071(a).
A “limited open forum” exists whenever a public secondary school “grants an offering to or opportunity for one or more noncurriculum related student groups to meet on school premises during noninstructional time.” “Meeting” is defined to include “those activities of student groups which are permitted under a school’s limited open forum and are not directly related to the school curriculum.” “Noninstructional time” is defined to mean “time set aside by the school before actual classroom instruction begins or after actual classroom instruction ends.” Thus, even if a public secondary school allows only one “noncurriculum related student group” to meet, the Act’s obligations are triggered and the school may not deny other clubs, on the basis of the content of their speech, equal access to meet on school premises during noninstructional time. The Act further specifies that “[s]chools shall be deemed to offer a fair opportunity to students who wish to conduct a meeting within its limited open forum” if the school uniformly provides that the meetings are voluntary and student initiated; are not sponsored by the school, the government, or its agents or employees; do not materially and substantially interfere with the orderly conduct of educational activities within the school; and are not directed, controlled, conducted, or regularly attended by “nonschool persons.” . . . “Sponsorship” is defined to mean “the act of promoting, leading, or participating in a meeting. The assignment of a teacher, administrator, or other school employee to a meeting for custodial purposes does not constitute sponsorship of the meeting.” If the meetings are religious, employees or agents of the school or government
may attend only in a “non-participatory capacity.” Moreover, a State may not influence the form of any religious activity, require any person to participate in such activity, or compel any school agent or employee to attend a meeting if the content of the speech at the meeting is contrary to that person’s beliefs. . . . The parties agree that Westside High School receives federal financial assistance and is a public secondary school within the meaning of the Act. . . . The Act’s obligation to grant equal access to student groups is therefore triggered if Westside maintains a “limited open forum”— i.e., if it permits one or more “noncurriculum related student groups” to meet on campus before or after classes. Unfortunately, the Act does not define the crucial phrase “noncurriculum related student group.” Our immediate task is therefore one of statutory interpretation. We begin, of course, with the language of the statute. . . . The common meaning of the term “curriculum” is “the whole body of courses offered by an educational institution or one of its branches.” Webster’s Third New International Dictionary 557 (1976); see also Black’s Law Dictionary 345 (5th ed. 1979) (“The set of studies or courses for a particular period, designated by a school or branch of a school”). . . . Any sensible interpretation of “noncurriculum related student group” must therefore be anchored in the notion that such student groups are those that are not related to the body of courses offered by the school. The difficult question is the degree of “unrelatedness to the curriculum” required for a group to be considered “noncurriculum related.” The Act’s definition of the sort of “meeting[s]” that must be accommodated under the statute . . . sheds some light on this question. “[T]he term ‘meeting’ includes those activities of student groups which are . . . not directly related to the school curriculum.” . . . Congress’ use of the phrase “directly related” implies that student groups directly related to the subject matter of courses offered by the school do not fall within the “noncurriculum related” category and would therefore be considered “curriculum related.” The logic of the Act also supports this view, namely, that a curriculum-related student group is one that has more than just a tangential or attenuated relationship to courses offered by the
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Equal Access Act
school. Because the purpose of granting equal access is to prohibit discrimination between religious or political clubs on the one hand and other noncurriculum-related student groups on the other, the Act is premised on the notion that a religious or political club is itself likely to be a noncurriculum-related student group. It follows, then, that a student group that is “curriculum related” must at least have a more direct relationship to the curriculum than a religious or political club would have. . . . During congressional debate on the subject, legislators referred to a number of different definitions, and thus both petitioners and respondents can cite to legislative history favoring their interpretation of the phrase. . . . We think it significant, however, that the Act, which was passed by wide, bipartisan majorities in both the House and the Senate, reflects at least some consensus on a broad legislative purpose. The committee reports indicate that the Act was intended to address perceived widespread discrimination against religious speech in public schools. . . . The committee reports also show that the Act was enacted in part in response to two federal appellate court decisions holding that student religious groups could not, consistent with the Establishment Clause, meet on school premises during noninstructional time. . . . A broad reading of the Act would be consistent with the views of those who sought to end discrimination by allowing students to meet and discuss religion before and after classes. In light of this legislative purpose, we think that the term “noncurriculum related student group” is best interpreted broadly to mean any student group that does not directly relate to the body of courses offered by the school. In our view, a student group directly relates to a school’s curriculum if the subject matter of the group is actually taught, or will soon be taught, in a regularly offered course; if the subject matter of the group concerns the body of courses as a whole; if participation in the group is required for a particular course; or if participation in the group results in academic credit. We think this limited definition of groups that directly relate to the curriculum is a commonsense interpretation of the Act that is consistent with Congress’ intent to provide a low threshold for triggering the Act’s requirements.
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For example, a French club would directly relate to the curriculum if a school taught French in a regularly offered course or planned to teach the subject in the near future. A school’s student government would generally relate directly to the curriculum to the extent that it addresses concerns, solicits opinions, and formulates proposals pertaining to the body of courses offered by the school. If participation in a school’s band or orchestra were required for the band or orchestra classes, or resulted in academic credit, then those groups would also directly relate to the curriculum. The existence of such groups at a school would not trigger the Act’s obligations. On the other hand, unless a school could show that groups such as a chess club, a stamp-collecting club, or a community service club fell within our description of groups that directly relate to the curriculum, such groups would be “noncurriculum related student groups” for purposes of the Act. The existence of such groups would create a “limited open forum” under the Act and would prohibit the school from denying equal access to any other student group on the basis of the content of the group’s speech. Whether a specific student group is a “noncurriculum related student group” will therefore depend on a particular school’s curriculum, but such determinations would be subject to factual findings well within the competence of trial courts to make. . . . The parties in this case focus their dispute on 10 of Westside’s approximately 30 voluntary student clubs: Interact (a service club related to Rotary International); Chess; Sub-surfers (a club for students interested in scuba diving); National Honor Society; Photography; Welcome to Westside (a club to introduce new students to the school); Future Business Leaders of America; Zonta (the female counterpart to Interact); Student Advisory Board (student government); and Student Forum (student government). . . . Petitioners contend that all of these student activities are curriculum-related because they further the goals of particular aspects of the school’s curriculum. Welcome to Westside, for example, helps “further the School’s overall goal of developing effective citizens by requiring student members to contribute to their fellow students.” . . . The student government clubs “advance the goals of the School’s political science classes by providing an understanding and appreciation of
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government processes.” Sub-surfers furthers “one of the essential goals of the Physical Education Department—enabling students to develop lifelong recreational interests.” Chess “supplement[s] math and science courses because it enhances students’ ability to engage in critical thought processes.” Participation in Interact and Zonta “promotes effective citizenship, a critical goal of the WHS curriculum, specifically the Social Studies Department.” To the extent that petitioners contend that “curriculum related” means anything remotely related to abstract educational goals, however, we reject that argument. To define “curriculum related” in a way that results in almost no schools having limited open fora, or in a way that permits schools to evade the Act by strategically describing existing student groups, would render the Act merely hortatory. . . . (“[A] limited open forum should be triggered by what a school does, not by what it says.”) As the court below explained: A l l o w i n g s u c h a b ro a d i n t e r p re t a t i o n o f “curriculum-related” would make the [Act] meaningless. A school’s administration could simply declare that it maintains a closed forum and choose which student clubs it wanted to allow by tying the purposes of those clubs to some broadly defined educational goal. At the same time the administration could arbitrarily deny access to school facilities to any unfavored student club on the basis of its speech content. This is exactly the result that Congress sought to prohibit by enacting the [Act]. A public secondary school cannot simply declare that it maintains a closed forum and then discriminate against a particular student group on the basis of the content of the speech of that group. . . .
Rather, we think it clear that Westside’s existing student groups include one or more “noncurriculum related student groups.” Although Westside’s physical education classes apparently include swimming, . . . counsel stated at oral argument that scuba diving is not taught in any regularly offered course at the school. . . . Based on Westside’s own description of the group, Subsurfers does not directly relate to the curriculum as a whole in the same way that a student government or similar group might. . . . Moreover, participation in Sub-surfers is not required by any course at the school and does not result in extra academic credit. Thus, Sub-surfers is a
“noncurriculum related student group” for purposes of the Act. Similarly, although math teachers at Westside have encouraged their students to play chess, chess is not taught in any regularly offered course at the school, . . . and participation in the chess club is not required for any class and does not result in extra credit for any class. . . . The chess club is therefore another “noncurriculumrelated student group” at Westside. . . . The record therefore supports a finding that Westside has maintained a limited open forum under the Act. Although our definition of “noncurriculum related student activities” looks to a school’s actual practice rather than its stated policy, we note that our conclusion is also supported by the school’s own description of its student activities. . . . [T]he school states that Band “is included in our regular curriculum”; Choir “is a course offered as part of the curriculum”; Distributive Education “is an extension of the Distributive Education class”; International Club is “developed through our foreign language classes”; Latin Club is “designed for those students who are taking Latin as a foreign language”; Student Publications “includes classes offered in preparation of the yearbook (Shield) and the student newspaper (Lance)”; Dramatics “is an extension of a regular academic class”; and Orchestra “is an extension of our regular curriculum.” These descriptions constitute persuasive evidence that these student clubs directly relate to the curriculum. By inference, however, the fact that the descriptions of student activities such as Sub-surfers and chess do not include such references strongly suggests that those clubs do not, by the school’s own admission, directly relate to the curriculum. We therefore conclude that Westside permits “one or more noncurriculum related student groups to meet on school premises during noninstructional time” . . . Because Westside maintains a “limited open forum” under the Act, it is prohibited from discriminating, based on the content of the students’ speech, against students who wish to meet on school premises during noninstructional time. The remaining statutory question is whether petitioners’ denial of respondents’ request to form a religious group constitutes a denial of “equal access” to the school’s limited open forum. Although the school apparently permits respondents to meet informally after school, . . . respondents seek equal access in the form of
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Equal Access Act
official recognition by the school. Official recognition allows student clubs to be part of the student activities program and carries with it access to the school newspaper, bulletin boards, the public address system, and the annual Club Fair. Given that the Act explicitly prohibits denial of “equal access . . . to . . . any students who wish to conduct a meeting within [the school’s] limited open forum” on the basis of the religious content of the speech at such meetings, . . . we hold that Westside’s denial of respondents’ request to form a Christian club denies them “equal access” under the Act. Because we rest our conclusion on statutory grounds, we need not decide—and therefore express no opinion on—whether the First Amendment requires the same result. Petitioners contend that even if Westside has created a limited open forum within the meaning of the Act, its denial of official recognition to the proposed Christian club must nevertheless stand because the Act violates the Establishment Clause of the First Amendment, as applied to the States through the Fourteenth Amendment. Specifically, petitioners maintain that because the school’s recognized student activities are an integral part of its educational mission, official recognition of respondents’ proposed club would effectively incorporate religious activities into the school’s official program, endorse participation in the religious club, and provide the club with an official platform to proselytize other students. We disagree. In Widmar, we applied the threepart Lemon test to hold that an “equal access” policy, at the university level, does not violate the Establishment Clause. . . . We concluded that “an open-forum policy, including nondiscrimination against religious speech, would have a secular purpose,” . . . and would in fact avoid entanglement with religion. . . . We also found that although incidental benefits accrued to religious groups who used university facilities, this result did not amount to an establishment of religion. . . . We think the logic of Widmar applies with equal force to the Equal Access Act. As an initial matter, the Act’s prohibition of discrimination on the basis of “political, philosophical, or other” speech as well as religious speech is a sufficient basis for meeting the secular purpose prong of
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the Lemon test. . . . Congress’ avowed purpose— to prevent discrimination against religious and other types of speech—is undeniably secular. . . . Petitioners’ principal contention is that the Act has the primary effect of advancing religion. Specifically, petitioners urge that, because the student religious meetings are held under school aegis, and because the state’s compulsory attendance laws bring the students together (and thereby provide a ready-made audience for student evangelists), an objective observer in the position of a secondary school student will perceive official school support for such religious meetings. . . . We disagree. . . . We think that secondary school students are mature enough and are likely to understand that a school does not endorse or support student speech that it merely permits on a nondiscriminatory basis. . . . . . . To the extent that a religious club is merely one of many different student-initiated voluntary clubs, students should perceive no message of government endorsement of religion. Thus, we conclude that the Act does not, at least on its face and as applied to Westside, have the primary effect of advancing religion. . . . Petitioners’ final argument is that by complying with the Act’s requirement, the school risks excessive entanglement between government and religion. The proposed club, petitioners urge, would be required to have a faculty sponsor who would be charged with actively directing the activities of the group, guiding its leaders, and ensuring balance in the presentation of controversial ideas. Petitioners claim that this influence over the club’s religious program would entangle the government in day-to-day surveillance of religion of the type forbidden by the Establishment Clause. Under the Act, however, faculty monitors may not participate in any religious meetings, and nonschool persons may not direct, control, or regularly attend activities of student groups. . . . Moreover, the Act prohibits school “sponsorship” of any religious meetings, . . . which means that school officials may not promote, lead, or participate in any such meeting. . . . Although the Act permits “[t]he assignment of a teacher, administrator, or other school employee to the meeting for custodial purposes,” . . . such custodial oversight of the student-initiated religious group, merely
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to ensure order and good behavior, does not impermissibly entangle government in the dayto-day surveillance or administration of religious activities. . . . Accordingly, we hold that the Equal Access Act does not on its face contravene the Establishment Clause. Because we hold that petitioners have violated the Act, we do not decide respondents’ claims under the Free Speech and Free Exercise Clauses. For the foregoing reasons, the judgment of the Court of Appeals is affirmed. It is so ordered.
CASE NOTES 1. Interpretation of the Equal Access Act after Mergens has become an interesting amalgamation of the statute and various provisions of the U.S. Constitution, including the Establishment, Free Exercise, Freedom of Speech, and Equal Protection Clauses. In HSU v. Roslyn Union Free School District No. 3, the U.S. Court of Appeals, Second Circuit, addressed the issue of whether a Bible club could operate in a public high school if the club charter stated that only Christians could be club officers. The school refused the club charter for this reason, and the students sued. The court, in a complicated web of reasoning, concluded that the club’s Christian officers requirement is essential to the expressive content of the meetings and to the club’s preservation of its purpose and identity and is therefore protected by the Equal Access Act. The leadership provision of the club’s constitution applied only to the president, vice-president, and music coordinator. The court concluded that unconditioned recognition of the club would not violate the Establishment Clause or the Equal Protection Clause of the U.S. Constitution. Moreover, in spite of the club’s exclusionary requirements, to deny the club recognition as an after-school Bible group would constitute irreparable injury to the Bible club students and violate their rights under the Equal Access Act. HSU v. Roslyn Union Free School District No. 3, 85 F.3d 839 (2nd Cir. 1996). 2. The Equal Access Act was passed, at least partially, with religious motivation as a remonstrance against public school secularism, which effectively prevented sectarian activities on school grounds and during the school day. The words of the Act requiring schools to
provide for a “limited open forum on the basis of religious, political philosophy and other content” were carefully fashioned but are now having some effects that were not fully anticipated. The Act in effect removes the discretion and autonomy in deciding what school activities will be permitted from the hands of school boards and vests them in the courts. Moreover, for the Equal Access Act itself to be constitutional, it had to be broader than simply a subterfuge to assure that religious clubs had access to school buildings and school time. As it turns out, as Mergens indicates, the only meetings that schools can prohibit are those that would materially and substantially interfere with the orderly conduct of the school. Thus, we have begun to see considerable waffling by school boards and courts as they experience some discomfort as a result of less conventional club meetings. A good example is a recent lower federal court case in California where the court found that a school district had violated the Equal Access Act when the school board voted to deny the application for club status of the Gay Straight Alliance Club. The court observed that the school board would likely be able to show that groups of students discussing homophobia and acceptance of homosexuals would not disrupt the school. Thus, because the board had created a “limited open forum” with several other clubs being recognized, the gay students group had to be given the same rights and privileges as the other student groups. Colin v. Orange Unified School District, 83 F. Supp. 2d 1135 (C.D. Cal. 2000). See also Boyd County High School Gay Straight Alliance v. Board of Education of Boyd County, 258 F. Supp. 2d 667 (E.D. Ky. 2003) (ruling it violated Equal Access Act to deny club same access to school facilities as given other noncurricular club); Franklin Central Gay/Straight Alliance v. Franklin Township Community School Corp., 2002 WL 32097530 (S.D. Ind. 2002). 3. The definition of “curricular” and “noncurricular” groups continues to cause considerable litigation. Where a gay tolerance group challenged a Minnesota school district’s categorization of cheerleading and synchronized swimming as “curricular,” the U.S. Court of Appeals, Eighth Circuit, 2008, ruled that the categorization did not comport with the
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Facilities
Equal Access Act’s definition of “curricular.” Accordingly, the school was determined to be a limited open forum and the gay tolerance group could be provided equal access to school accommodations. Straights and Gays for Equality v. Osseo Area Schools—District No. 279, 540 F.3d 911 (8th Cir. 2008). In 1995, the U.S. Court of Appeals for the Ninth Circuit ruled the Equal Access Act was violated when students were not permitted to have a religious club meeting during lunchtime. The school had previously allowed other nonreligious clubs to hold such meetings. The court noted that the lunch period was noninstructional time within the meaning of the Equal Access Act and that to hold voluntary religious meetings during that time did not violate the Establishment Clause. Ceniceros v. Board of Trustees of the San Diego Unified School District, 66 F.3d 1535, 103 Educ. L. Rep. 934 (9th Cir. 1995). 4. If a school recognizes a nonreligious club, it must not deny recognition to a religious one. Where a school board recognized the school Key Club but refused recognition to the Bible Club, the court ruled that because the Key Club was not curriculum related, the school had created a “limited open forum” under the Equal Access Act and must therefore recognize religious clubs such as the Bible Club as well. Not to do so would violate the Equal Access Act. Pope by Pope v. East Brunswick Board of Education, 12 F.3d 1244, 88 Educ. L. Rep. 552 (3rd Cir. 1993). 5. A school refused to allow Bible Club to meet during “activity period” held from 8:15 a.m. until 8:54 a.m. During this activity period, students normally could take makeup tests, hang out in the gymnasium, attend tutoring sessions, etc. The court ruled this “activity period” could be classified as “noninstructional time” within Equal Access Act; therefore, the Bible Club could meet during “activity period.” Donovan v. Punxsutawney Area School Board, 336 F.3d 211 (3rd Cir. 2003).
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Facilities
After Widmar and Mergens, the courts began to rely on the free speech test more frequently when dealing with church–state issues. They
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reasoned that if religious groups were denied the use of school facilities, while other groups, such as civic organizations, scouts, and so forth, were permitted use of them, then the religious groups’ free speech rights would be denied. To hold otherwise would violate the requirement of neutrality. The free speech test, sometimes called the public forum test, has been applied to the use of school facilities. In earlier cases, the courts ruled that school boards could adopt policies that allowed groups to use school facilities based on the type of organization and the nature of its activities. For example, a school board could allow school facilities to be used by the Boy Scouts and Girl Scouts but could deny access to religious groups. When the free speech/public forum rationale is applied to the use of school facilities, the school must show that the decision as to facility use is “viewpoint neutral.” The viewpoint neutrality analysis was used by the U.S. Supreme Court in Lamb’s Chapel v. Center Moriches Union Free School District.285 In this case, Center Moriches school district in New York denied Lamb’s Chapel Church the after-hours use of school facilities for showing a series of “family values” films. The Supreme Court ruled that such exclusion effectively violated the religious group’s freedom of speech because evidence was presented showing that the school district had created a “limited public forum” by opening the school premises for “social, civic, and recreational” purposes, such as the Salvation Army Band, Center Moriches Quilting Bee, Center Moriches Drama Club, Girl Scouts, Boy Scouts, and Center Moriches Music Awards Association, among others. According to the Court, to open school premises for other groups but to close them to religious groups is not to remain viewpoint neutral. A result similar to Lamb’s Chapel was rendered by the U.S. Court of Appeals, First Circuit, in 1991, two years before Lamb’s Chapel.286 Here the court determined that the school district had created a public forum and that subsequent denial of use of the high school cafeteria for a Christmas dinner violated the free speech rights of members of the organization. Additionally, a Wyoming federal court has found the religious clauses of the First Amendment did not bar such religious accommodation by the school district.287 If a school board allows any group to use school facilities,
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then it cannot exclude another simply because it disagrees with the group’s philosophy. This issue was addressed again in Good News Club v. Milford Central School. The Supreme Court said that they did not understand why the Circuit Court had not applied the precedent in Lamb’s Chapel since the issues were almost identical.
School’s Viewpoint Discrimination Was Not Required to Avoid Violating the Establishment Clause
Good News Club v. Milford Central School Supreme Court of the United States, 2001. 533 U.S. 98, 121 S. Ct. 2093.
This case presents two questions. The first question is whether Milford Central School violated the free speech rights of the Good News Club when it excluded the Club from meeting after hours at the school. The second question is whether any such violation is justified by Milford’s concern that permitting the Club’s activities would violate the Establishment Clause. We conclude that Milford’s restriction violates the Club’s free speech rights and that no Establishment Clause concern justifies that violation. The State of New York authorizes local school boards to adopt regulations governing the use of their school facilities. In particular, N.Y. Educ. Law § 414 (McKinney 2000) enumerates several purposes for which local boards may open their schools to public use. In 1992, respondent Milford Central School (Milford) enacted a community use policy adopting seven of § 414’s purposes for which its building could be used after school. . . . Two of the stated purposes are relevant here. First, district residents may use the school for “instruction in any branch of education, learning or the arts.” . . . Second, the school is available for “social, civic and recreational meetings and entertainment events, and other uses pertaining to the welfare of the community, provided that such uses shall be nonexclusive and shall be opened to the general public.” . . .
Stephen and Darleen Fournier reside within Milford’s district and therefore are eligible to use the school’s facilities as long as their proposed use is approved by the school. Together they are sponsors of the local Good News Club, a private Christian organization for children ages 6 to 12. Pursuant to Milford’s policy, in September 1996 the Fourniers submitted a request to Dr. Robert McGruder, interim superintendent of the district, in which they sought permission to hold the Club’s weekly afterschool meetings in the school cafeteria. . . . The next month, McGruder formally denied the Fourniers’ request on the ground that the proposed use—to have “a fun time of singing songs, hearing a Bible lesson and memorizing scripture,” . . . — was “the equivalent of religious worship.” . . . According to McGruder, the community use policy, which prohibits use “by any individual or organization for religious purposes,” foreclosed the Club’s activities. . . . . . . In February 1997, the Milford Board of Education adopted a resolution rejecting the Club’s request to use Milford’s facilities “for the purpose of conducting religious instruction and Bible study.” . . . In March 1997, petitioners, the Good News Club, Ms. Fournier, and her daughter Andrea Fournier (collectively, the Club), filed an action . . . against Milford in the United States District Court for the Northern District of New York. The Club alleged that Milford’s denial of its application violated its free speech rights under the First and Fourteenth Amendments, its right to equal protection under the Fourteenth Amendment. . . . The Club moved for a preliminary injunction to prevent the school from enforcing its religious exclusion policy against the Club and thereby to permit the Club’s use of the school facilities. On April 14, 1997, the District Court granted the injunction. The Club then held its weekly afterschool meetings from April 1997 until June 1998 in a high school resource and middle school special education room. . . . In August 1998, the District Court vacated the preliminary injunction and granted Milford’s motion for summary judgment. . . . The court found that the Club’s “subject matter is decidedly religious in nature, and not merely a discussion of secular matters from a religious perspective that is otherwise permitted under
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Facilities
[Milford’s] use policies.” . . . Because the school had not permitted other groups that provided religious instruction to use its limited public forum, the court held that the school could deny access to the Club without engaging in unconstitutional viewpoint discrimination. The court also rejected the Club’s equal protection claim. The Club appealed, and a divided panel of the United States Court of Appeals for the Second Circuit affirmed. . . . First, the court rejected the Club’s contention that Milford’s restriction against allowing religious instruction in its facilities is unreasonable. Second, it held that, because the subject matter of the Club’s activities is “quintessentially religious,” . . . and the activities “fall outside the bounds of pure ‘moral and character development,’ ” . . . Milford’s policy of excluding the Club’s meetings was constitutional subject discrimination, not unconstitutional viewpoint discrimination. . . . The standards that we apply to determine whether a State has unconstitutionally excluded a private speaker from use of a public forum depend on the nature of the forum. . . . If the forum is a traditional or open public forum, the State’s restrictions on speech are subject to stricter scrutiny than are restrictions in a limited public forum. . . . We have previously declined to decide whether a school district’s opening of its facilities pursuant to N.Y. Educ. Law § 414 creates a limited or a traditional public forum. . . . Because the parties have agreed that Milford created a limited public forum when it opened its facilities in 1992, . . . we need not resolve the issue here. Instead, we simply will assume that Milford operates a limited public forum. When the State establishes a limited public forum, the State is not required to and does not allow persons to engage in every type of speech. The State may be justified “in reserving [its forum] for certain groups or for the discussion of certain topics.” . . . The State’s power to restrict speech, however, is not without limits. The restriction must not discriminate against speech on the basis of viewpoint, . . . and the restriction must be “reasonable in light of the purpose served by the forum,” . . . Applying this test, we first address whether the exclusion constituted viewpoint discrimination. We are guided in our analysis by two of our prior opinions, Lamb’s Chapel. . . . In Lamb’s
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Chapel, we held that a school district violated the Free Speech Clause of the First Amendment when it excluded a private group from presenting films at the school based solely on the films’ discussions of family values from a religious perspective. Likewise, in Rosenberger, we held that a university’s refusal to fund a student publication because the publication addressed issues from a religious perspective violated the Free Speech Clause. Concluding that Milford’s exclusion of the Good News Club based on its religious nature is indistinguishable from the exclusions in these cases, we hold that the exclusion constitutes viewpoint discrimination. Because the restriction is viewpoint discriminatory, we need not decide whether it is unreasonable in light of the purposes served by the forum. . . . Milford has opened its limited public forum to activities that serve a variety of purposes, including events “pertaining to the welfare of the community.” . . . Milford interprets its policy to permit discussions of subjects such as child rearing, and of “the development of character and morals from a religious perspective.” . . . For example, this policy would allow someone to use Aesop’s Fables to teach children moral values. . . . Additionally, a group could sponsor a debate on whether there should be a constitutional amendment to permit prayer in public schools, . . . and the Boy Scouts could meet “to influence a boy’s character, development and spiritual growth,” . . . In short, any group that “promote[s] the moral and character development of children” is eligible to use the school building. . . . Just as there is no question that teaching morals and character development to children is a permissible purpose under Milford’s policy, it is clear that the Club teaches morals and character development to children. For example, no one disputes that the Club instructs children to overcome feelings of jealousy, to treat others well regardless of how they treat the children, and to be obedient, even if it does so in a nonsecular way. Nonetheless, because Milford found the Club’s activities to be religious in nature—“the equivalent of religious instruction itself,” . . . —it excluded the Club from use of its facilities. Applying Lamb’s Chapel, . . . we find it quite clear that Milford engaged in viewpoint discrimination when it excluded the Club from the after-school forum. In Lamb’s Chapel, the local
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Church and State
New York school district similarly had adopted § 414’s “social, civic or recreational use” category as a permitted use in its limited public forum. The district also prohibited use “by any group for religious purposes.” . . . Citing this prohibition, the school district excluded a church that wanted to present films teaching family values from a Christian perspective. We held that, because the films “no doubt dealt with a subject otherwise permissible” under the rule, the teaching of family values, the district’s exclusion of the church was unconstitutional viewpoint discrimination. . . . Like the church in Lamb’s Chapel, the Club seeks to address a subject otherwise permitted under the rule, the teaching of morals and character, from a religious standpoint. Certainly, one could have characterized the film presentations in Lamb’s Chapel as a religious use, as the Court of Appeals did, . . . And one easily could conclude that the films’ purpose to instruct that “society’s slide toward humanism . . . can only be counterbalanced by a loving home where Christian values are instilled from an early age,” . . . was “quintessentially religious,” . . . The only apparent difference between the activity of Lamb’s Chapel and the activities of the Good News Club is that the Club chooses to teach moral lessons from a Christian perspective through live storytelling and prayer, whereas Lamb’s Chapel taught lessons through films. This distinction is inconsequential. Both modes of speech use a religious viewpoint. Thus, the exclusion of the Good News Club’s activities, like the exclusion of Lamb’s Chapel’s films, constitutes unconstitutional viewpoint discrimination. . . . [T]he Court of Appeals, like Milford, believed that its characterization of the Club’s activities as religious in nature warranted treating the Club’s activities as different in kind from the other activities permitted by the school. . . . (the Club “is doing something other than simply teaching moral values”). The “Christian viewpoint” is unique, according to the court, because it contains an “additional layer” that other kinds of viewpoints do not. . . . That is, the Club “is focused on teaching children how to cultivate their relationship with God through Jesus Christ,” which it characterized as “quintessentially religious.” . . . With these observations, the court concluded that, because the Club’s
activities “fall outside the bounds of pure ‘moral and character development,’ ” the exclusion did not constitute viewpoint discrimination. . . . We disagree that something that is “quintessentially religious” or “decidedly religious in nature” cannot also be characterized properly as the teaching of morals and character development from a particular viewpoint. . . . What matters for purposes of the Free Speech Clause is that we can see no logical difference in kind between the invocation of Christianity by the Club and the invocation of teamwork, loyalty, or patriotism by other associations to provide a foundation for their lessons. It is apparent that the unstated principle of the Court of Appeals’ reasoning is its conclusion that any time religious instruction and prayer are used to discuss morals and character, the discussion is simply not a “pure” discussion of those issues. According to the Court of Appeals, reliance on Christian principles taints moral and character instruction in a way that other foundations for thought or viewpoints do not. We, however, have never reached such a conclusion. . . . Thus, we conclude that Milford’s exclusion of the Club from use of the school, pursuant to its community use policy, constitutes impermissible viewpoint discrimination. . . . Milford argues that, even if its restriction constitutes viewpoint discrimination, its interest in not violating the Establishment Clause outweighs the Club’s interest in gaining equal access to the school’s facilities. In other words, according to Milford, its restriction was required to avoid violating the Establishment Clause. We disagree. We have said that a state interest in avoiding an Establishment Clause violation “may be characterized as compelling,” and therefore may justify content-based discrimination. Widmar v. Vincent, 454 U.S. 263, 271, 102 S. Ct. 269, . . . (1981). However, it is not clear whether a State’s interest in avoiding an Establishment Clause violation would justify viewpoint discrimination. . . . We need not, however, confront the issue in this case, because we conclude that the school has no valid Establishment Clause interest. We rejected Establishment Clause defenses similar to Milford’s in two previous free speech cases, Lamb’s Chapel and Widmar. In particular, in Lamb’s Chapel, we explained that “[t]he showing of th[e] film series would not have been during school hours, would not have been sponsored
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Flag Salute
by the school, and would have been open to the public, not just to church members.” . . . Accordingly, we found that “there would have been no realistic danger that the community would think that the District was endorsing religion or any particular creed.” . . . Likewise, in Widmar, where the university’s forum was already available to other groups, this Court concluded that there was no Establishment Clause problem. . . . The Establishment Clause defense fares no better in this case. As in Lamb’s Chapel, the Club’s meetings were held after school hours, not sponsored by the school, and open to any student who obtained parental consent, not just to Club members. As in Widmar, Milford made its forum available to other organizations. The Club’s activities are materially indistinguishable from those in Lamb’s Chapel and Widmar. Thus, Milford’s reliance on the Establishment Clause is unavailing. . . . . . . [We] can find no reason to depart from our holdings in Lamb’s Chapel and Widmar. Accordingly, we conclude that permitting the Club to meet on the school’s premises would not have violated the Establishment Clause. . . . When Milford denied the Good News Club access to the school’s limited public forum on the ground that the Club was religious in nature, it discriminated against the Club because of its religious viewpoint in violation of the Free Speech Clause of the First Amendment. Because Milford has not raised a valid Establishment Clause claim, we do not address the question whether such a claim could excuse Milford’s viewpoint discrimination. . . . The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.
CASE NOTES 1. Two lower courts, citing the Good News Club case, ruled that the schools must let religious groups have access to the schools. In Campbell v. St. Tammany Parish School Boards, 2003 WL 21783317 (E.D. La. 2003), refusal to let the Christian Coalition of Louisiana use the local school was held unconstitutional on viewpoint discrimination. The U.S. Court of Appeals, in The Bronx Household of Faith v. Board of Education of the City of New York, 331
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F.3d 342 (2nd Cir. 2003), held that to deny the Bronx Household of Faith Church the opportunity to rent space violated the free speech rights of the First Amendment. 2. Where a school board charged churches higher rental fees for school facilities than it charged other nonprofit organizations, the court ruled that the practice violated the Free Speech Clause and interfered with and/ or burdened the church’s right to speak and practice religion as protected by the Free Exercise Clause. Fairfax Covenant Church v. Fairfax County School Board, 17 F.3d 703 (4th Cir. 1994). See also Shumway v. Albany County School District No. 1 Board of Education, 826 F. Supp. 1320, 84 Educ. L. Rep. 989 (D. Wyo. 1993); Trinity United Methodist Parish v. Board of Education of the City School District of the City of Newburgh, 907 F. Supp. 707, 105 Educ. L. Rep. 943 (D. N.Y. 1995).
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Flag Salute
The flag-salute ceremony in the United States originated in 1892 after a substantial rise in national sentiment to stimulate patriotism in the schools. In 1898, New York passed the first flag-salute statute only one day after the United States declared war on Spain. 288 By 1940, 18 states had statutes making provision for “some sort of teaching regarding the flag.”289 Even though the statutes did not specifically require individual recitation, the reality of the classroom regimentation tended to make such statutory pronouncement unnecessary.290 Opposition sprang up on sporadic bases from certain religious groups, the most persistent of which was Jehovah’s Witnesses. In early litigation, the Georgia Supreme Court held that the Witnesses’ religious freedom was not violated, since the flag salute was merely an exercise in patriotism and not a religious rite.291 The plaintiffs received other unfavorable rulings, the most intolerant of which stated that “[t]hose who do not desire to conform with the demands of the statute can seek their school elsewhere.”292 In California, the state’s high court upheld the expulsion of pupils for refusing to salute the flag.293 Similarly, a New York court in 1939 held that “[t]he flag has nothing to do with religion”; therefore, religious freedoms could not be offended.294
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Nationalistic fervor just before World War II brought on more heated controversy, and the Supreme Court, in 1940, rendered a decision. In this case, Justice Frankfurter, speaking for an 8–1 majority, held that freedom of religion guaranteed by the First Amendment was not violated by a Pennsylvania statute that required a flag salute and pledge of allegiance. Significantly, the Gobitis opinion concluded that [c]onscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities.295
This decision engendered substantial controversy, and the legal and academic community generally disapproved of the decision as an infringement on individual constitutional rights. 296 Some state courts tended to ignore the federal constitutional implications and held that flag-salute requirements violated their own state constitutions.297 Other state courts followed the decision.298 Disenchantment with the Gobitis decision was so great and the constitutional foundation so weak that the case was officially overruled in West Virginia State Board of Education v. Barnette in 1943.299 In reconsideration of the issues, Justice Jackson, writing for a six-person majority, held that a state may require pupils to attend educational exercises based on American history and civics to teach patriotism, but that ceremonies involving compulsory rituals, such as the flag salute, were unconstitutional. Justices Black, Douglas, and Murphy had changed their minds, and even though Justice Frankfurter remained steadfast, the precedent of Gobitis was overturned. The swing vote of the three justices was predictable; a year earlier, in 1942, in Jones v. Opelika,300 the Court announced that “[s]ince we joined in the opinion in the Gobitis case, we think this is an appropriate occasion to state that we now believe that it was . . . wrongly decided.” In 1942, Congress first codified the Pledge of Allegiance. Then, in 1954, Congress amended the pledge to include “under God” after the word Nation at a time “when the government was publicly inveighing against atheistic communism.” When President Eisenhower signed the
bill, he stated, “From this day forward, the millions of our school children will daily proclaim in every city and town, every village and rural schoolhouse, the dedication of our Nation and our people to the Almighty.” In 2002, the U.S. Circuit Court of Appeals for the Ninth Circuit ruled that a school policy requiring teacher-led recitation of the Pledge of Allegiance inserting the words under God violated the Establishment Clause. The court ruled that the policy failed the purpose prong of the Lemon test.301
Required Participation in Flag Salute Is Unconstitutional
West Virginia State Board of Education v. Barnette Supreme Court of the United States, 1943. 319 U.S. 624, 63 S. Ct. 1178.
Mr. Justice JACKSON delivered the opinion of the Court. Following the decision by this Court on June 3, 1940, in Minersville School District v. Gobitis, 310 U.S. 586, 60 S. Ct. 1010, the West Virginia legislature amended its statutes to require all schools therein to conduct courses of instruction in history, civics, and in the Constitutions of the United States and of the State “for the purpose of teaching, fostering and perpetuating the ideals, principles and spirit of Americanism, and increasing the knowledge of the organization and machinery of the government.” Appellant Board of Education was directed, with advice of the State Superintendent of Schools, to “prescribe the courses of study covering these subjects” for public schools. The Act made it the duty of private, parochial and denominational schools to prescribe courses of study “similar to those required for the public schools.” The Board of Education on January 9, 1942, adopted a resolution containing recitals taken largely from the Court’s Gobitis opinion and ordering that the salute to the flag become
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Flag Salute
“a regular part of the program of activities in the public schools,” that all teachers and pupils “shall be required to participate in the salute honoring the Nation represented by the Flag; provided, however, that refusal to salute the Flag be regarded as an Act of insubordination, and shall be dealt with accordingly.” . . . Appellees, citizens of the United States and of West Virginia, brought suit in the United States District Court for themselves and others similarly situated asking its injunction to restrain enforcement of these laws and regulations against Jehovah’s Witnesses. The Witnesses are an unincorporated body teaching that the obligation imposed by law of God is superior to that of laws enacted by temporal government. Their religious beliefs include a literal version of Exodus, Chapter 20, verses 4 and 5, which says: “Thou shalt not make unto thee any graven image, or any likeness of anything that is in heaven above, or that is in the earth beneath, or that is in the water under the earth; thou shalt not bow down thyself to them nor serve them.” They consider that the flag is an “image” within this command. For this reason they refuse to salute it. . . . This case calls upon us to reconsider a precedent decision, as the Court throughout its history often has been required to do. Before turning to the Gobitis case, however, it is desirable to notice certain characteristics by which this controversy is distinguished. The freedom asserted by these appellees does not bring them into collision with rights asserted by any other individual. It is such conflicts which most frequently require intervention of the State to determine where the rights of one end and those of another begin. But the refusal of these persons to participate in the ceremony does not interfere with or deny rights of others to do so. Nor is there any question in this case that their behavior is peaceable and orderly. The sole conflict is between authority and rights of the individual. The State asserts power to condition access to public education on making a prescribed sign and profession and at the same time to coerce attendance by punishing both parent and child. The latter stand on a right of selfdetermination in matters that touch individual opinion and personal attitude. . . . Nor does the issue as we see it turn on one’s possession of particular religious views or the
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sincerity with which they are held. While religion supplies appellees’ motive for enduring the discomforts of making the issue in this case, many citizens who do not share these religious views hold such a compulsory rite to infringe constitutional liberty of the individual. It is not necessary to inquire whether non-conformist beliefs will exempt from the duty to salute unless we first find power to make the salute a legal duty. The Gobitis decision, however, assumed, as did the argument in that case and in this, that power exists in the State to impose the flag salute discipline upon school children in general. The Court only examined and rejected a claim based on religious beliefs of immunity from an unquestioned general rule. The question which underlies the flag salute controversy is whether such a ceremony so touching matters of opinion and political attitude may be imposed upon the individual by official authority under powers committed to any political organization under our Constitution. . . . The Fourteenth Amendment, as now applied to the States, protects the citizen against the State itself and all of its creatures—Boards of Education not excepted. These have, of course, important, delicate, and highly discretionary functions, but none that they may not perform within the limits of the Bill of Rights. That they are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes. . . . The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections. . . . National unity as an end which officials may foster by persuasion and example is not in question. The problem is whether under our Constitution compulsion as here employed is a permissible means for its achievement. . . . If there is any fixed star in our constitutional constellation, it is that no official, high or petty,
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can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us. We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control. The decision of this Court in Minersville School District v. Gobitis and the holding of those few per curiam decisions which preceded and foreshadowed it are overruled, and the judgment enjoining enforcement of the West Virginia Regulation is affirmed. . . .
CASE NOTES 1. When a student was offered the option of either leaving the classroom or standing silently during the Pledge of Allegiance, the court held that to leave the classroom is a benign type of punishment for nonparticipation, whereas to compel the student to stand in silence was to compel an act of acceptance of the pledge over the student’s deeply held contrary convictions. The requirement of the school was therefore unconstitutional, regardless of option. Goetz v. Ansell, 477 F.2d 636 (2nd Cir. 1973). See also: Freedom from Religion Foundation v. Hanover School Dist., 665 F.Supp.2d 58 (D.N.H. 2009). 2. It is clear under Barnette that the state cannot compel a student to recite the Pledge of Allegiance, but can a student who objects to the content of the Pledge prevent the teacher and other students from reciting it in his or her presence? The U.S. Court of Appeals, Seventh Circuit, has answered this question in the negative. This court said: By remaining neutral on religious issues, the state satisfies its duties under the free exercise clause. All that remains is Barnette itself, and so long as the school does not compel pupils to espouse the content of the Pledge as their own belief, it may carry on with patriotic exercises. Objection by the few does not reduce to silence the many who want to pledge allegiance to the flag “and to the Republic for which it stands.”
According to this court, the reference “under God,” because of its “history and ubiquity,” is not understood to convey approval of any particular religious belief. Sherman v. Community Consolidated School District 21, 980 F.2d 437 (7th Cir. 1992). 3. A student cannot be punished for “unpatriotic views.” Where a student raised his fist but remained silent while others in class recited the Pledge and was subsequently punished by paddling, the federal circuit court ruled that the student’s free speech rights had been violated. The student’s actions did not constitute a disruption of the school and he could not be punished simply for his “unpatriotic views.” Holloman v. Harland, 370 F.3d 1252 (11th Cir. 2004). 4. According to the U.S. Court of Appeals, Fourth Circuit, the Pledge of Allegiance, with the words under God, does not constitute a prayer and does not violate the Establishment Clause. In Virginia a law provides for daily, voluntary recitation of the Pledge and placement of the U.S. flags in each public school classroom. A parent, an Anabaptist Mennonite, sued claiming that the Pledge was state indoctrination of children with a “God and Country” worldview that violated tenets of the Mennonite Confession of Faith. The federal court held against the parent concluding that the fleeting reference to God did not make the Pledge a daily prayer. Citing Justice Sandra Day O’Connor characterization of the words under God as a “legitimate secular way of solemnizing public occasions,” the court noted that the Pledge was a statement of loyalty to the United States and its flag and should not be viewed as religious worship. Myers v. Loudoun County Public Schools, 418 F.3d 395 (4th Cir. 2005).
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Summation of Case Law
Public Funding of Religion: Establishment Clause Everson 1. The “establishment of religion” clause of the First Amendment means that neither a state nor the federal government can set up a church, and neither can pass laws which aid
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Summation of Case Law
one religion, aid all religions, or prefer one religion over another. 2. The “establishment of religion” clause of the First Amendment means that neither a state nor the federal government can force nor influence a person to go to or to remain away from church against his will or force him to confess a belief or disbelief in any religion. 3. The “establishment of religion” clause of the First Amendment means that no tax in any amount can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. 4. The “establishment of religion” clause of the First Amendment does not prohibit a state from spending tax-raised funds to pay the bus fares for parochial school pupils as a part of a general program under which the state pays the fares of pupils attending public and other schools. Allen
A state statute requiring a public school authority to lend textbooks free of charge to students in parochial schools was not a “law respecting an establishment of religion, or prohibiting the free exercise thereof” in conflict with the federal Constitution. Lemon
1. The Establishment Clause of the First Amendment was intended to afford protection against sponsorship, financial support, and active involvement of the sovereign in religious activity. 2. To avoid conflict with the religion clauses of the First Amendment, a statute must have (1) secular legislative purpose, (2) its principal or primary effect must be one that neither advances nor inhibits religion, and (3) it must not foster excessive government entanglement with religion. 3. Programs of state financial aid to nonpublic schools, having self-perpetuating and selfexpanding propensities, present more danger that they will, contrary to the First Amendment, lead to the establishment of state churches and state religion than do the longestablished benefits involved in tax exemption for places of religious worship.
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Mueller
1. Any program which in some manner aids institutions with religious affiliation does not necessarily violate the Establishment Clause. 2. A state may constitutionally reimburse parents for expenses incurred in transporting their children to school and may loan secular textbooks to all schoolchildren within the state. 3. Where aid to parochial schools is available only as result of decisions of individual parents, no “imprimatur of State approval” can be deemed to have been conferred on any particular religion, or on religion generally, in violation of the Establishment Clause. 4. The “divisive political potential” test of constitutionality under the Establishment Clause is confined to cases in which direct financial subsidies are paid to parochial schools or to teachers in parochial schools. Agostini
1. Entanglement between church and state must be excessive before it runs afoul of the Establishment Clause. 2. The stare decisis doctrine did not preclude the Supreme Court from recognizing substantial change in Establishment Clause jurisprudence and overruling earlier cases inconsistent with the Supreme Court’s more recent Establishment Clause decisions that permit state financial aid to parochial schools. 3. The stare decisis doctrine is not an inexorable command, but instead reflects policy judgment that in most matters it is more important that applicable rule of law be settled than that it be settled right. 4. A board of education’s program of sending public school teachers into parochial schools to provide remedial education to disadvantaged children pursuant to a program mandated by Title I of the ESEA did not violate the Establishment Clause. The program did not result in governmental indoctrination, define its recipients by reference to religion, or create excessive entanglement, and the program could not be viewed as an endorsement of religion. Helms
1. The Establishment Clause does not require the exclusion of pervasively sectarian schools from otherwise permissible public aid programs.
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2. If public aid to schools, even “direct aid,” is neutrally available and, before reaching or benefiting any clerical school, it first passes through the hands, literally or figuratively, of numerous private citizens who are free to direct the aid elsewhere, the government has not provided “support of religion” for Establishment Clause purposes.
2. An expenditure under statute authorizing distribution of free textbooks to Catholic schools violates the section of the state constitution prohibiting use of public money for benefit of any religious institution. 3. The denial of the use of free textbooks to pupils solely because they attend Catholic schools does not deny those pupils Equal Protection.
Zelman
1. A school voucher program, enacted for a valid secular purpose of providing educational assistance to poor children, did not violate the Establishment Clause, even though the majority of participating students had enrolled in Catholic schools. 2. Where a government aid program is neutral with respect to religion, and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice, the program is not subject to challenge under the Establishment Clause. Independent Vitality of State Constitution Chittenden
1. Public funds may not pay for religious worship within the meaning of a state constitution’s compelled support clause, that provides that no person can be compelled to support any place of religious worship, wherever such worship occurs. 2. A tuition payment scheme for sectarian schools that does not offend the First Amendment is not consistent with the compelled support clause of a state constitution, whatever their interrelationship. 3. There is no way to separate religious instruction from religious worship for purposes of a compelled support clause of a state constitution, providing that no person can be compelled to support any place of religious worship. Dickman
1. A constitutional prohibition against the use of public money for religious institutions requires a state to be neutral in its relations with groups of religious believers and nonbelievers.
Released Time for Religious Services in Public Schools McCollum
1. A program whereby pupils were compelled by a state’s compulsory education system to go to school for secular education, but were released temporarily from secular study on condition that they attend religious classes conducted in the public school building involved a utilization of a tax-supported public school system to aid religious groups to spread their faith and violated the establishment of religious clause of the First Amendment. 2. The federal constitutional principle of separation of church and state is violated where public school buildings are used for dissemination of religious doctrines and state’s compulsory education system helped to provide pupils for religious classes of sectarian groups. Zorach
1. A state statute providing for the release of public school pupils from school attendance to attend religious classes is constitutional. 2. The validity of a statutory “released time” program for religious instruction of public school children, off school grounds, did not implicate school authorities in use of coercion and was not violative of the Free Exercise Clause. Prayer and Bible Reading Abington Township
1. The Free Exercise Clause of the First Amendment, like the Establishment Clause, withdraws from legislative power, state and federal, the exertion of any restraint on free exercise of religion. 2. The purpose of the Free Exercise Clause of the First Amendment is to secure religious liberty
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Summation of Case Law
3.
4.
5.
6.
in the individual by prohibiting any invasion thereof by civil authority. It is necessary in a case under the Free Exercise Clause for one to show a coercive effect of a state enactment as it operates against him or her in the practice of religion and the violation of the Free Exercise Clause is predicated on coercion, whereas the Establishment Clause violation need not be so attended. The practices of selection and reading of verses of the Bible and the recitation, by students in unison, of the Lord’s Prayer, at opening of school day, as part of curricular activities of students required by law to attend school, were religious in character and they and the laws requiring them were unconstitutional under the Establishment Clause of the First Amendment. The fact that individual students could absent themselves from religious exercises in public schools upon parental request furnished no defense to the claim of unconstitutionality under the Establishment Clause. The study of the Bible for its literary and historic qualities and study of religion, when presented objectively as part of secular program of education, may be effected consistent with the First Amendment.
Ten Commandments in Public School
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3. A state statute authorizing a daily period of silence in public schools for meditation or voluntary prayer was an endorsement of religion lacking any clearly secular purpose, and thus was a law respecting the establishment of religion in violation of the First Amendment. Nonsectarian Prayer by Clergy Weisman
1. It is beyond dispute that, at a minimum, the Constitution guarantees that the government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which establishes state religion or religious faith or tends to do so. 2. The Establishment Clause prohibits public school students from being exposed to religion in the form of “nonsectarian” prayer given by a school-selected clergyman at the graduation ceremony. 3. A requirement that students stand and remain silent during the giving of “nonsectarian” prayer at a graduation ceremony in a public school violates the Establishment Clause, even though attendance at the ceremony is completely voluntary. A student is not required to give up attendance at a ceremony, an important event in his or her life, in order to avoid unwanted exposure to religion.
Stone
1. A state statute requiring the posting of a copy of the Ten Commandments on the walls of each public school classroom in the state had a preeminent purpose which was plainly religious in nature, and the statute was thus violative of the Establishment Clause. 2. To induce schoolchildren to read, meditate upon, perhaps to venerate and obey, the Ten Commandments is not a permissible state objective under the Establishment Clause. Meditation Jaffree
1. An individual’s freedom to choose his or her own creed is counterpart of his or her right to refrain from accepting a creed established by the majority. 2. The individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all.
Student-Led Invocations Santa Fe
1. Freedom of religion is a fundamental right and fundamental rights may not be submitted to vote; they depend on the outcome of no elections. 2. The Establishment Clause forbids a state to hide behind the application of formally neutral criteria and remain studiously oblivious to the effects of its actions. 3. In cases involving state participation in a religious activity, one of the relevant questions is whether an objective observer, acquainted with the text, legislative history, and implementation of the statute, would perceive it as a state endorsement of prayer in public schools. 4. A public school district’s policy of permitting student-led, student-initiated invocations or statements before high school football games lacked a valid secular purpose, but was
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instead implemented with purpose of endorsing school prayer, in light of text of the policy, which reflected district’s involvement in election of the speaker and content of the message and the evolution of the policy, which had arisen in response to the issue of school prayer. Equal Access Act Mergens
1. The Equal Access Act requirement that student religious groups be given the same access to schools as other noncurriculum-related student groups does not risk excessive entanglement between government and religion. 2. The prohibition of the Equal Access Act of discrimination against student groups on the basis of political, philosophical, or other speech, as well as religious speech, showed a secular purpose for the Act. 3. Even though some members of Congress were motivated by a conviction that religious speech in particular is valuable and worthy of protection, that alone would not invalidate the Equal Access Act. 4. The Equal Access Act does not have the primary effect of advancing religion, even though student religious meetings would be held under school aegis and state compulsory attendance laws bring the students together. 5. The Equal Access Act requirement that schools which create a limited open forum for noncurriculum-related student groups, and must provide equal access to student religious groups, does not violate the Establishment Clause. 6. The term curriculum related as used in the Equal Access Act does not include everything remotely related to abstract educational goals. 7. A scuba diving club for high school students did not directly relate to the curriculum and was a “noncurriculum-related student group” whose existence triggered the school’s obligations under the Equal Access Act. Good News Club
1. If a forum is a traditional or open public forum, the state’s restrictions on speech are subject to stricter scrutiny than are restrictions in a limited public forum. 2. When the state establishes a limited public forum, the state is not required to and does not allow persons to engage in every type of
speech, and may be justified in reserving its forum for certain groups or for the discussion of certain topics, but the restriction must not discriminate against speech on the basis of viewpoint, and must be reasonable in light of the purpose served by the forum. 3. Public school’s exclusion of a Christian children’s club from meeting after hours at school based on its religious nature was unconstitutional viewpoint discrimination, where school had opened its limited public forum to activities that served a variety of purposes. 4. A speech discussing otherwise permissible subjects cannot be excluded from a limited public forum on the ground that the subject is discussed from a religious viewpoint. Flag Salute Barnette
1. The purpose of the Bill of Rights is to withdraw certain subjects from the vicissitudes of the political controversy and to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. 2. One’s right to life, liberty, and property; to free speech; a free press; freedom of worship and assembly; and other fundamental rights may not be submitted to vote, and they depend on the outcome of no election. 3. A resolution of a state board of education requiring children, as prerequisite to continued attendance at public school, to salute the American flag and give pledge, is invalid.
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Research Aids
Research citations below are abbreviated as: American Law Reports (A.L.R.), American Jurisprudence (Am.Jur.), Corpus Juris Secundum (C.J.S.), and McQuillen Municipal Corporations (McQuillen Mun.Corp.). Explanations for each of these sources of law are found in Chapter 1 of this text. Also, see Appendix B of this book. 41 A.L.R.3d. 344. Constitutionality, Under State Constitutional Provision Forbidding Financial Aid to Religious Sects, of Public Provision of School Bus Service for Private School Pupils.
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Endnotes
68 Am.Jur.2d Schools § 456. Schools, Religion and the First Amendment: State Aid to and Regulation of Religiously Oriented Schools. 78A C.J.S. Schools and School Districts § 1116. Private Schools, Public Aid: Transportation. 16A C.J.S. Constitutional Law § 753. Religious Liberty and Freedom of Conscience: In General. 16A Am.Jur.2d Constitutional Law § 417. Fundamental Rights and Privileges: Federal Constitutional Guarantees. 15 A.L.R. Fed.2d 573. Construction and Application of Establishment Clause—Supreme Court Cases. 93 A.L.R.2d 986. Furnishing Free Textbooks to Sectarian Schools or Students Therein. 16B McQuillen Mun.Corp. § 46.02.40 (3rd ed.). Public Schools and Religion. 16A C.J.S. Constitutional Law § 764. Religious Liberty and Freedom of Conscience: Particular Subjects Affected, Education. 16A C.J.S. Constitutional Law § 754. Establishment of Religion: Lemon Three-part Test. 16A Am.Jur.2d Constitutional Law § 438. Fundamental Rights and Privileges: Establishment of Religion, Lemon Test and its Modifications. 78 A.L.R.5th 133. Validity and Construction of School Choice Programs: Post-Lemon. 81 A.L.R.2d 1309. Public Payment of Tuition, Scholarship—as Respects Sectarian Schools. 71 Am.Jur.2d State and Local Taxation § 480. Income Taxes: Personal Deductions. 67B Am.Jur.2d Schools § 379. Federal Assistance Mandates: No Child Left Behind Act. 78A C.J.S. Schools and School Districts § 1012. Admission and Attendance of Pupils: Payment for Tuition and Other School Purposes. 39 Am.Jur. Colleges § 39. Governmental Appropriations: Public Aid to Sectarian Institutions, Aid to Religion. 81 C.J.S. States § 333. Fiscal Management: Legislative Power—Limitations on Use of Funds or Credit. 2 A.L.R.2d 1371. Right of School Authorities to Release Pupils During School Hours for Purpose of Attending Religious Education Classes. 68 Am.Jur.2d Schools § 454. “Released Time” Programs for Religious Instruction. 63 Am.Jur. Proof of Facts 3d 195. Interference with the Right to Free Exercise of Religion.
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25 Causes of Action 2d 221. Cause of Action to Prevent the Display of Religious Symbols on Public Property. 16 Am.Jur.2d Constitutional Law § 452. Erection, Maintenance or Display of Religious Symbols on Public Property. 107 A.L.R.5th 1. First Amendment Challenges to Display of Religious Symbols on Public Property. 110 A.L.R. Fed. 211. Constitutionality of Regulation or Policy Governing Prayer, Meditation or “Moment of Silence” in Public Schools. 68 Am.Jur.2d Schools § 437. Moment-ofSilence Provisions. 98 A.L.R. Fed. 206. Giving of Invocation with Religious Content at Public Schools. 762 C.J.S. Constitutional Law § 762. Prayer and Other Religious Observances. 174 A.L.R. Fed. 407. Validity, Construction, and Application of Equal Access Act. 67B Am.Jur.2d Schools § 104. Limited Open Forum: Equal Access Act. 66 Am.Jur.2d Religious Societies § 31. Meetings in Public Schools.
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Endnotes
1. The authors are indebted to Professor Paul M. Secunda for providing this clarifying statement regarding world religious strife. 2. The Economist, July 22–28, 1995, pp. 15–16. 3. Samuel P. Huntington, The Clash of Civilizations and the Remaking of the World Order (London: Simon & Schuster, 1997), p. 47. 4. Ibid., p. 208. 5. The Economist, “God Meets the Lawyers,” December 6, 2003, p. 48. 6. Ibid. 7. The Economist, October 7–13, 1995, p. 58. 8. Harvey Cox, “The Warring Visions of the Religious Right,” Atlantic Monthly, November 1995, pp. 59–69. 9. Reynolds v. United States, 98 U.S. (8 Otto) 145 (1879). 10. Everson v. Board of Education, 330 U.S. 1, 67 S. Ct. 504 (1947). 11. Wallace v. Jaffree, 472 U.S. 38, 107, 105 S. Ct. 2517. 12. Evarts B. Green, Religion and the State in America (New York: New York University Press, 1941), p. 83. 13. Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution, 2nd ed. (Philadelphia, Penn.: J. B. Lippincott & Co., 1988), p. 131. 14. Leo Pfeffer, Church, State and Freedom (Boston: Beacon Press, 1967), p. 123. 15. R. Freeman Butts, The American Tradition in Religion and Education (Boston: Beacon Press, 1950), p. 72.
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16. Pfeffer, Church, State and Freedom, p. 125. 17. Ibid. 18. Ibid., p. 126. 19. R. Freeman Butts and Lawrence A. Cremin, A History of Education in American Culture (New York: Henry Holt and Co., 1953), p. 15. 20. Ibid., p. 22. 21. Ibid., p. 21. 22. Ibid. 23. Pfeffer, Church, State and Freedom, p. 26. 24. John Locke, Letter Concerning Toleration, 1679. Reprinted in Locke Political Essays, ed. Mark Goldie (Cambridge: Cambridge University Press, 2002) pp. 276–277. 25. Saul K. Padover, The Complete Jefferson (New York: Duell, Sloan & Pearce, 1943). 26. Ibid. 27. Pfeffer, Church, State and Freedom, p. 109. 28. Decl. Rights, Art. 16. [Note in the original.] 29. Ibid. 30. Daniel Roche, France in the Enlightenment, trans. Arthur Goldhammer (Cambridge, Mass.: Harvard University Press, 1998), p. 339. 31. Isser Woloch, The New Regime: Transformations of the French Civic Order, 1789–1820’s (New York: W. W. Norton, 1994), p. 174. 32. Ibid. 33. Ibid. 34. Ibid. 35. Ibid., p. 195. 36. Ibid. 37. Ibid. 38. Ibid. 39. Ibid. 40. Henry Steele Commager, The Empire of Reason: How Europe Imagined and America Realized the Enlightenment (Garden City, N.Y.: Anchor Press/Doubleday, 1978). 41. Ibid., p. 250. 42. Ibid., p. 229. 43. Ibid. 44. Ibid., p. 230. 45. Ellwood P. Cubberley, Public Education in the United States (Boston: Houghton Mifflin, 1934), p. 163. 46. Ibid., p. 166. 47. Ibid., p. 234. 48. Ibid. 49. Ibid. 50. Ibid. 51. Vincent P. Lannie, Public Money and Parochial Education (Cleveland, Ohio: Press of Case Western Reserve University, 1968), p. 62. 52. Ibid., p. 88. 53. Ibid., p. 90. 54. Agostini v. Felton, 521 U.S. 203, 117 S. Ct. 1997 (1997). 55. Mitchell v. Helms, 530 U.S. 793, 120 S. Ct. 2530 (2000). 56. Zelman v. Simmons-Harris, 536 U.S. 639, 122 S. Ct. 2460 (2002). 57. Knowlton v. Baumhover, 182 Iowa 691, 166 N.W. 202 (1918). 58. Ibid.
59. Prince v. Massachusetts, 321 U.S. 158, 64 S. Ct. 438 (1944). 60. Pfeffer, op. cit., p. 338. 61. Wisconsin v. Yoder, 406 U.S. 205, 92 S. Ct. 1526 (1972). 62. Cochran v. Louisiana State Board of Education, 281 U.S. 270, 50 S. Ct. 335 (1930). 63. Cantwell v. Connecticut, 310 U.S. 296, 60 S. Ct. 900 (1940). 64. Board of Education of Central School District No. 1 v. Allen, 392 U.S. 236, 88 S. Ct. 1923 (1968). 65. Board of Education of Central School District No. 1 v. Allen, 392 U.S. 236, 88 S. Ct. 1923 (1968). 66. Ibid. 67. Sloan v. Lemon, 413 U.S. 825, 93 S. Ct. 2982, reh’g denied, 414 U.S. 881, 94 S. Ct. 30 (1973); Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S. 756, 93 S. Ct. 2955 (1973). 68. Kosydar v. Wolman, 353 F. Supp. 744 (S.D. Ohio 1972). 69. Ibid., aff’d sub nom., Grit v. Wolman, 413 U.S. 901, 93 S. Ct. 3062 (1973). 70. Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S. 756, 93 S. Ct. 2955 (1973). 71. Byrne v. Public Funds for Public Schools, 442 U.S. 907, 99 S. Ct. 2818 (1979), aff’g 590 F.2d 514 (3d Cir. 1979). 72. Mueller v. Allen, 463 U.S. 388, 103 S. Ct. 3062 (1983). 73. Ibid. 74. Board of Education of Central School District No.1 v. Allen, 392 U.S. 236, 88 S. Ct. 1923 (1968). 75. School District of the City of Grand Rapids v. Ball, 473 U.S. 373, 105 S. Ct. 3216 (1985). 76. Aguilar v. Felton, 473 U.S. 402, 105 S. Ct. 3232(1985). 77. Wallace v. Jaffree, 472 U.S. 38, 107, 114, 105 S. Ct. 2479, 2516, 2519 (1985). 78. Ibid. 79. Leonard Levy, The Establishment Clause, Religion and the First Amendment (New York: Macmillan Publishing Co., 1986), p. 92. 80. Marsh v. Chambers, 463 U.S. 783, 103 S. Ct. 3330 (1983). 81. Larson v. Valente, 456 U.S. 228, 102 S. Ct. 1673(1982). 82. Committee for Public Education and Religious Liberty v. Nyquist, op. cit. 83. Mueller v. Allen, op. cit. 84. Lynch v. Donnelly, 465 U.S. 668, 104 S. Ct. 1355(1984). 85. Lee v. Weisman, 505 U.S. 577, 112 S. Ct. 2649 (1992). 86. Ibid., 112 S. Ct. at 2650. 87. Ibid., 112 S. Ct. at 2655. 88. Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 113 S. Ct. 2141 (1993). 89. Ibid., 113 S. Ct. at 2149–50. 90. Board of Education of Kiryas Joel Village School District v. Grumet, 62 U.S. 4665, 114 S. Ct. 2481 (1994). 91. Ibid., 114 S. Ct. at 2487. 92. Ibid., 114 S. Ct. at 2483. 93. Ibid., 114 S. Ct. at 2484. 94. 1997 WL 338583 (U.S.), June 23, 1997, 97 Cal. Daily Op. Serv. 4765, Daily Journal D.A.K. 7843. 95. Witters v. Washington Department of Services for the Blind, 474 U.S. 481, 106 S. Ct. 748 (1986). 96. Zobrest v. Catalina Foothills School District, 509 U.S. 1, 113 S. Ct. 2462 (1993). 97. Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819, 115 S. Ct. 2510 (1995).
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Endnotes 98. Board of Education of Kiryas Joel Village School District v. Grumet, 512 U.S. 687, 114 S. Ct. 2481 (1994). 99. Aguilar v. Felton, 473 U.S. 402, 105 S. Ct. 3232 (1985). 100. School District of the City of Grand Rapids v. Ball, 473 U.S. 373, 105 S. Ct. 3216 (1985). 101. See Witters v. Washington Department of Services for the Blind, 474 U.S. 481, 485, 106 S. Ct. at 750 (1986); Bowen v. Kendrick, 487 U.S. 589, 108 S. Ct. 2562 (1988); Board of Education of Westside Community Schools v. Mergens, 496 U.S. 226, 115 S. Ct. 2356 (1990). 102. Mitchell v. Helms, op. cit. 103. Agostini v. Felton, 521 U.S. 203, 117 S. Ct. 1997 (1997). 104. 503 U.S. 793, 120 S. Ct. 2530 (2000). 105. 540 U.S. 712, 124 S. Ct. 1307 (2004). The Plaintiff in Davey sought to have a state scholarship program declared unconstitutional as violative of the Free Exercise and Establishment Clauses because it excluded funding of scholarships for students pursuing devotional theology degrees. The plaintiff claimed that for the state not to give scholarship money for a religious purpose violated the U.S. Constitution. Even though the Court ruled against the plaintiff, the fact that the case was accepted by the Supreme Court and even considered evidences an important change in the Supreme Court’s view of separation of church and state. 106. Washington is one of the states that have a very specific prohibition against aid to religion. 107. Witters v. Washington Department of Services for the Blind, op. cit.; Zobrest v. Catalina Foothills School District, op. cit.; Agostini v. Felton, op. cit.; Mitchell v. Helms, op. cit.; Zelman v. Simmons-Harris, op. cit. 108. Mitchell v. Helms, op cit. 109. 44 Congressional Record, December 14, 1875, 44th Congress, 1st Session, Amendment Congressional Record, 1875. 110. Edward P. Carpol, James G. Blaine: Architect of Empire, (Wilmington, Delaware: SR Books, 2000). 111. Ibid., p. 20. 112. Ibid. 113. Ibid., p. 21., See: Congressional Globe, 38th Congress, 1st Session, Part 2, (Washington, DC, 1864), pp. 1797–1800. 114. Lewis L. Gould, Grand Old Party: A History of the Republicans (New York: Random House, 2003), p. 49. 115. James G. Blaine, Twenty Year of Congress: From Lincoln to Garfield (Norwich, CT.; Henry Bill Publishing Company, 1886), vol. 2, p. 340. 116. Amendment XIV, Sec. 2 (1868). 117. Kenneth D. Ackerman, Dark Horse: The Surprise Election and Political Murder of President James A. Garfield (New York: Carroll & Graf Publishers, 2004), p. 486. 118. Robert Kagan, Dangerous Nation (New York: Alfred A. Knopf, 2006). 119. Ibid. 120. Morton Keller, Affairs of State: Public Life in Late Nineteenth Century America (Cambridge, Mass.: Harvard University Press, 1977), p. 4. 121. Kagan, op. cit., p. 281. 122. Henry Blumenthal, A Reappraisal of Franco-American Relations, 1830–1871 (Chapel Hill: University of North Carolina Press, 1959), p. 189. 123. Smith, op cit., pp. 568–569. 124. Ibid.
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125. Ibid. 126. Ibid., p. 569. 127. S t e v e n K . G re e n , “ T h e B l a i n e A m e n d m e n t Reconsidered,” 36 American Journal of Legal History, pp. 38–39 (1992). 128. Smith, op cit., p. 569, cited from the text of Grant’s speech to the army of Tennessee, Des Moines, Iowa, September 30, 1875, reprinted in Harper’s Weekly, October 30, 1875. 129. Ibid., p. 569, citing Grant, op cit. 130. Ibid. 131. Ibid. 132. Ibid., pp. 569–570. 133. Ibid., p. 570. 134. Ibid., p. 571. 135. The text of the Blaine Amendment provided: No State shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof; and no money raised by taxation in any State for the support of public schools, or derived from any public fund therefore, nor any public lands devoted thereto, shall ever be under the control of any religious sect or denomination; nor shall any money so raised or lands so devoted be divided between religious sects or denominations. This article shall not vest, enlarge, or diminish legislative power in the Congress. 136. See: Santa Fe Independent School District v. Doe, 530 vs. 290 (2000), and Lee v. Weisman, 505 U.S. 577 (1992). 137. John T. McGreevy, Catholicism and American Freedom (New York: W.W. Norton and Company, 2003), pp. 110–111. 138. Ibid, p. 111. 139. Ibid. 140. Slaughterhouse Cases, 16 Wall. (83 U.S.) 36 (1873). 141. Kermit L. Hall, et al. (eds.), The Oxford Companion to the Supreme Court of the United States (New York: Oxford University Press, 1992), p. 310. 142. Frank Lambert, The Founding Fathers and the Place of Religion in America (Princeton and Oxford: Princeton University Press, 2003), p. 238. 143. Ibid., p. 238. 144. Ibid., p. 270. 145. Ibid., p. 238. 146. Leonard W. Levy, Origins of The Bill of Rights (New Haven and London: Yale University Press, 1999), p. 102. 147. Leonard W. Levy, Constitutional Opinions: Aspects of the Bill of Rights (New York: Oxford University Press, 1986), p. 142. 148. Ibid., p. 144. 149. Ibid. 150. Ibid. 151. Ibid., p. 148. 152. Ibid. 153. Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (New York: Vintage Books, A Division of Random House, Inc., 1997), p. 312. 154. Ibid. 155. See Erwin Chemerinsky, Constitutional Law, Principles and Policies (New York: Aspen Law & Business, 2002), p. 1149. 156. Everson v. Board of Education, 330 U.S. 1, 67 S. Ct. 504 (1947).
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157. Reynolds v. United States, 98 U.S. 145, 8 Otto 145, 25 L. Ed. 244 (1878). 158. Everson v. Board of Education, op. cit. 159. Ibid. 160. Marsh v. Chambers, 463 U.S. 783, 103 S. Ct. 3330 (1983). 161. Ibid. 162. Mueller v. Allen, op. cit. 163. Philip Kurland, “Of Church and State and the Supreme Court,” 29 U. Chi. L. Rev. 1, 96 (1961). 164. Wallace v. Jaffree, 472 U.S. 38, 105 S. Ct. 2479 (1985). 165. Ibid. 166. Lynch v. Donnelly, 465 U.S. 668, 104 S. Ct. 1355 (1984). 167. Erwin Chemerinsky, Constitutional Law: Principles and Policies, 2d ed. (New York: Aspen Law & Business, 2002), p. 1153. 168. Leonard W. Levy, Origins of the Bill of Rights (New Haven: Yale University Press, 2001), p. 87. 169. Ibid., p. 87. 170. Ibid., p. 92. 171. Chemerinsky, op. cit., p. 1153. 172. Lee v. Wisconsin, 505 U.S. 577, 112 S. Ct. 2469 (1992). 173. Ibid. 174. Locke v. Davey, 540 U.S. 712, 124 S. Ct. 1307 (2004). 175. Isser Woloch, The New Regime, Transformations of the French Civic Order, 1789–1820’s (New York: W.W. Norton & Co., 1994), p. 180. The Bougier Law was adopted by the Convention on December 19, 1793. 176. Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686 (1954). 177. Griffin v. County School Board of Prince Edward County, 377 U.S. 218, 84 S. Ct. 1226 (1964), rev’g County School Board of Prince Edward County v. Griffin, 204 Va. 650, 133 S.E.2d 565 (1963). 178. County School Board of Prince Edward County v. Griffin, 204 Va. 650, 133 S.E.2d 565 (1963), rev’d sub. nom., Griffin v. County School Board of Prince Edward County, 377 U.S. 218, 84 S. Ct. 1226 (1964). 179. Griffin v. County School Board of Prince Edward County, op. cit., rev’g County School Board of Prince Edward County v. Griffin, op. cit. 180. James S. Coleman, Thomas Hoffer, and Sally Kilgore, High School Achievement, Public, Catholic and Private Schools Compared (New York: Basic Books, Inc., 1982). 181. See Joseph E. Stiglitz, Whither Socialism? (Cambridge, Mass.: The M.I.T. Press, 1996), pp. 173–178, 262. See also Joseph E. Stiglitz, Globalization and Its Discontents (New York: W.W. Norton & Co., 2003), p. 76. 182. See Craig Timberg, “Williams Sheds Light on Vouchers’ Stance,” Washington Post, May 3, 2003, p. B1. 183. U.S. Department of Education, “A New Era: Revitalizing Special Education for Children and Families,” Presidential Commission on Excellence in Special Education, July 2002. 184. Jackson v. Benson, 578 N.W.2d 602 (Wis. 1998), cert. denied, 537 U.S. 1106, 123 S. Ct. 851 (2003). 185. Ibid. 186. Ibid. 187. Zelman v. Simmons-Harris, 536 U.S. 639, 122 S. Ct. 2460 (2002). 188. Ibid. 189. Ibid.
190. William J. Brennan, Jr., “State Constitutions and the Protection of Individual Rights,” 90 Harv. L.Rev. 489, (1977). 191. Clint Bolick, “Brennan’s Epiphany: The Necessity of Invoking State Constitutions to Protect Freedom,” Texas Review of Law and Politics, Vol 12, p. 137 (2007). 192. Brennan, op. cit., p. 550. 193. Rhode Island Constitution, Article 1, § 3. 194. Bowerman v. O’Connor, 104 R.I. 519, 247 A.2d 82 (1968). 195. Constitution of Illinois, Article 1, § 3. 196. Board of Education v. Bakalis, 54 Ill. 2d 448, 299 N.E.2d 737 (1973). See A. E. Dick Howard, State Aid to Private Higher Education (Charlottesville, Va.: Michie, 1977), p. 254. 197. Lemon v. Kurtzman, op. cit. 198. Snyder v. Town of Newton, 147 Conn. 374, 161 A.2d 770 (1960), appeal dismissed, 365 U.S. 299, 81 S. Ct. 692 (1961). 199. Ibid., 161 A.2d at 774–75. 200. Ibid. 201. Article I, § 3, Constitution of Iowa; Knowlton v. Baumhover, 166 N.W. 202 (Iowa 1918). See also Howard, State Aid, p. 303. Howard states that Article I, § 3 of the Iowa Constitution has the same meaning as the U.S. Supreme Court’s interpretation of the First Amendment. 202. Howard, State Aid, p. 314; see Wright v. School District, 151 Kan. 485, 99 P.2d 737 (1940). 203. Squires v. City of Augusta, 155 Me. 151, 153 A.2d 80 (1959); Opinion of the Justices, 261 A.2d 58 (Me. 1970). 204. In re Opinion on the Constitutionality of Amendatory Act. No. 100 in the Public Acts of 1970, 384 Mich. 82, 180 N.W.2d 265 (1970). 205. Americans United Inc. v. Independent School District No. 622, 288 Minn. 196, 179 N.W.2d 146 (1970). 206. Everson v. Board of Education, op. cit. 207. State ex rel. Warren v. Nusbaum (III), 64 Wis. 2d 314, 219 N.W.2d 577 (1974). 208. Mueller v. Allen, op. cit. 209. San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S. Ct. 1278, reh’g denied, 411 U.S. 959, 93 S. Ct. 1919 (1973). 210. University of the Cumberlands v. Rev. Albert M. Pennypacker, et al., University of the Cumberlands v. Rev. Albert M. Pennypacker, et al., 308 S.W. 668 (Ky. S. Ct. 2010). 211. Ibid. 212. Mitchell v. Helms, 530 U.S. 793, 120 S. Ct. 2530 (2000). 213. Matthews v. Quinton, 362 P.2d 932 (Alaska 1961), cert. denied, appeal dismissed, 368 U.S. 517, 82 S. Ct. 530 (1961). 214. Ibid. 215. Alaska Constitution, Article VII, § 1. See Howard, State Aid, pp. 98–99. It should be noted that the Alaska legislature apparently violated this constitutional provision when, in 1972, it enacted a law that provided aid for transportation of children attending non-public school. 216. People ex rel. Vollmar v. Stanley, 81 Colo. 276, 255 P. 610 (1927); Howard, State Aid, pp. 154–157. 217. West’s Colo. Rev. Stat. Ann. Constitution, Article IX, § 7. 218. Spears v. Honda, 51 Haw. 1, 449 P.2d 130 (1968). 219. Ibid. 220. Board of County Commissioners v. Idaho Health Facilities Authority, 96 Idaho 498, 531 P.2d 588 (1974). 221. Knowlton v. Baumhover, 182 Iowa 691, 166 N.W. 202 (1918).
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Endnotes 222. Board of Education of Central School District No. 1 v. Allen, 392 U.S. 236, 88 S. Ct. 1923 (1968). 223. See Howard, State Aid, p. 300. 224. Knowlton v. Baumhover, op. cit. 225. Opinion of the Justices to the Senate, 401 Mass. 1201, 514 N.E.2d 353 (1987). 226. Opinion of the Justices, 357 Mass. 836, 258 N.E.2d 779 (1970). 227. Attorney General v. School Committee of Essex, 387 Mass. 326, 439 N.E.2d 770 (1982). 228. Opinion of the Justices to the Senate, op. cit. 229. Opinion of the Justices, 357 Mass 846, 259 N.E.2d 564 (1970). 230. Ibid. 231. Paster v. Tussey, 512 S.W.2d 97 (Mo. 1974), cert. denied, 419 U.S. 1111, 95 S. Ct. 785 (1975). 232. Harfst v. Hoegen, 349 Mo. 808, 163 S.W.2d 609, 614 (1941), Berghorn v. Reorganized School District No. 8, 364 Mo. 121, 260 S.W.2d 573, 582-83 (1953). 233. Paster v. Tussey, 512 S.W.2d at 101–2. 234. State ex rel. Chambers v. School District No. 10, 155 Mont. 422, 472 P.2d 1013 (1970). 235. Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105 (1971). 236. Article V, § II(5). 237. Howard, State Aid, p. 250. 238. Ibid., p. 987. 239. Dickman v. School District No. 62 C, 232 Or. 238, 366 P.2d 533 (1961), cert. denied, 371 U.S. 823, 83 S. Ct. 41 (1962); see also Fisher v. Clackamas County School, 13 Or. App. 56, 507 P.2d 839 (1973). 240. Abington Township v. Schempp, 374 U.S. 203, 83 S. Ct. 1560 (1963). 241. Stone v. Graham, 449 U.S. 39, 101 S. Ct. 192 (1981). 242. Lee v. Weisman, op. cit. 243. Santa Fe Independent School District v. Doe, 530 U.S. 290, 120 S. Ct. 2266 (2000). 244. Mueller v. Allen, op. cit. 245. Zobrest v. Catalina Foothills School District, op. cit. 246. Agostini v. Felton, op. cit. 247. Mitchell v. Helms, op. cit. 248. Zelman v. Simmons-Harris, op. cit. 249. Hackett v. Brooksville Graded School District, 120 Ky. 608, 87 S.W. 792 (1905). 250. North Dakota Compiled Laws, § 1388 (1913). 251. Illinois ex rel. McCollum v. Board of Education of School District No. 71, 333 U.S. 203, 68 S. Ct. 461 (1948). 252. Zorach v. Clauson, 343 U.S. 306, 72 S. Ct. 679 (1952). 253. Engel v. Vitale, 370 U.S. 421, 82 S. Ct. 1261 (1962). 254. Illinois ex rel. McCollum v. Board of Education, op. cit. 255. Engel v. Vitale, op. cit. 256. School District of Abington Township v. Schempp and Murray v. Curlett, 374 U.S. 203, 83 S. Ct. 1560 (1963). 257. Stone v. Graham, 449 U.S. 39, 101 S. Ct. 192 (1980). 258. In spite of the Supreme Court’s ruling in Stone, both local school district and local governmental agencies in several states have continued to post the Ten Commandments. When these practices are challenged, the courts have followed Stone. A federal district court, using the Lemon test, ruled that displaying the Ten Commandments was unconstitutional. Baker v. Adams County/Ohio Valley School Board (6th Cir. 2002). See also Doe v.
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Harlan County School District, 96 F. Supp. 2d 677 (E.D. Ky. 2000) (multiple displays with Ten Commandments violated Establishment Clause); ACLU of Kentucky v. McCreary County, 2003 WL 23014362 (6th Cir. 2003) (including Ten Commandments along with documents of American history in the courthouse and school classrooms violated First Amendment). 259. Wallace v. Jaffree, 472 U.S. 38, 105 S. Ct. 2479 (1985); Duffy v. Las Cruces Public Schools, 557 F. Supp. 1013 (D. N. M. 1983). 260. Walter v. West Virginia Board of Education, 610 F. Supp. 1169 (S.D. W.Va. 1985). 261. Jager v. Douglas County School District, 862 F.2d 824 (11th Cir. 1989). 262. Breen v. Runkel, 614 F. Supp. 355 (W.D. Mich. 1985); May v. Evansville-Vanderburgh School Corp., 787 F.2d 1105 (7th Cir. 1986). 263. Wallace v. Jaffree, op. cit. 264. Walter v. West Virginia Board of Education, op. cit. 265. Chandler v. Jones, 180 F.3d 1254 (1999). 266. Lynch v. Donnelly, 465 U.S. 668, 104 S. Ct. 1355 (1984). 267. Lee v. Weisman, 505 U.S. 577, 112 S. Ct. 2649 (1992); County of Alleghany v. ACLU, 492 U.S. 573, 109 S. Ct. 3086 (1989); Doe v. Duncanville Independent School District, 70 F.3d 402 (5th Cir. 1995). 268. Lynch v. Donnelly, 465 U.S. 668, 104 S. Ct. 1355 (1984). 269. Ibid. 270. Board of Education of Westside Community Schools v. Mergens, op. cit. 271. Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 113 S. Ct. 2141 (1993). 272. Doe v. Duncanville Independent School District, 70 F.3d at 406–7. 273. Board of Education of Westside Community Schools v. Mergens, 496 U.S. at 251, 110 S. Ct. 2356. 274. Edwards v. Aguillard, 482 U.S. 578, 107 S. Ct. 2573 (1987). 275. Ibid. 276. Board of Education of Westside Community Schools v. Mergens, op. cit. 277. Ibid. 278. School District of Abington Township v. Schempp, 374 U.S. 203, 83 S. Ct. 1560 (1963). 279. Lee v. Weisman, op. cit. 280. Ibid. 281. Jones v. Clear Creek Independent School District, 977 F.2d 963 (5th Cir.), reh’g denied, 983 F.2d 234 (5th Cir. 1992), cert. denied, 508 U.S. 967, 113 S. Ct. 2950 (1993). 282. Santa Fe Independent School District v. Doe, op. cit. 283. Widmar v. Vincent, 454 U.S. 263, 102 S. Ct. 269 (1981). 284. Board of Education of the Westside Community Schools v. Mergens, 496 U.S. 226, 110 S. Ct. 2356 (1990). 285. Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 113 S. Ct. 2141 (1993). 286. Grace Bible Fellowship v. Maine School Administration #5, 941 F.2d 45 (1st Cir. 1991). 287. Shumway v. Albany County School District No. 1 Board of Education, 826 F. Supp. 1320 (D. Wyo. 1993). 288. Boles, op. cit., p. 139. 289. D. R. Manwaring, Render unto Caesar: The Flag-Salute Controversy (Chicago: University of Chicago Press, 1962).
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290. Ibid. 291. Leoles v. Landers, 184 Ga. 580, 192 S.E. 218, appeal dismissed, 302 U.S. 656, 58 S. Ct. 364 (1937). 292. Hering v. State Board of Education, 117 N.J.L. 455, 189 A. 629 (1937). 293. Gabrielli v. Knickerbocker, 12 Cal. 2d 85, 82 P.2d 391 (1938). 294. People ex rel. Fish v. Sandstrom, 279 N.Y. 523, 18 N.E.2d 840 (1939). 295. Minersville School District v. Gobitis, 310 U.S. 586, 60 S. Ct. 1010 (1940). 296. Boles, op. cit., p. 148. 297. State v. Smith, 155 Kan. 588, 127 P.2d 518 (1942); Bolling v. Superior Court, 16 Wash. 2d 373, 133 P.2d 803 (1943). 298. In re Latrecchia, 128 N.J.L. 472, 26 A.2d 881 (1942); State v. Davis, 58 Ariz. 444, 120 P.2d 808 (1942). 299. West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S. Ct. 1178 (1943). 300. Jones v. Opelika, 316 U.S. 584, 62 S. Ct. 1231 (1942); see Bates, op. cit., pp. 151–152. 301. Newdow v. U.S. Congress, 328 F.3d 466, (9th Cir. 2002.)
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Quoted Box Citations
Works of Benjamin Franklin (Sparks ed.), VIII, pp. 505–506; in Bigelow ed., VII, pp. 139–140. Cited in Anson Phelp Stokes and Leo Pfeffer, Church and State in the United States (New York: Harper & Row, Publisher, 1964), p. 41. Richard Hooker, Of the Lawes of Ecclesiasticall Politie; The Sixth and Eighth Books, in Devine Right and Democracy: An Anthology of Political Writings in Stuart England, ed. David Wooten (Harmondsworth, Middlesex, England: Penguin Books, 1986), p. 219. Isser Woloch, The New Regime: Transformations of the French Civic Order, 1789–1820s (New York: W. W. Norton & Company, 1994), p. 194. John T. McGreevy, Catholicism and American Freedoms (New York: W. W. Norton & Company, 2003), pp. 37–38. Locke v. Davey, 540 U.S. 712, 124 S.Ct. 1307 (2004). © Copyright 2006 Pat Bagley—All Rights Reserved / www .Politicalcartoons.com © Copyright 2001 Brian Fairrington—All Rights Reserved / www.Politicalcartoons.com
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CHAPTER 6
School Attendance The whining schoolboy, with his satchel, and shining morning face, creeping like a snail, unwillingly, to school. —William Shakespeare, As You Like It, II:5.
CHAPTER OUTLINE ■
INTRODUCTION
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HOMESCHOOLING
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STATE PREROGATIVE
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OTHER REASONS FOR NONATTENDANCE
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COMPULSORY SCHOOL ATTENDANCE
Excessive Absences
Parens Patriae
Travel
Instruction in Private Schools
Illness
Equivalent Instruction
Marriage
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RESIDENCE AND DOMICILE
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VACCINATION
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IMMIGRATION AND ASSIMILATION
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SUMMATION OF CASE LAW
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HOMELESS CHILDREN
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RESEARCH AIDS
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THE AMISH EXCEPTION
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Introduction
Knowledge is the most important prerequisite to the exercise of liberty and freedom. Only through knowledge can persons expect to raise themselves to a higher level of humanity.1 It follows, then, that the general happiness of all is promoted, and liberty acquired, only if human beings are adequately educated.2 Both practical and moral reasoning, therefore, suggest that it is the duty of the state to see to the education of the entire citizenry.3 This logic did not escape the notice of the early leaders in the United
States when they developed systems of public education and required school attendance of all youth. The state’s prerogative to educate all youth is premised on the idea that all persons have a duty to educate others, if for no other reason than to protect themselves. The interests of all are promoted by a rising level of education of the entire community. States and nations, therefore, have not only the discretion but the right to require education. Throughout history, persons who do not understand that their own welfare is dependent on the educational level of those
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around them have challenged the right of government to provide universal education and to require school attendance. These persons have typically campaigned against universal education and compulsory attendance as being, in some manner, subversive to their individual liberties or freedoms. Such reasoning has usually called for forms of private education that would be beneficial to only a select group of a particular racial, religious, social, or economic orientation. This philosophy runs directly counter to the ideal that maintains that universal education is the ultimate solution to separation and ethnic division in society. Butts and Cremin have summarized the rationale for compulsory universal education, saying: If education alone could provide the intelligent electorate and leadership necessary for republican government, if education alone could prevent crime, provide for the general happiness, and secure the rights of persons and property, then the state had the right to compel it for the general welfare. Moreover, a government which had already established the power to tax for public education certainly had the right to enforce school attendance.4
The responsibility of the state to require education to protect and elevate society, to promote happiness, and to protect liberties implies a corollary right of the child to have equal opportunity to acquire education. School attendance is therefore justified on the dual grounds of both governmental and individual interests. The state has an undeniable interest in sustaining an educated citizenry that will engender morality among the people and will foster virtue in government.
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legislature from establishing a nursery school for 4-year-olds. Neither does such a provision prohibit the establishment of institutions for higher education. When a state establishes a system of public education, it cannot arbitrarily withhold services from a particular class of persons. Although a state is not required by the federal Constitution to provide public education at all, when it does so provide, it must be open and available to all.5 In this regard, children whose parents are illegal aliens are entitled to attend public schools so long as they reside in the United States. The U.S. Supreme Court has said that if a state is to deny the child of illegal alien parents a free public education, then the state must demonstrate that the denial advances a substantial state interest. It is insufficient for the state to claim the denial of a free education is justified on the grounds that the presence of undocumented children requires the state to spread scarce fiscal resources among greater numbers of children.6 States, though, can impose restrictions on school attendance provided they are reasonably related to a valid state purpose. Reasonableness may relate to the health, safety, and welfare of other children or may have to do with the orderly organization and administration of school systems. Residence requirements based on geographical boundaries drawn within and between school districts have been upheld provided there is no intent to invidiously discriminate against a certain class of students. Indeed, the drawing of attendance zones has been upheld as a valid exercise of state prerogative where boundaries were drawn to effectuate integration.
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State Prerogative
State legislatures have prescribed the admission and residence requirements for attendance in the public schools. Where state constitutions have established the age span within which all have a right to attend public schools, legislatures must provide at least the specified minimum education, but are not restricted from creating additional educational opportunities. For example, the constitutional requirement that a state provide schools for all children between the ages of 5 and 20 years does not prevent the
Compulsory School Attendance
Although the benefits of universal education were recognized at an early stage of our national development, the idea that all youth should be compelled to attend school came later. Even though the first compulsory attendance law was enacted in Massachusetts in 1853 and in New York one year later, the idea was not firmly established until the turn of the century, by which time 32 states had enacted such laws. That the state’s interests should take precedence over parental rights to govern the
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Compulsory School Attendance
activities of the child is the basis for both compulsory attendance and child labor laws. The employment records of the nineteenth century and early twentieth century indicate that it took both types of legislation to take children out of the workforce and put them in school. In large cities, children were virtually enslaved—in factories and shops, from daylight until dark—working for abysmally low wages. In the South, public school advocates and the labor unions crusaded against the abuse of child labor. In 1900, three out of 10 workers in mills of the South were children under 16 years of age, and 57.5 percent of those children were between 10 and 13. Those under 10 were not enumerated for statistical purposes. It was estimated that 75 percent of the spinners in the cotton mills of North Carolina were 14 or younger. The number of children under 16 working in the mills increased sixfold between 1880 and 1900. In 1894, the only child labor law on the books of a leading textile state was in Alabama. The law was enacted in 1887 and repealed in 1895 on demand of a large Massachusetts company that opened a mill in Alabama in 1895.7 The Manufacturers Record 8 attacked child labor laws as “radical,” “unreasonable,” and “inflammatory”; others charged that taking away child labor would cripple the economy of the South. Fortunately, by 1912 all southern states had adopted an age-and-hour limit and some prohibition against night work by children; yet, in most states the age limit for employment was only 12 and the workweek was 60 hours. Thus, a combination of industrial exploitation and the inability of parents to make decisions in the best interest of their own children greatly retarded educational progress for many years. It was not until compulsory attendance laws and child labor laws were enforced in concert that the public school became a viable social phenomenon. Even today, there are some who maintain that compulsory attendance should be abolished and all children should be given the option and opportunity to attend school, but not be compelled to do so. Milton Friedman, the Nobel laureate in economics, argued that compulsory attendance laws are unnecessary and should be abolished. In his national bestseller of 1980, Free to Choose, he observed:
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But it is far from clear that there is any justification for the compulsory attendance laws themselves. . . . Like most laws, compulsory attendance laws have costs as well as benefits. We no longer believe the benefits justify the costs.9
Friedman’s primary objection to compulsory attendance laws seems to be that such laws are merely an unwarranted justification for governmental control over parents. This argument is not a new one. It is of the nineteenth century during which era a great outcry was raised by opponents of public schools who saw compulsory attendance as an unnecessary governmental device that would deny parental authority and weaken private schools. Though the logical connection is relatively difficult to rationalize, it was basically argued that society had no right to force anyone to be educated, and if they were educated, they should do so of their own volition using their own resources. It was argued that the child and parent should be given freedom to choose or not choose education. “What right,” it was exclaimed, “has society to force me to learn reading, if I do not want to? or writing, if I can get along without it? or numbering, if I will know enough of it by the practical schooling of hard life? or geography, if I can make my way through life without maps?”10 It was further argued that those who advocated compulsory attendance implicitly assumed that “a man cannot be honest and industrious without having passed through a primary school. . . .”11 Finally, it was maintained that the general welfare of the people did not justify the government’s requirement that all attend school.12 The argument against compulsory attendance also played a role in the struggle to desegregate the public schools of the South during the 1950s and 1960s. The desegregation movement both prior to and subsequent to Brown v. Board of Education 13 led several southern states to abolish their compulsory attendance laws, apparently on the theory that equal protection of the laws would not apply if one were not required to attend school, or possibly on the more perverse notion that if black children were truant from school, there was no legal obligation on the part of the state to see that they were educated. The Virginia legislature, for example, repealed its compulsory attendance laws in 1959 and adopted the general policy of massive
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resistance to desegregation.14 Without compulsory attendance, the “freedom of choice” program, coupled with the tuition vouchers for whites to attend private schools, created formidable desegregation problems.15 Alabama went a step further, amending its constitution in 1956 to prevent any challenge to legislative discretion in the matter of control of public education attendance policy or rights pertaining thereto. In short, the issue of compulsory school attendance has been and continues to be a volatile area of dispute between those who argue for broader and universal education and those who seek a more limited use of education for particularized purposes and interests. The argument is a historical one, with the basic motivations changing little over the years. The courts have generally resolved the dilemma by maintaining that education is vital to the welfare of the state, and that the requirement that all persons be exposed to schooling is not an unreasonable or arbitrary exercise of state power. On the other hand, the courts do not compel the state legislatures to require attendance in a school, so those states that have little interest in universal education or for some reason seek to limit educational opportunity by either rescinding attendance laws or by greatly expanding the reasons for exemptions are free to do so at their own volition.
COMPULSORY EDUCATION For most children, parental choice almost certainly means less diversity, less tension, less opportunity for personal change than they would find in schools. . . . Abolish compulsory education and one loses the tension; children become mere subjects of their families and the social hierarchy in which their families are implanted. —Michael Walzer, Spheres of Justice
PARENS PATRIAE Legal authority for the state to require school attendance is found in the common law doctrine of parens patriae, which maintains, essentially, that as a parent to all persons, the state has the inherent prerogative to provide for the commonwealth and individual welfare. It can, through the exercise of the police power of the legislature, establish reasonable laws, not repugnant to the
constitution, as it may judge for the good of the state. As guardian over everyone, the state has the authority to protect those who are not legally competent to act in their own behalf, non sui juris (literally, “not his own master”). This protection was quite naturally interpreted to apply to minor children, who because of their age were unable to take care of themselves. Unavoidably, the state’s interest in the child was to collide with parental interest, and this, today, still forms the framework on which most compulsory education and curriculum controversies are litigated. It is well established, going back into English law, that the state’s or the King’s prerogative is superior to that of the parent when the parent’s natural right is improperly exercised. Authority for the power of the state was clearly stated in English precedent, and parens patriae was adopted throughout the United States “to the end that the health, patriotism, morality, efficiency, industry, and integrity of its citizenship may be preserved and protected, looking to the preservation and stability of the state.”16 In this country, the desirability of the doctrine as a rudiment of governmental responsibility was well expressed in an 1882 Illinois case, wherein the court said: It is the unquestioned right and imperative duty of every enlightened government, in its character of parens patriae, to protect and provide for the comfort and well-being of such of its citizens as by reason of infancy . . . were unable to take care of themselves. The performance of these duties is justly regarded as one of the most important of governmental functions, and all constitutional limitations must be so understood and construed as not to interfere with its proper and legitimate exercise.17
A child has a right to be protected not only from the patent abuses of his or her parents but also against the ignorance of his or her parents. The state has recognized more truth than fiction in the adage “There are no delinquent children, only delinquent parents.” In support of this view, juvenile courts and welfare agencies of the state have traditionally intervened between parent and child in cases of parental abuse. Public education may thus serve as a mechanism to free the child from the shackles of unfit parents. To protect the child from the parent requires affirmative state action. A child has no constitutional protection from the parent; such protection must come in the form of statutory action by
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Compulsory School Attendance
the state to protect the child, examples of which are compulsory attendance laws and requirements that children be exposed to certain kinds of educational curricula. On the other hand, the state’s action must be supported by a compelling or, at least, a rational state interest before either the child’s or the parent’s rights can be restricted or infringed upon. In the United States today, a dual set of precedents has emerged. One tends to limit parens patriae, as is evidenced by court-imposed limitations on state handling of juvenile cases. 18 This precedent was illustrated by the exception from the state compulsory attendance laws in Wisconsin v. Yoder. 19 The second precedent is judicial authorization for legislatures to protect the infant from parental abuse, as was reflected by the U.S. Supreme Court in Ford v. Ford in 1962, where the Court said: Unfortunately, experience has shown that the question of custody, so vital to a child’s happiness and well-being, frequently cannot be left to the discretion of the parents. This is particularly true where, as here, the estrangement of husband and wife beclouds parental judgment with emotion and prejudices.20
However, the language of the Supreme Court in Pierce v. Society of Sisters indicated that only limited tolerance would be given the state in interfering with the parent’s control of the child: In this day and under our civilization, the child of man is his parent’s child and not the state’s. . . . It is not seriously debatable that the parental right to guide one’s child intellectually and religiously is the most substantial part of the liberty and freedom of the parent.21
This does not mean that parental rights fully preempt those of the state. On the contrary, a parent may forfeit his or her right to control his or her child by either omissions or commissions that are harmful to the child. In such case, the parent has no immunity from state intervention. Nearly 20 years after Pierce, in 1943, the Supreme Court more clearly defined its position toward state intervention in Prince v. Massachusetts. Here, a legal guardian was found guilty of contributing to the delinquency of a minor by permitting her 9-year-old ward to sell Jehovah’s Witnesses publications on a public street. The act was found to be in violation of Massachusetts’s child labor
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laws. The Supreme Court addressed the conflicting claims of parent and state, saying: [T]he family itself is not beyond regulation in the public interest. . . . [A]cting to guard the general interest in youth’s well being, the state as parens patriae may restrict the parent’s control by requiring school attendance, regulating or prohibiting the child’s labor and in many other ways.22
In Yoder, the Court said that the power of the parent, even when linked to free exercise of religion, may be subject to limitation if it appears that parental decisions will jeopardize the health or safety of the children or have “potential for significant social burdens.” A common thread running through these precedents is a renewed judicial concern for the child, with the parental interest and the state interest secondary. However, the general welfare is always a concern of the state, and the maxim salus populi suprema lex esto, “let the welfare of the people be the supreme law,” is sufficient justification for the exercise of the parens patriae doctrine. State intervention to compel attendance includes distinguishable premises: The state may provide education for all who cannot appropriately educate themselves, protect infants from those who would deny them education, and compel all citizens to act in ways most beneficial to the child and society.23 Reflecting state concern in these areas, compulsory attendance laws require schooling and provide enforcement to protect the child from undesirable parental conduct.24 Cases involving challenges to compulsory attendance laws generally emanate from disputes between parents and officials. This may be due, in part, to the old notion that “the basic right of a juvenile is not to liberty but to custody.”25 It may also result directly from enforcement provisions in compulsory attendance laws that penalize the parent, rather than the child. Confrontation between state and parent instead of between state and child is probably the result of two subtle theories suggested by Kleinfeld.26 One is that parents have a duty to a child to educate him or her, and the state may compel fulfillment of this duty. The other is that parents have a duty to the state to educate their children, which the state may compel them to perform.
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Whether the judgment of the parent should prevail over the collective judgment of the state in educational matters is a much broader question, however, than may be evidenced by simple challenges to compulsory attendance laws. In a dispute between parent and state regarding an educational matter, parents may be pictured as intelligent, well meaning, and motivated for the betterment of the child. This is not always the case. The invocation of the doctrine of parens patriae in matters of education may result from broken homes where parents will not assist or support the child in obtaining an education. Where children have sought financial assistance from parents toward a common school education, the courts have uniformly termed such education as necessary and granted the support. Common school education is as “necessary” as food, lodging, clothing, and medicine.27 In the courts’ view, education has traditionally been of such importance that even items assisting school attendance have been considered necessary for child support purposes. For example, one early Texas court held that a buggy may be a “necessary” if it is needed to convey a child to and from school.28 In some states, the courts that consider education to be a “necessary” over and beyond the normal public school education have given alimony in divorce decrees.29 Exercise of parens patriae by the state may result in more severe action than that of requiring a child to attend school or mandating that a parent furnish resources for attendance in school or college. The child–parent relationship can be partly or totally severed by judicial enforcement of divorce, neglect,30 or child abuse statutes.31 The concept of parens patriae extends to compulsory medical care over the objection of parents. Some states have explicit statutory language declaring a parent neglectful if he or she fails to provide medical care for his or her child. Under a finding of neglect, the court is empowered to provide the necessary medical care.32 Courts, acting as parens patriae, have made children wards of the state and required medical care in the absence of statute, under common law.33 It should be noted that the invocation of parens patriae by the state does not restrict parental authority in all cases. In some instances, such action may even strengthen it. In cases in which parents are unable to control their own children, the child’s action produces not only disharmony within the
family but sometimes becomes a nuisance to the public generally. For such situations, some states have enacted “stubborn child laws”34 that protect the public from children who are “runaways, night walkers, common railers and brawlers.”
Parens Patriae Power of the State over Children’s Welfare Is Not Superceded by Parent’s Claim of Religious Freedom to Control the Child
Prince v. Massachusetts Supreme Court of the United States, 1944. 321 U.S. 158, 64 S. Ct. 438.
Mr. Justice RUTLEDGE delivered the opinion of the Court. The case brings for review another episode in the conflict between Jehovah’s Witnesses and state authority. This time Sarah Prince appeals from convictions for violating Massachusetts’ child labor laws, by acts said to be a rightful exercise of her religious convictions. Sections 80 and 81 form parts of Massachusetts’ comprehensive child labor law. They provide methods for enforcing the prohibitions of Section 69, which is as follows: “No boy under twelve and no girl under eighteen shall sell, expose or offer for sale any newspapers, magazines, periodicals or any other articles of merchandise of any description, or exercise the trade of bootblack or scavenger, or any other trade, in any street or public place.”
Section 80 and 81, so far as pertinent, read: “Whoever furnishes or sells to any minor any article of any description with the knowledge that the minor intends to sell such article in violation of any provision of sections sixty-nine to seventy-three, inclusive, or after having received written notice to this effect from any officer charged with the enforcement thereof, or knowingly procures or encourages any minor to violate any provisions of said sections, shall be punished by a fine of not less than ten nor more than two hundred dollars or by imprisonment for not more than two months, or both.” (Section 80).
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Compulsory School Attendance “Any parent, guardian or custodian having a minor under his control who compels or permits such minor to work in violation of any provision of sections sixty to seventy-four, inclusive, . . . shall for a first offence be punished by a fine of not less than two nor more than ten dollars or by imprisonment for not more than five days, or both; . . . .” (Section 81).
The story told by the evidence has become familiar. It hardly needs repeating, except to give setting to the variations introduced through the part played by a child of tender years. Mrs. Prince, living in Brockton, is the mother of two young sons. She also has legal custody of Betty Simmons who lives with them. The children too are Jehovah’s Witnesses and both Mrs. Prince and Betty testified they were ordained ministers. The former was accustomed to go each week on the streets of Brockton to distribute “Watchtower” and “Consolation,” according to the usual plan. She had permitted the children to engage in this activity previously, and had been warned against doing so by the school attendance officer, Mr. Perkins. But, until December 18, 1941, she generally did not take them with her at night. That evening, as Mrs. Prince was preparing to leave her home, the children asked to go. She at first refused. Childlike, they resorted to tears and, mother-like, she yielded. Arriving downtown, Mrs. Prince permitted the children “to engage in the preaching work with her upon the sidewalks.” That is, with specific reference to Betty, she and Mrs. Prince took positions about twenty feet apart near a street intersection. Betty held up in her hand, for passersby to see, copies of “Watch Tower” and “Consolation.” From her shoulder hung the usual canvas magazine bag, on which was printed “Watchtower and Consolation 5¢ per copy.” No one accepted a copy from Betty that evening and she received no money, nor did her aunt. But on other occasions, Betty had received funds and given out copies. Mrs. Prince and Betty remained until 8:45 p.m. A few minutes before this Mr. Perkins approached Mrs. Prince. A discussion ensued. He inquired and she refused to give Betty’s name. However, she stated the child attended the Shaw School. Mr. Perkins referred to his previous warnings and said he would allow five minutes for them to get off the street. Mrs. Prince admitted she supplied Betty with the magazines and said,
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“(N)either you nor anybody else can stop me. . . . This child is exercising her God-given right and her constitutional right to preach the gospel, and no creature has a right to interfere with God’s commands.” However, Mrs. Prince and Betty departed. She remarked as she went, “I’m not going through this anymore. We’ve been through it time and time again. I’m going home and put the little girl to bed.” It may be added that testimony, by Betty, her aunt and others, was offered at the trials, and was excluded, to show that Betty believed it was her religious duty to perform this work and failure would bring condemnation “to everlasting destruction at Armageddon.” The only question is whether, as construed and applied, the statute is valid. Upon this the court said: “We think that freedom of the press and of religion is subject to incidental regulation to the slight degree involved in the prohibition of the selling of religious literature in streets and public places by boys under twelve and girls under eighteen and in the further statutory provisions herein considered, which have been adopted as a means of enforcing that prohibition.” Appellant does not stand on freedom of the press. Regarding it as secular, she concedes it may be restricted as Massachusetts has done. Hence, she rests squarely on freedom of religion under the First Amendment, applied by the Fourteenth to the states. She buttresses this foundation, however, with a claim of parental right as secured by the due process clause of the latter Amendment. Meyer v. Nebraska . . . These guaranties, she thinks, guard alike herself and the child in what they have done. Thus, two claimed liberties are at stake. One is the parent’s, to bring up the child in the way he should go, which for appellant means to teach him the tenets and the practices of their faith. The other freedom is the child’s, to observe these; and among them is “to preach the gospel . . . by public distribution” of “Watchtower” and “Consolation,” in conformity with the scripture: “A little child shall lead them.” If by this position appellant seeks for freedom of conscience a broader protection than for freedom of the mind, it may be doubted that any of the great liberties insured by the First Article can be given higher place than the others. All have preferred position in our basic scheme.
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To make accommodation between these freedoms and an exercise of state authority always is delicate. It hardly could be more so than in such a clash as this case presents. On one side is the obviously earnest claim for freedom of conscience and religious practice. With it is allied the parent’s claim to authority in her own household and in the rearing of her children. The parent’s conflict with the state over control of the child and his training is serious enough when only secular matters are concerned. It becomes the more so when an element of religious conviction enters. Against these sacred private interests, basic in a democracy, stand the interests of society to protect the welfare of children, and the state’s assertion of authority to that end, made here in a manner conceded valid if only secular things were involved. The last is no mere corporate concern of official authority. It is the interest of youth itself, and of the whole community, that children be both safeguarded from abuses and given opportunities for growth into free and independent well-developed men and citizens. Between contrary pulls of such weight, the safest and most objective recourse is to the lines already marked out, not precisely but for guides, in narrowing the no man’s land where this battle has gone on. The rights of children to exercise their religion, and of parents to give them religious training and to encourage them in the practice of religious belief, as against preponderant sentiment and assertion of state power voicing it, have had recognition here, most recently in West Virginia State Board of Education v. Barnette. . . . Previously in Pierce v. Society of Sisters, . . . this Court had sustained the parent’s authority to provide religious with secular schooling, and the child’s right to receive it, as against the state’s requirement of attendance at public schools. And in Meyer v. Nebraska, . . . children’s rights to receive teaching in languages other than the nation’s common tongue were guarded against the state’s encroachment. It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder. And it is in recognition of this that these decisions have respected the private realm of family life which the state cannot enter. But the family itself is not beyond regulation in the public interest, as against a claim of religious
liberty. And neither rights of religion nor rights of parenthood are beyond limitation. Acting to guard the general interest in youth’s well-being, the state as parens patriae may restrict the parent’s control by requiring school attendance, regulating or prohibiting the child’s labor, and in many other ways. Its authority is not nullified merely because the parent grounds his claim to control the child’s course of conduct on religion or conscience. Thus, he cannot claim freedom from compulsory vaccination for the child more than for himself on religious grounds. The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death. The catalogue need not be lengthened. It is sufficient to show what indeed appellant hardly disputes, that the state has a wide range of power for limiting parental freedom and authority in things affecting the child’s welfare; and that this includes, to some extent, matters of conscience and religious conviction. But it is said the state cannot do so here. This, first, because when state action impinges upon a claimed religious freedom, it must fall unless shown to be necessary for or conducive to the child’s protection against some clear and present danger, and, it is added, there was no such showing here. The child’s presence on the street, with her guardian, distributing or offering to distribute the magazines, it is urged, was in no way harmful to her, nor in any event more so than the presence of many other children at the same time and place, engaged in shopping and other activities not prohibited. Accordingly, in view of the preferred position the freedoms of the First Article occupy, the statute in its present application must fall. It cannot be sustained by any presumption of validity. And, finally, it is said, the statute is, as to children, an absolute prohibition, not merely a reasonable regulation, of the denounced activity. Concededly, a statute or ordinance identical in terms . . . , except that it is applicable to adults or all persons generally, would be invalid. But the mere fact a state could not wholly prohibit this form of adult activity, whether characterized locally as a “sale” or otherwise, does not mean it cannot do so for children. Such a conclusion granted would mean that a state could impose no greater limitation upon child labor than upon adult labor. Or, if an adult were free to enter dance halls, saloons, and disreputable places
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Compulsory School Attendance
generally, in order to discharge his conceived religious duty to admonish or dissuade persons from frequenting such places, so would be a child with similar convictions and objectives, if not alone then in the parent’s company, against the state’s command. The state’s authority over children’s activities is broader than over like actions of adults. This is peculiarly true of public activities and matters of employment. A democratic society rests, for its continuance, upon the healthy, well-rounded growth of young people into full maturity as citizens, with all that implies. It may secure this against impeding restraints and dangers, within a broad range of selection. Among evils most appropriate for such action are the crippling effects of child employment, more especially in public places, and the possible harms arising from other activities subject to all the diverse influences of the street. It is too late now to doubt that legislation appropriately designed to reach such evils is within the state’s police power, whether against the parents’ claim to control of the child or one that religious scruples dictate contrary action. It is true children have rights, in common with older people, in the primary use of highways. But even in such use, streets afford dangers for them not affecting adults; and in other uses, whether in work or in other things, this difference may be magnified. This is so not only when children are unaccompanied but certainly to some extent when they are with their parents. What may be wholly permissible for adults therefore may not be so for children, either with or without their parents’ presence. Street preaching, whether oral or by handing out literature, is not the primary use of the highway, even for adults. While for them it cannot be wholly prohibited, it can be regulated within reasonable limits in accommodation to the primary and other incidental uses. But, for obvious reasons notwithstanding appellant’s contrary view, the validity of such a prohibition applied to children not accompanied by an older person would seem open to question. The case reduces itself therefore to the question whether the presence of the child’s guardian puts a limit to the state’s power. [emphasis added] That fact may lessen the likelihood that some evils the legislation seeks to avert will occur. But it cannot forestall all of them. The zealous though lawful exercise of the right to
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engage in propagandizing the community, whether in religious, political or other matters, may and at times does create situations difficult enough for adults to cope with and wholly inappropriate for children, especially of tender years, to face. Other harmful possibilities could be stated, of emotional excitement and psychological or physical injury. Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves. Massachusetts has determined that an absolute prohibition, though one limited to streets and public places and to the incidental uses proscribed, is necessary to accomplish its legitimate objectives. Its power to attain them is broad enough to reach these peripheral instances in which the parent’s supervision may reduce but cannot eliminate entirely the ill effects of the prohibited conduct. We think that with reference to the public proclaiming of religion, upon the streets and in other similar public places, the power of the state to control the conduct of children reaches beyond the scope of its authority over adults, as is true in the case of other freedoms, and the rightful boundary of its power has not been crossed in this case. In so ruling we dispose also of appellant’s argument founded upon denial of equal protection. It falls with that based on denial of religious freedom, since in this instance the one is but another phrasing of the other. Shortly, the contention is that the street, for Jehovah’s Witnesses and their children, is their church, since their conviction makes it so; and to deny them access to it for religious purposes as was done here has the same effect as excluding altar boys, youthful choristers, and other children from the edifices in which they practice their religious beliefs and worship. The argument hardly needs more than statement, after what has been said, to refute it. However Jehovah’s Witnesses may conceive them, the public highways have not become their religious property merely by their assertion. And there is no denial of equal protection in excluding their children from doing there what no other children may do. Our ruling does not extend beyond the facts the case presents. We neither lay the foundation “for any (that is, every) state intervention in the indoctrination and participation of children in
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religion” which may be done “in the name of their health and welfare” nor give warrant for “every limitation on their religious training and activities.” The religious training and indoctrination of children may be accomplished in many ways, some of which, as we have noted, have received constitutional protection through decisions of this Court. These and all others except the public proclaiming of religion on the streets, if this may be taken as either training or indoctrination of the proclaimer, remain unaffected by the decision. The judgment is affirmed.
CASE NOTES 1. Parental Rights: Dietz has summarized the law concerning the interests of the parent versus the state as follows: Parental rights are not absolute and are subject to reasonable regulation. The state, as parens patriae, has a wide range of power for limiting parental freedom and authority in things affecting the child’s welfare. The parents, as natural guardians, are responsible to the state for the child’s wellbeing. The natural rights of a parent to the custody and control of his infant child are subject to the power of the state, and may be restricted and regulated by appropriate legislative or judicial action. Only a compelling state interest justifies burdening the parent’s fundamental right to enjoy a relationship with his child, and the state must bear the burden of demonstrating the necessity for doing so.
“A Parent Cannot be Deprived of His Parental Rights Without Due Process of Law,” Laura Hunter Dietz, 59 Am. Jur. Parent and Child § 18. 2. A city does not violate the First Amendment rights of persons under 18 years of age by an ordinance that requires them to be off the streets and away from other public places between 10 p.m. and daylight. Nunez by Nunez v. City of San Diego, 114 F.3d 935 (9th Cir. 1997).
INSTRUCTION IN PRIVATE SCHOOLS When compulsory attendance laws are mentioned, one usually thinks of children being compelled to attend only public schools; however, many alternatives and exceptions exist. A child may attend a private, profit, nonprofit, sectarian, or secular school or, with state statutory permission, be permitted to have home instruction. A child may also be exempt from required attendance because of religion, marriage, physical or mental incapacity, distance of travel, and so on.
Courts have established many precedents that even today are in a state of transition. Few cases have defined “private school” as used in compulsory attendance laws.35 Precise definition is lacking, because in several jurisdictions children are not required to attend either public or private schools but must obtain “equivalent instruction.”36 The state cannot, however, impose too many regulations on private schools. In holding Ohio’s regulation of private schools overly restrictive, tending to make private schools the images of public schools, the court said that the overregulation of the private schools emanated from state educational agency regulations. These regulations governed “the content of the curriculum that [was] taught, the manner in which it [was] taught, the person or persons who [taught] it, the physical layout of the building in which the students [were] taught, the hours of instruction, and the educational policies intended to be achieved through the instruction offered.”37 Most courts have held that to be “recognized,” a private school must provide instruction equivalent to the free instruction furnished in public schools. To have equivalent instruction, it is also necessary for the private school to comply with the statutory period of attendance.38
EQUIVALENT INSTRUCTION The state has the prerogative to define what constitutes equivalent instruction, and the private school must accommodate the state. Although vaguely defining the term equivalent as meaning “equal,” the courts generally refer to the qualifications of the instructor and the available teaching materials as the primary criteria for determining equivalency of instruction. Should the state require that students be tested, it makes no difference that the private school would rather opt for some other measure of equivalency.39 The court will uphold the state standards so long as they are reasonable and are not too vague for proper implementation. State equivalency regulations may require that children (1) be taught by a certified teacher; (2) be taught a minimum specified, listed curriculum; (3) fulfill specified minimum attendance standards that are appropriate and will be upheld by the courts; or (4) pass tests as specified by the state.40 Thus, as with all laws touching on individual freedoms, appropriate governmental restraints must be specifically and properly defined or they
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Compulsory School Attendance
will be invalidated by the courts as too vague to be enforceable.41 Courts may thus continue to find that tests, certification of teachers, and other measures constitute a reasonable exercise of state power.42 Although the state can require instruction equivalent to that of a public school, it cannot deny the parent the right to send his or her child to a private school. In a 1925 case, Pierce v. Society of Sisters, a private school itself, as a corporation, claimed denial of due process of law because an Oregon compulsory attendance statute required all children ages 8 to 16 to attend public schools.43 The appellees in the case were the Roman Catholic order of the Society of Sisters and Hill Military Academy, both private, profit-making corporations. The schools claimed that enforcement of the compulsory attendance law would deprive them of students, destroy the profitable features of their businesses, and diminish the value of their property. The compulsory education controversy had been raised by those who were concerned that private schools created religious hostility and prejudice, and that American government and loyalty to democratic ideals could best be taught in public schools. Further, the law was enacted at the time when there was a great worldwide fear of the spread of Bolshevists, syndicalists, and Communists; there was concern that private schools could be started and fostered by such groups. In 1922, the Oregon voters adopted an initiative— by a margin of 115,000 to 103,000—requiring that all children between the ages of 8 and 16 years attend a public school or be exempted by permission of the county school superintendent. In ruling in the plaintiffs’ favor in Pierce, the U.S. Supreme Court decided the case on the grounds that the state cannot, through improper regulation, deprive a business corporation of its patrons or customers. The law deprived the corporations of a liberty protected by the Fourteenth Amendment. In this regard, the Court commented on the rights of both parent and child: The fundamental theory of liberty upon which all governments in this union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.44
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Religious interests may be used as rationale by private school operators to maintain that their schools should remain open regardless of adherence to state curriculum regulations. Courts will weigh religious interests against state interests, and the result may hang in the balance on the facts involved. For example, even a church itself may be closed if worship services are held in a residential area of a city and the religious chanting during worship services disturbs the neighborhood.45 With private religious schools, though, the facts and the interests involved may concern more esoteric questions, such as whether accommodation of minimal state educational requirements is an encroachment on religious interests. In Nebraska, a lengthy and highly publicized conflict developed when the state closed a private religious school because it did not adhere to state requirements for private schools. The Nebraska Supreme Court held that the state interests prevailed over the religious interests of the private school proprietors and parents.46 Religious convictions do not exempt operators of private schools from compliance with reasonable state school laws.47 In this regard a Michigan appeals court has held that parochial schools can be required to submit to the state the records of enrollment of pupils attending the schools and the qualifications of teachers. Similarly, the state can enforce curriculum and teacher certification requirements.48
Compulsory Education Law Requiring All Children to Attend Public Schools Violates Due Process Clause
Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary Supreme Court of the United States, 1925. 268 U.S. 510, 45 S. Ct. 571.
Mr. Justice McREYNOLDS delivered the opinion of the Court. These appeals are from decrees, based upon undenied allegations, which granted preliminary orders restraining appellants from threatening or attempting to enforce the Compulsory
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Education Act adopted November 7, 1922 (Laws Or. 1923, p. 9), under the initiative provision of her Constitution by the voters of Oregon. Judicial Code, § 266 (Comp.St. § 1243). . . . The challenged act, effective September 1, 1926, requires every parent, guardian, or other person having control or charge or custody of a child between eight and sixteen years to send him “to a public school for the period of time a public school shall be held during the current year” in the district where the child resides; and failure so to do is declared a misdemeanor. There are exemptions—not especially important here— for children who are not normal, or who have completed the eighth grade, or whose parents or private teachers reside at considerable distances from any public school, or who hold special permits from the county superintendent. The manifest purpose is to compel general attendance at public schools by normal children, between eight and sixteen, who have not completed the eighth grade. And without doubt enforcement of the statute would seriously impair, perhaps destroy, the profitable features of appellees’ business and greatly diminish the value of their property. Appellee the Society of Sisters is an Oregon corporation, organized in 1880, with power to care for orphans, educate and instruct the youth, establish and maintain academies or schools, and acquire necessary real and personal property. It has long devoted its property and effort to the secular and religious education and care of children, and has acquired the valuable good will of many parents and guardians. . . . It owns valuable buildings, especially constructed and equipped for school purposes. The business is remunerative—the annual income from primary schools exceeds $30,000—and the successful conduct of this requires longtime contracts with teachers and parents. The Compulsory Education Act of 1922 has already caused the withdrawal from its schools of children who would otherwise continue, and their income has steadily declined. The appellants, public officers, have proclaimed their purpose strictly to enforce the statute. After setting out the above facts, the Society’s bill alleges that the enactment conflicts with the right of parents to choose schools where their children will receive appropriate mental and
religious training, the right of the child to influence the parents’ choice of a school, the right of schools and teachers therein to engage in a useful business or profession, and is accordingly repugnant to the Constitution and void. And, further, that unless enforcement of the measure is enjoined the corporation’s business and property will suffer irreparable injury. Appellee Hill Military Academy is a private corporation organized in 1908 under the laws of Oregon, engaged in owning, operating, and conducting for profit an elementary, college preparatory, and military training school for boys between the ages of five and twenty-one years. . . . It owns considerable real and personal property, some useful only for school purposes. The business and incident goodwill are very valuable. . . . The Academy’s bill states the foregoing facts and then alleges that the challenged act contravenes the corporation’s rights guaranteed by the Fourteenth Amendment and that unless appellants are restrained from proclaiming its validity and threatening to enforce it irreparable injury will result. The prayer is for an appropriate injunction. . . . The court ruled that the Fourteenth Amendment guaranteed appellees against the deprivation of their property without due process of law consequent upon the unlawful interference by appellants with the free choice of patrons, present and prospective. It declared the right to conduct schools was property and that parents and guardians, as a part of their liberty, might direct the education of children by selecting reputable teachers and places. . . . No question is raised concerning the power of the state reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils; to require that all children of proper age attend some school, that teachers shall be of good moral character and patriotic disposition, that certain studies plainly essential to good citizenship must be taught, and that nothing be taught which is manifestly inimical to the public welfare. The inevitable practical result of enforcing the act under consideration would be destruction of appellees’ primary schools, and perhaps all other private primary schools for normal children within the state of Oregon. Appellees
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Residence and Domicile
[the schools] are engaged in a kind of undertaking not inherently harmful, but long regarded as useful and meritorious. Certainly there is nothing in the present records to indicate that they have failed to discharge their obligations to patrons, students or the state. And there are no peculiar circumstances or present emergencies which demand extraordinary measures relative to primary education. Under the doctrine of Meyer v. Nebraska, we think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. As often heretofore pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the state. The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations. Appellees are corporations, and therefore, it is said, they cannot claim for themselves the liberty which the Fourteenth Amendment guarantees. Accepted in the proper sense, this is true. . . . But they have business and property for which they claim protection. These are threatened with destruction through the unwarranted compulsion which appellants are exercising over present and prospective patrons of their schools. And this court has gone very far to protect against loss threatened by such action. . . . Generally, it is entirely true, as urged by counsel, that no person in any business has such an interest in possible customers as to enable him to restrain exercise of proper power of the state upon the ground that he will be deprived of patronage. But the injunctions here sought are not against the exercise of any proper power. Appellees asked protection against arbitrary, unreasonable, and unlawful interference with their patrons and the consequent destruction of their business and property. Their interest is clear and immediate. . . . The decrees below are affirmed.
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Residence and Domicile STATE REGULATION
No one will doubt that the legislator should direct his attention above all to the education of youth. . . . [E]ducation should be regulated by law and should be an affair of state is not to be denied. —Aristotle, Book VIII, Politics
Most state laws require that children be residents of the school district in which they attend school. A school district has the legal authority to challenge the residence of a student. A student who changes guardianship solely for the purpose of attending a particular school may be denied attendance.49 The U.S. Supreme Court has held that an appropriately defined and uniformly applied residence law is constitutionally valid. The state’s interest in ensuring appropriate educational services to be enjoyed by the residents is rationale enough to support such a requirement.50 To establish residence, one must be physically present and intend to remain at that location. The Maine Supreme Court, in an early decision, held that residence was established “when a person takes up his abode in a given place, without any present intention to remove therefrom. . . .”51 The word domicile is derived from the Latin domus meaning home or dwelling house. The word may be defined by law as the true place of habitation. A Washington statute was upheld as constitutional by the U.S. Supreme Court when it defined “domicile” as “a person’s true, fixed and permanent home and place of habitation. It is the place where he intends to remain, and to which he expects to return when he leaves without intending to establish a new domicile elsewhere.”52 A bona fide residence requirement may have the same legal connotation as “domicile.” “Domicile” and “residence” are usually in the same place, but the terms are not identical. A person may have two residences, but can have only one domicile. Whether the term residence or domicile is used, the key is the “intention to remain.” The physical location of a child’s home is not necessarily dispositive in determining residence.
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The courts have coined the term constellation of interest that more precisely defines the legal location of the student for attendance purposes. The “constellation of interests” of the family may replace domicile as a court’s criterion. Where the home actually sits astride the boundary line between two municipalities (though a larger portion of the dwelling is in one of the municipalities), for residency purposes of attending school, the matter should not be determined by the physical location of the home, but rather at the locus of the “full constellation of interest” of the family. The Restatement (Second) of Conflict of Laws summarizes the reasoning: “A person’s domicile of choice should be in the place to which he is most closely related. In the normal situation, a person’s domicile of choice is in the political division where his dwelling place is situated. . . . (However), {w}hen the boundary line cuts the dwelling place in half, or nearly so, primary weight should be given to the interests and activities of the person and his family, and the domicile placed in the political division where most of these interests and activities are centered.”53 The Supreme Court of Illinois has further explained the “constellation of interests” criterion asserting that this approach is fact-based and less arbitrary, taking into account not only the physical property, but also other factors associated with the student and family. Several other jurisdictions have adopted and elaborated on the “constellation of interests” means of determining the legal location of a student.54 Concerning custody, school districts may inquire as to the reason for the change in the custody of a child and can deny admission if the parent’s purpose is to circumvent the school district’s zoning requirements. 55 A change in student residence simply to participate in an athletic program may be denied by athletic association rules without violating a student’s property rights.56 The Arkansas Supreme Court has held that children residing in one school district could pay tuition and attend school in another school district, but only if both school districts agree to the arrangement.57 These are the legal rules that apply to residence and domicile that are in play throughout the United States. However, as indicated, such requirements may be modified in the case of the
homeless child and youth as states accommodate their agreements with the federal government under the McKinney-Vento law, now a part of NCLB. (See Homeless Children below.)
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Immigration and Assimilation
As explained previously, the viability of modern states and nations and the liberties of individuals are dependent on a mass universal education. The more advanced societies have seen to this necessity by requiring school attendance of each succeeding generation of the citizenry. A problem emerges when, in the movement of peoples, education is denied. Immigrants are usually singled out for such denials. The rationale for rejection of attendance may not be altogether unreasonable and may have validity in both philosophy and law. Human beings are social creatures that depend on cooperation and reciprocal coalitions in order to exist.58 An important aspect of the primeval makeup of mankind is that humans are tribally dependent. The history of mankind is basically one of tribal loyalties and rivalries. Tribal coalitions have marked the survival patterns of humans from the very small groupings, such as hundreds of tribes of Native Americans, to large singular tribes that form main portions of geographical reaches of the earth. As Matt Ridley so vividly points out, without this tribal instinct of the primate, Homo erectus, “there would not be nationalism, borders, in-groups and out-groups, warfare. These are the consequences of tribal thinking, which itself is the consequence of our evolutionary heritage. . . .”59 States and nations are, thus, large tribes formed around culture, tradition, language, religion, and historical background. E. J. Hobsbawm makes the point that nations are not a natural state of human affairs; there is no “God-given way of classifying men,” 60 and the idea that there is some preordained tribal arrangement is a “myth.”61 Over time nations are not static and unchanging; on the contrary, the social and physical geography of large coalitions are amorphous and always evolving. An essential aspect of the evolution of nations is demography. Fertility rates affect human migrations across the globe. Europe and the United
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Immigration and Assimilation
Sates have experienced declining fertility rates with senior citizens outnumbering the youth and the working-age groups. In the United States, the ratio of the working-age people to older citizens will fall by one-third by 2030.62 The only real way for a nation with a declining workforce to progress economically is with the continuing stimulus of immigration. Fareed Zakaria63 (2009) says that: “America’s edge in innovation and economic development is overwhelmingly a product of immigration, and America has always found a way to keep itself constantly revitalized by streams of people . . . to tap this energy, manage diversity, assimilate newcomers, and to move ahead economically.”64 Today, however, the growth and economic vitality of America is dependent on immigration. Militating against economic viability and growth is what Ridley identifies as “tribal thinking,” the selfish gene writ large, which rejects out-groups and results in the unintended consequence of harming itself.65 A state or nation that has a declining birth rate and/or sparsity of population benefits by a positive transfer of human capital. Assimilation within nations or states is largely driven by languages, spoken or written; “mass literacy, hence, mass education.”66 Thus, the necessity of public common schools. And as Hobsbawm observes, this “mass education must be conducted in the vernacular . . . in order for there to be mass spoken communications,” which is essential to the elections which must be comprehensible if democratic processes are to prevail.67 The Supreme Court has dealt with the issue of public schooling of immigrants and has established its constitutional parameters. The essential cases are Plyler v. Doe68 and Martinez v. Bynum.69 In Plyler, the Court established children of parents who were illegal aliens living in the United States could not be denied free public education, that there is no state or national policy that would justify denying such children an education. In Martinez, the Court narrowed its rationale to explain that a bona fide residence requirement did not violate a child’s equal protection rights. The principal difference between Plyler and Martinez being that the immigrant children whose parents are illegal aliens, but who reside in the United States, are entitled to a public education where, on the other hand, children in the United States whose parents reside in another country
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are not, therefore, in legal residence and can be denied free public schooling.
Undocumented Children of Alien Parents Cannot Be Denied a Public Education
Plyler v. Doe Supreme Court of the United States, 1982. 457 U.S. 202, 102 S. Ct. 2382.
Mr. Justice BRENNAN delivered the opinion of the Court. The question presented by these cases is whether, consistent with the Equal Protection Clause of the Fourteenth Amendment, Texas may deny to undocumented school-age children the free public education that it provides to children who are citizens of the United States or legally admitted aliens. Since the late nineteenth century, the United States has restricted immigration into this country. Unsanctioned entry into the United States is a crime, 8 U.S.C. § 1325, and those who have entered unlawfully are subject to deportation, 8 U.S.C. §§ 1251–1252. But despite the existence of these legal restrictions, a substantial number of persons have succeeded in unlawfully entering the United States, and now live within various States, including the State of Texas. In May 1975, the Texas legislature revised its education laws to withhold from local school districts any state funds for the education of children who were not “legally admitted” into the United States. The 1975 revision also authorized local school districts to deny enrollment in their public schools to children not “legally admitted” to the country. Tex. Educ. Code Ann. § 21.031 (Vernon Cum. Supp. 1981). These cases involve constitutional challenges to those provisions. . . . The Fourteenth Amendment provides that “No State shall . . . deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Appellants argue at the
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outset that undocumented aliens, because of their immigration status, are not “persons within the jurisdiction” of the State of Texas, and that they therefore have no right to the equal protection of Texas law. We reject this argument. Whatever his status under the immigration laws, an alien is surely a “person” in any ordinary sense of that term. Aliens, even aliens whose presence in this country is unlawful, have long been recognized as “persons” guaranteed due process of law by the Fifth and Fourteenth Amendments. Indeed, we have clearly held that the Fifth Amendment protects aliens whose presence in this country is unlawful from invidious discrimination by the Federal Government. Appellants seek to distinguish our prior cases, emphasizing that the Equal Protection Clause directs a State to afford its protection to persons within its jurisdiction while the Due Process Clauses of the Fifth and Fourteenth Amendments contain no such assertedly limiting phrase. In appellants’ view, persons who have entered the United States illegally are not “within the jurisdiction” of a State even if they are present within a State’s boundaries and subject to its laws. Neither our cases nor the logic of the Fourteenth Amendment supports that constricting construction of the phrase “within its jurisdiction.” We have never suggested that the class of persons who might avail themselves of the equal protection guarantee is less than coextensive with that entitled to due process. To the contrary, we have recognized that both provisions were fashioned to protect an identical class of persons, and to reach every exercise of State authority. The Fourteenth Amendment to the Constitution is not confined to the protection of citizens. It says: “Nor shall any state deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, color, or of nationality; and the protection of the laws is a pledge of the protection of equal laws. (emphasis added)
In concluding that “all persons within the territory of the United States,” including aliens unlawfully present, may invoke the Fifth and Sixth Amendment to challenge actions of the Federal Government, we reasoned from the understanding
that the Fourteenth Amendment was designed to afford its protection to all within the boundaries of a State. . . . There is simply no support for appellants’ suggestion that “due process” is somehow of greater stature than “equal protection” and therefore available to a larger class of persons. To the contrary, each aspect of the Fourteenth Amendment reflects an elementary limitation on state power. To permit a State to employ the phrase “within its jurisdiction” in order to identify subclasses of persons whom it would define as beyond its jurisdiction, thereby relieving itself of the obligation to assure that its laws are designed and applied equally to those persons, would undermine the principal purpose for which the Equal Protection Clause was incorporated in the Fourteenth Amendment. The Equal Protection Clause was intended to work nothing less than the abolition of all caste and invidious class-based legislation. That objective is fundamentally at odds with the power the State asserts here to classify persons subject to its laws as nonetheless excepted from its protection. . . . Use of the phrase “within its jurisdiction” thus does not detract from, but rather confirms, the understanding that the protection of the Fourteenth Amendment extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State’s territory. That a person’s initial entry into a State, or into the United States, was unlawful, and that he may for that reason be expelled, cannot negate the simple fact of his presence within the State’s territorial perimeter. Given such presence, he is subject to the full range of obligations imposed by the State’s civil and criminal laws. And until he leaves the jurisdiction—either voluntarily, or involuntarily in accordance with the Constitution and laws of the United States—he is entitled to the equal protection of the laws that a State may choose to establish. Our conclusion that the illegal aliens who are plaintiffs in these cases may claim the benefit of the Fourteenth Amendment’s guarantee of equal protection only begins the inquiry. The more difficult question is whether the Equal Protection Clause has been violated by the refusal of the State of Texas to reimburse local school boards for the education of children who cannot demonstrate that their presence within the United
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Immigration and Assimilation
States is lawful, or by the imposition by those school boards of the burden of tuition on those children. . . . The Equal Protection Clause directs that “all persons similarly circumstanced shall be treated alike.” But so too, “The Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same.” The initial discretion to determine what is “different” and what is “the same” resides in the legislatures of the States. A legislature must have substantial latitude to establish classifications that roughly approximate the nature of the problem perceived, that accommodate competing concerns both public and private, and that account for limitations on the practical ability of the State to remedy every ill. In applying the Equal Protection Clause to most forms of state action, we thus seek only the assurance that the classification at issue bears some fair relationship to a legitimate public purpose. But we would not be faithful to our obligations under the Fourteenth Amendment if we applied so deferential a standard to every classification. The Equal Protection Clause was intended as a restriction on state legislative action inconsistent with elemental constitutional premises. Thus we have treated as presumptively invidious those classifications that disadvantage a “suspect class,” or that impinge upon the exercise of a “fundamental right.” With respect to such classifications, it is appropriate to enforce the mandate of equal protection by requiring the State to demonstrate that its classification has been precisely tailored to serve a compelling governmental interest. In addition, we have recognized that certain forms of legislative classification, while not facially invidious, nonetheless give rise to recurring constitutional difficulties; in these limited circumstances we have sought the assurance that the classification reflects a reasoned judgment consistent with the ideal of equal protection by inquiring whether it may fairly be viewed as furthering a substantial interest of the State. We turn to a consideration of the standard appropriate for the evaluation of § 21.031. Sheer incapability or lax enforcement of the laws barring entry into this country, coupled with the failure to establish an effective bar to the employment of undocumented aliens, has resulted in the creation of a substantial “shadow
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population” of illegal migrants—numbering in the millions—within our borders. This situation raises the specter of a permanent caste of undocumented resident aliens, encouraged by some to remain here as a source of cheap labor, but nevertheless denied the benefits that our society makes available to citizens and lawful residents. The existence of such an underclass presents most difficult problems for a Nation that prides itself on adherence to principles of equality under law. The children who are plaintiffs in these cases are special members of this underclass. Persuasive arguments support the view that a State may withhold its beneficence from those whose very presence within the United States is the product of their own unlawful conduct. These arguments do not apply with the same force to classifications imposing disabilities on the minor children of such illegal entrants. At the least, those who elect to enter our territory by stealth and in violation of our law should be prepared to bear the consequences, including, but not limited to, deportation. But the children of those illegal entrants are not comparably situated. Their “parents have the ability to conform their conduct to societal norms,” and presumably the ability to remove themselves from the State’s jurisdiction; but the children who are plaintiffs in these cases “can affect neither their parents’ conduct nor their own status.” Even if the State found it expedient to control the conduct of adults by acting against their children, legislation directing the onus of a parent’s misconduct against his children does not comport with fundamental conceptions of justice. . . . Of course, undocumented status is not irrelevant to any proper legislative goal. Nor is undocumented status an absolutely immutable characteristic since it is the product of conscious, indeed unlawful, action. But § 21.031 is directed against children, and imposes its discriminatory burden on the basis of a legal characteristic over which children can have little control. It is thus difficult to conceive of a rational justification for penalizing these children for their presence within the United States. Yet that appears to be precisely the effect of § 21.031. Public education is not a “right” granted to individuals by the Constitution. But neither is it merely some governmental “benefit” indistinguishable from other forms of social welfare
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legislation. Both the importance of education in maintaining our basic institutions, and the lasting impact of its deprivation on the life of the child, mark the distinction. . . . In sum, education has a fundamental role in maintaining the fabric of our society. We cannot ignore the significant social costs borne by our Nation when select groups are denied the means to absorb the values and skills upon which our social order rests. . . . Paradoxically, by depriving the children of any disfavored group of an education, we foreclose the means by which that group might raise the level of esteem in which it is held by the majority. But more directly, “education prepares individuals to be self-reliant and selfsufficient participants in society.” Illiteracy is an enduring disability. The inability to read and write will handicap the individual deprived of a basic education each and every day of his life. The inestimable toll of that deprivation on the social, economic, intellectual, and psychological well-being of the individual, and the obstacle it poses to individual achievement, makes it most difficult to reconcile the cost or the principle of a status-based denial of basic education with the framework of equality embodied in the Equal Protection Clause. . . . These well-settled principles allow us to determine the proper level of deference to be afforded § 21.031. Undocumented aliens cannot be treated as a suspect class because their presence in this country in violation of federal law is not a “constitutional irrelevancy.” Nor is education a fundamental right; a State need not justify by compelling necessity every variation in the manner in which education is provided to its population. But more is involved in this case than the abstract question whether § 21.031 discriminates against a suspect class, or whether education is a fundamental right. Section 21.031 imposes a lifetime hardship on a discrete class of children not accountable for their disabling status. The stigma of illiteracy will mark them for the rest of their lives. By denying these children a basic education, we deny them the ability to live within the structure of our civic institutions, and foreclose any realistic possibility that they will contribute in even the smallest way to the progress of our Nation. In determining the rationality of § 21.031, we may appropriately take into account
its costs to the Nation and to the innocent children who are its victims. In light of these countervailing costs, the discrimination contained in § 21.031 can hardly be considered rational unless it furthers some substantial goal of the State. . . . To be sure, like all persons who have entered the United States unlawfully, these children are subject to deportation. 8 U.S.C. §§ 1251–1252. But there is no assurance that a child subject to deportation will ever be deported. An illegal entrant might be granted federal permission to continue to reside in this country, or even to become a citizen. See, e.g., 8 U.S.C. §§ 1252, 1253(h), 1254. In light of the discretionary federal power to grant relief from deportation, a State cannot realistically determine that any particular undocumented child will in fact be deported until after deportation proceedings have been completed. It would of course be most difficult for the State to justify a denial of education to a child enjoying an inchoate federal permission to remain. . . . Appellants argue that the classification at issue furthers an interest in the “preservation of the state’s limited resources for the education of its lawful residents.” . . . Apart from the asserted state prerogative to act against undocumented children solely on the basis of their undocumented status—an asserted prerogative that carries only minimal force in the circumstances of this case—we discern three colorable state interests that might support § 21.031. First, appellants appear to suggest that the State may seek to protect the State from an influx of illegal immigrants. While a State might have an interest in mitigating the potentially harsh economic effects of sudden shifts in population, § 21.031 hardly offers an effective method of dealing with an urgent demographic or economic problem. There is no evidence in the record suggesting that illegal entrants impose any significant burden on the State’s economy. . . . Second, while it is apparent that a state may “not . . . reduce expenditures for education by barring [some arbitrarily chosen class of] children from its schools,” appellants suggest that undocumented children are appropriately singled out for exclusion because of the special burdens they impose on the State’s ability to provide high quality public education. But the record in no way supports the claim that exclusion of undocumented children is likely to improve the
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Immigration and Assimilation
overall quality of education in the State. . . . In terms of educational cost and need, however, undocumented children are “basically indistinguishable” from legally resident alien children. Finally, appellants suggest that undocumented children are appropriately singled out because their unlawful presence within the United States renders them less likely than other children to remain within the boundaries of the State, and to put their education to productive social or political use within the State. Even assuming that such an interest is legitimate, it is an interest that is most difficult to quantify. The State has no assurance that any child, citizen or not, will employ the education provided by the State within the confines of the State’s borders. In any event, the record is clear that many of the undocumented children disabled by this classification will remain in this country indefinitely, and that some will become lawful residents or citizens of the United States. It is difficult to understand precisely what the State hopes to achieve by promoting the creation and perpetuation of a subclass of illiterates within our boundaries, surely adding to the problems and costs of unemployment, welfare, and crime. It is thus clear that whatever savings might be achieved by denying these children an education, they are wholly insubstantial in light of the costs involved to these children, the State, and the Nation. If the State is to deny a discrete group of innocent children the free public education that it offers to other children residing within its borders, that denial must be justified by a showing that it furthers some substantial state interest. No such showing was made here. Accordingly, the judgment of the Court of Appeals in each of these cases is Affirmed.
CASE NOTES 1. A Texas school district policy requiring students to reside in the district with parent or legal guardian, regardless of the “primary purpose” of living in the school district, violated the Equal Protection Clause. The school district’s policy did not further a state interest of preventing overcrowding that was allegedly caused by “white flight,” since the school district’s interest was adequately addressed by its policy requiring that the primary purpose for residing in the school district must
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not be school attendance. Major v. Nederland Independent School District, 772 F. Supp. 944 (E.D. Tex. 1991). 2. Physical presence and intent to remain in the school district is sufficient to establish residency in a school district, even though parents or legal guardians lived elsewhere. Byrd v. Livingston Independent School District, 674 F. Supp. 225 (E.D. Tex. 1987). See also Orozco ex rel. Arroyo v. Sobol, 674 F. Supp. 125 (S.D.N.Y. 1987).
Bona Fide Residence Requirement That Furthers State Interest Is Constitutional
Martinez v. Bynum Supreme Court of the United States, 1983. 461 U.S. 321, 103 S. Ct. 1838.
Justice POWELL delivered the opinion of the Court. This case involves a facial challenge to the constitutionality of the Texas residency requirement governing minors who wish to attend public free schools while living apart from their parents or guardians. Roberto Morales was born in 1969 in McAllen, Texas, and is thus a United States citizen by birth. His parents are Mexican citizens who reside in Reynosa, Mexico. He left Reynosa in 1977 and returned to McAllen to live with his sister, petitioner Oralia Martinez, for the primary purpose of attending school in the McAllen Independent School District. Although Martinez is now Morales’s custodian, she is not—and does not desire to become—his guardian. As a result, Morales is not entitled to tuition-free admission to the McAllen schools. Section 21.031(b) and (c) of the Texas Education Code would require the local school authorities to admit him if he or “his parent, guardian, or the person having lawful control of him” resided in the school district, Tex. Educ. Code Ann. § 21.031(b) and (c) (Supp. 1982), but § 21.031(d) denies tuition-free admission for a minor who lives apart from a “parent, guardian, or
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other person having lawful control of him under an order of a court” if his presence in the school district is “for the primary purpose of attending the public free schools.” Respondent McAllen Independent School District therefore denied Morales’s application for admission in the fall of 1977. . . . This Court frequently has considered constitutional challenges to residence requirements. On several occasions the Court has invalidated requirements that condition receipt of a benefit on a minimum period of residence within a jurisdiction, but it always has been careful to distinguish such durational residence requirements from bona fide residence requirements. . . . We specifically have approved bona fide residence requirements in the field of public education. The Connecticut statute before us in Vlandis v. Kline, 412 U.S. 441, 93 S. Ct. 2230 (1973), for example, was unconstitutional because it created an irrebuttable presumption of nonresidency for state university students whose legal addresses were outside of the State before they applied for admission. The statute violated the Due Process Clause because it in effect classified some bona fide state residents as nonresidents for tuition purposes. But we “fully recognize[d] that a State has a legitimate interest in protecting and preserving . . . the right of its own bona fide residents to attend [its colleges and universities] on a preferential tuition basis.” This “legitimate interest” permits a “State [to] establish such reasonable criteria for in-state status as to make virtually certain that students who are not, in fact, bona fide residents of the State, but who have come there solely for educational purposes, cannot take advantage of the in-state rates.” Last Term in Plyler v. Doe, 457 U.S. 202, 102 S. Ct. 2382, (1982), we reviewed an aspect of Tex. Educ. Code Ann. § 21.031—the statute at issue in this case. Although we invalidated the portion of the statute that excluded undocumented alien children from the public free schools, we recognized the school districts’ right “to apply . . . established criteria for determining residence.” . . . A bona fide residence requirement, appropriately defined and uniformly applied, furthers the substantial state interest in assuring that services provided for its residents are enjoyed only by residents. Such a requirement with respect to attendance in public free schools does not violate the Equal Protection Clause of the Fourteenth
Amendment. It does not burden or penalize the constitutional right of interstate travel, for any person is free to move to a State and to establish residence there. A bona fide residence requirement simply requires that the person does establish residence before demanding the services that are restricted to residents. . . . The provision of primary and secondary education, of course, is one of the most important functions of local government. Absent residence requirements, there can be little doubt that the proper planning and operation of the schools would suffer significantly. The State thus has a substantial interest in imposing bona fide residence requirements to maintain the quality of local public schools. The central question we must decide here is whether § 21.031(d) is a bona fide residence requirement. Although the meaning may vary according to context, “residence” generally requires both physical presence and an intention to remain. As the Maine Supreme Court explained over a century ago, when . . . a person voluntarily takes up his abode in a given place, with intention to remain permanently, or for an indefinite period of time; or, to speak more accurately, when a person takes up his abode in a given place, without any present intention to remove therefrom, such place of abode becomes his residence. . . . Inhabitants of Warren v. Inhabitants of Thomaston, 43 Me. 406, 418 (1857).
This classic two-part definition of residence has been recognized as a minimum standard in a wide range of contexts time and time again. . . . But at the very least, a school district generally would be justified in requiring school-age children or their parents to satisfy the traditional, basic residence criteria—i.e., to live in the district with a bona fide intention of remaining there—before it treated them as residents. Section 21.031 is far more generous than this traditional standard. It compels a school district to permit a child such as Morales to attend school without paying tuition if he has a bona fide intention to remain in the school district indefinitely, for he then would have a reason for being there other than his desire to attend school: his intention to make his home in the district. Thus, § 21.031 grants the benefits of residency to all who satisfy the traditional requirements. The
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Homeless Children
statute goes further and extends these benefits to many children even if they (or their families) do not intend to remain in the district indefinitely. As long as the child is not living in the district for the sole purpose of attending school, he satisfies the statutory test. . . . The Constitution permits a State to restrict eligibility for tuition-free education to its bona fide residents. We hold that § 21.031 is a bona fide residence requirement that satisfies constitutional standards. The judgment of the Court of Appeals accordingly is Affirmed.
CASE NOTES 1. School districts may inquire as to the reason for the change in the custody of a child and can deny admission if the parent’s purpose is to circumvent the school district’s zoning requirements. In the Matter of Curry, 113 Mich. App. 821, 318 N.W.2d 567 (1982). 2. A change in student residence simply to participate in an athletic program may be denied by athletic association rules without violating a student’s property rights. Pennsylvania Interscholastic Athletic Association, Inc. v. Greater Johnstown School District, 76 Pa. Cmmw. 65, 463 A.2d 1198 (1983). 3. The Arkansas Supreme Court has held that children residing in one school district could pay tuition and attend school in another school district, but only if both school districts agree to the arrangement. Delta Special School District No. 5 v. McGehee Special School District No. 17, 280 Ark. 489, 659 S.W.2d 508 (1983).
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Homeless Children
Disparities in wealth and income among families have continued to increase during the last three decades to the point that the present level of inequality places the United States near the bottom of the 30 major developed countries of the world. Moreover, as Heckman and Krueger document in the book Inequality in America, intergenerational mobility, movement among economic classes, is less than in most advanced countries. They observe that “statistics paint a picture in which the United States has become a more polarized and static society, one in which children has become comparatively more disadvantaged.”70
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As great numbers of families are relegated to poverty, homelessness has become a more visible and serious problem for the American social structure, generally, and the public schools in particular. Homeless children are constantly on the move among states and school districts as their itinerant parents or guardians search for livelihood. Government social spending to ameliorate the poverty is also relatively low in the United States compared to other developed countries. Hills shows that for social spending, health care, education, and social security, the United States ranks sixteenth next to Japan at the bottom of 17 developed countries.71 Even though the United States has provided comparatively little financial and service support for families and children in poverty, recognition of the problem has not gone entirely unattended. One of the measures taken by the federal government has been a largely unfunded mandate that states and local school districts must provide an education for homeless children. The federal law commonly known as the McKinney-Vento Homeless Assistance Act, and formally named Education for Homeless Children and Youths (EHCY), ensures that homeless children have access to public school educations.72 The general statutory requirement states that “Each state educational agency shall ensure that each child of a homeless individual and each homeless youth” must have equal access to a “free, appropriate public education.” The requirement includes preschool education where preschool education is provided to other children and youths.73 The Act requires that states revise any school attendance laws or other laws that may act as “barriers to enrollment, attendance, or success in school of homeless children and youths.”74 Other subparts of the law prohibit states from segregating homeless children or youth into separate schools or into separate programs within schools.75 The law further requires that the homeless child or youth must be kept in the “school of origin” except when such is contrary to the wishes of the child’s or youth’s parent or guardian. 76 Litigation pursuant to McKinney-Vento and to state laws for the homeless has become more frequent as the numbers of homeless rise. A New York court has held in an action brought by the National Law Center on
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Homeless and Poverty, that the McKinney-Vento Act creates a private right of action, that the Congress intended to create individually enforceable rights, and families have a right to file claims under the Equal Protection Clause of the Fourteenth Amendment.77 School districts operating under state law usually require that school districts in which a student is domiciled pay tuition to the school district in which the child is actually enrolled and/or pay reimbursement costs. The McKinney-Vento Act requires that the “school of origin” or school of enrollment provide the child immediate access and “comparable transportation services.” The transportation services must be comparable to those provided to other nonhomeless children. The effect of the Act is to require school districts to enroll the homeless child or youth in the school district where the student is actually living. The decision by the federal court in the National Law Center case, 2004, interpreting the McKinney-Vento law, to bestow a private right of action in parents of the homeless child and youth, is highly significant. Persons in poverty seldom seek enforcement of their rights in court for lack of knowledge of the law, and, of course, for lack of resources to hire legal counsel. The federal district court in New York observed that Congress had “clearly manifested an ‘unambiguous intent’ to confer individual rights”78 on the homeless and, therefore, legal fees. This court cited as authority a U.S. Court of Appeals case from the District of Columbia79 where the court ruled that the entitlement to education under the McKinney-Vento Act was given to the homeless child and youth by including: (1) the right of the parent or guardian to choose the school of origin or the school where students enroll in the locations; (2) immediate assistance in obtaining immunizations or medical records necessary for enrollment in the new school; (3) immediate enrollment in the school in which enrollment is sought; and (4) comparable transportation services to and from school.80 Each of these provisions vests the homeless parent, child, and youth with rights that are individually enforceable by actions for injunctions and damages. The court in the National Law Center case also held that under the precedent of Plyler v. Doe81 the Equal Protection Clause requires that all children similarly situated must be treated alike. Thus, according
to the court in the National Law Center case, the homeless have Equal Protection redress that can be vindicated for damages through application of Section 1983 of the Civil Rights Act. The issue of where the homeless child or youth actually lives may well be a point of legal contention. The residency issue has been dealt with in many state court decisions. In one such case a New York court has resolved the definition of “residence” as meaning physical presence in the district along with intent to remain there.82 In this case the court decided that the school district in which students lived with their mother before they were evicted from their home, rather than the school district in which they lived in a homeless shelter at the time they were placed in foster care, was the school district in which the students legally “resided.”83 In an earlier case, a lower New York state court ruled that children who live in a shelter for the homeless in a school district were entitled to be educated in the schools of that district regardless of whether their residency would be short or long, temporary or permanent, and regardless of whether their mother expressed a desire to have the children registered in the district where they previously attended school.84 The federal district court in New York held that school authorities had denied due process of law to “homeless” children when they were excluded from school on the grounds of nonresidency without proper notice. The homeless mother and her children were found to be entitled to nominal damages for violation of their procedural due process rights.85 The McKinney-Vento Act effectively carves out an exception for the homeless in state and local residency and domicile regulations. Movement of children among the many school districts in the United States has frequently led to litigation principally because taxpayers in one district did not want to pay for the education of children who live in another district. Similarly, state legislatures mandate that state universities charge higher tuition for out-of-state students. Such higher education nonresident tuition laws have been upheld by the courts.86 As the U.S. Supreme Court indicated in Martinez v. Bynum, 87 “A bona fide residence requirement, appropriately defined and uniformly applied, furthers the substantial state interest in assuring that services provided for its residents
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The Amish Exception
are enjoyed only by residents.” Thus, states and school districts can enact laws and regulations that govern residence and domicile of students; however, with the McKinney-Vento Act as a part of NCLB, the state agrees and contracts to abide by the requirements of that law for the homeless, notwithstanding the state and local laws and regulations that are in place to govern school attendance for other non-homeless students.
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The Amish Exception
After Pierce v. Society of Sisters,88 it was uniformly assumed that children could be compelled to attend a public, private, or parochial school, but that no child had a right not to attend school at all. Early cases established that the child’s and the parents’ rights of religious freedom, as protected by the First Amendment of the U.S. Constitution, were not sufficient to diminish the state’s power to compel compulsory attendance. Justice Cardozo, in a concurring opinion in Hamilton v. Regents89 (a case dealing with the rights of a conscientious objector), maintained that undesirable results may evolve where religious scruples predominate over reasonable state laws. In delivering the opinion, Cardozo said: Manifestly a different doctrine would carry us to lengths that have never yet been dreamed of. The conscientious objector, if his liberties were to be thus extended, might refuse to contribute taxes in furtherance of any other end condemned by his conscience as irreligious or immoral. The right of private judgment has never yet been so exalted above the powers and the compulsion of the agencies of government. One who is a martyr to a principle—which may turn out in the end to be a delusion or an error—does not prove by his martyrdom that he has kept within the law.90
Following this rationale, other courts have concluded that the individual cannot be permitted, on religious grounds, to be the judge of his or her duty to obey reasonable civil requirements enacted in the interest of public welfare. In a 1945 Virginia case, the parents of three families sought to prevent the enforcement of compulsory attendance laws on religious grounds. These parents interpreted the Bible as commanding parents to teach and train their own children. They believed that sending their children to public schools was incompatible with
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the primary religious obligation they felt they owed their Maker. Their willful intent to violate the law was solely because of sincere religious convictions. Yet, the court decided against the parents, and declared: No amount of religious fervor he [parent] may entertain in opposition to adequate instruction should be allowed to work a lifelong injury to his child. Nor should he, for this religious reason, be suffered to inflict another illiterate citizen on his community or his state.91
Although the religious issue was the ratio decidendi (the point of the case which determines the judgment) in this case, the court ruled that the parents were not capable of adequately educating the children themselves. Religious grounds have been ruled insufficient to limit the number of days a child attends school. A Muslim parent claimed that his religion prevented him from sending his children to school on Fridays. Regardless of the validity of his religious motives, the court said the state allowed parental choice among public, private, and parochial schools. The parent and child did not, however, have the option of nonattendance on Fridays.92 Thus, the prevailing view of the courts was that religious beliefs cannot impair achievement of the state’s objective—universal compulsory education. The precedent-setting case that has altered this view is Wisconsin v. Yoder.93 This case contested the power of the state to require the school attendance of Amish children after the eighth grade. Although the issue in this case is limited to the compulsory attendance of Amish children between the time they complete the eighth grade and the time they reach 16 years of age, it nevertheless has profound implications for all future cases involving compulsory attendance. The decision of the court in this case can be summarized in three points. First, although the state has power to impose reasonable regulation, this power must be balanced against fundamental rights and interests of individuals. Second, beliefs that are philosophical rather than personal are not sufficient to invoke free exercise of religion. Third, where parents show that enforcement of compulsory education will endanger their religious beliefs, the parens patriae power
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of the state must give way to the free exercise clause of the First Amendment. Two dramatic limitations on the general applicability of Yoder are the objection of the Amish to only post-eighth-grade compulsory attendance of 14- and 15-year-olds and the well-established Amish customs of living near the soil and shunning modern society generally. These features of the case tend to diminish the compelling interest of the state; they eliminate the possibility of illiteracy by providing at least eight years of schooling and negate the chance of these children becoming unproductive members of society. The ultimate question of who will determine the child’s destiny is not answered by Yoder. The Court is content, instead, to speak rather vaguely of balancing the fundamental religious freedom of the parents against the interest of the state. Litigation following Yoder indicates that the courts will tend to circumscribe the “Amish exception” very narrowly, and that in most instances requests to have other churches, religions, or religious views added to the list of valid exemptions from compulsory attendance are not likely to be granted. Actions by fundamentalist Baptists seeking to convince the courts that the Amish exemption should extend to their religion have been to no avail.94 Where the Amish exception is applied to one religious group and not to another,95 the courts have held that equal protection is not violated.
State Cannot Compel Amish Children to Attend Public High School
Wisconsin v. Yoder Supreme Court of the United States, 1972. 406 U.S. 205, 92 S. Ct. 1526.
. . . Respondents Jonas Yoder and Wallace Miller are members of the Old Order Amish religion, and respondent Adin Yutzy is a member of the Conservative Amish Mennonite Church. They and their families are residents of Green County,
Wisconsin. Wisconsin’s compulsory schoolattendance law required them to cause their children to attend public or private school until reaching age sixteen but the respondents declined to send their children, ages fourteen and fifteen, to public school after they completed the eighth grade. The children were not enrolled in any private school, or within any recognized exception to the compulsory-attendance law, and they are conceded to be subject to the Wisconsin statute. On complaint of the school district administrator for the public schools, respondents were charged, tried, and convicted of violating the compulsory-attendance law in Green County Court and were fined the sum of $5 each. Respondents defended on the ground that the application of the compulsory-attendance law violated their rights under the First and Fourteenth Amendments. . . . The history of the Amish sect was given in some detail, beginning with the Swiss Anabaptists of the sixteenth century who rejected institutionalized churches and sought to return to the early, simple, Christian life de-emphasizing material success, rejecting the competitive spirit, and seeking to insulate themselves from the modern world. As a result of their common heritage, Old Order Amish communities today are characterized by a fundamental belief that salvation requires life in a church community separate and apart from the world and worldly influence. This concept of life aloof from the world and its values is central to their faith. . . . Formal high school education beyond the eighth grade is contrary to Amish beliefs, not only because it places Amish children in an environment hostile to Amish beliefs, with increasing emphasis on competition in class work and sports and with pressure to conform to the styles, manners, and ways of the peer group, but also because it takes them away from their community, physically and emotionally, during the crucial and formative adolescent period of life. . . . The Amish do not object to elementary education through the first eight grades as a general proposition because they agree that their children must have basic skills in the “three R’s” in order to read the Bible, to be good farmers and citizens, and to be able to deal with non-Amish people when necessary in the course of daily
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The Amish Exception
affairs. They view such a basic education as acceptable because it does not significantly expose their children to worldly values or interfere with their development in the Amish community during the crucial adolescent period. Although Amish accept compulsory elementary education generally, wherever possible they have established their own elementary schools in many respects like the small local schools of the past. In the Amish belief, higher learning tends to develop values they reject as influences that alienate man from God. . . . There is no doubt as to the power of a State, having a high responsibility for education of its citizens, to impose reasonable regulations for the control and duration of basic education. See, e.g., Pierce v. Society of Sisters. . . . Providing public schools ranks at the very apex of the function of a State. Yet even this paramount responsibility was, in Pierce, made to yield to the right of parents to provide an equivalent education in a privately operated system. There the Court held that Oregon’s statute compelling attendance in a public school from age eight to age sixteen unreasonably interfered with the interest of parents in directing the rearing of their offspring, including their education in church-operated schools. As that case suggests, the values of parental direction of the religious upbringing and education of their children in their early and formative years have a high place in our society. . . . Thus a State’s interest in universal education, however highly we rank it, is not totally free from a balancing process when it impinges on fundamental rights and interests, such as those specifically protected by the Free Exercise Clause of the First Amendment, and the traditional interest of parents with respect to the religious upbringing of their children so long as they, in the words of Pierce, “prepare [them] for additional obligations.” . . . It follows that in order for Wisconsin to compel school attendance beyond the eighth grade against a claim that such attendance interferes with the practice of a legitimate religious belief, it must appear either that the State does not deny the free exercise of religious belief by its requirement, or that there is a state interest of sufficient magnitude to override the interest claiming protection under the Free Exercise Clause. . . . The essence of all that has been said and written on the subject is that only those interests of
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the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion. We can accept it as settled, therefore, that, however strong the State’s interest in universal compulsory education, it is by no means absolute to the exclusion or subordination of all other interests. . . . We come then to the quality of the claims of the respondents concerning the alleged encroachment of Wisconsin’s compulsory schoolattendance statute on their rights and the rights of their children to the free exercise of the religious beliefs they and their forbears have adhered to for almost three centuries. In evaluating those claims we must be careful to determine whether the Amish religious faith and their mode of life are, as they claim, inseparable and interdependent. A way of life, however virtuous and admirable, may not be interposed as a barrier to reasonable state regulation of education if it is based on purely secular considerations; to have the protection of the Religion Clauses, the claims must be rooted in religious belief. Although a determination of what is a “religious” belief or practice entitled to constitutional protection may present a most delicate question, the very concept of ordered liberty precludes allowing every person to make his own standards on matters of conduct in which society as a whole has important interests. Thus, if the Amish asserted their claims because of their subjective evaluation and rejection of the contemporary secular values accepted by the majority, much as Thoreau rejected the social values of his time and isolated himself at Walden Pond, their claims would not rest on a religious basis. Thoreau’s choice was philosophical and personal rather than religious, and such belief does not rise to the demands of the Religion Clauses. Giving no weight to such secular considerations, however, we see that the record in this case abundantly supports the claim that the traditional way of life of the Amish is not merely a matter of personal preference, but one of deep religious conviction, shared by an organized group, and intimately related to daily living. . . . As the society around the Amish has become more populous, urban, industrialized, and complex, particularly in this century, government regulation of human affairs has correspondingly become more detailed and pervasive. The Amish mode of life has thus come into conflict
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increasingly with requirements of contemporary society exerting a hydraulic insistence on conformity to majoritarian standards. So long as compulsory education laws were confined to eight grades of elementary basic education imparted in a nearby rural schoolhouse, with a large proportion of students of the Amish faith, the Old Order Amish had little basis to fear that school attendance would expose their children to the worldly influence they reject. But modern compulsory secondary education in rural areas is now largely carried on in a consolidated school, often remote from the student’s home and alien to his daily home life. As the record so strongly shows, the values and programs of the modern secondary school are in sharp conflict with the fundamental mode of life mandated by the Amish religion; modern laws requiring compulsory secondary education have accordingly engendered great concern and conflict. The conclusion is inescapable that secondary schooling, by exposing Amish children to worldly influences in terms of attitudes, goals, and values contrary to beliefs, and by substantially interfering with the religious development of the Amish child and his integration into the way of life of the Amish faith community at the crucial adolescent stage of development, contravenes the basic religious tenets and practice of the Amish faith, both as to the parent and the child. The impact of the compulsory-attendance law on respondents’ practice of the Amish religion is not only severe, but inescapable, for the Wisconsin law affirmatively compels them, under threat of criminal sanction, to perform acts undeniably at odds with fundamental tenets of their religious beliefs. . . . In sum, the unchallenged testimony of acknowledged experts in education and religious history, almost 300 years of consistent practice, and strong evidence of a sustained faith pervading and regulating respondents’ entire mode of life support the claim that enforcement of the State’s requirement of compulsory formal education after the eighth grade would gravely endanger if not destroy the free exercise of respondents’ religious beliefs. . . . The State advances two primary arguments in support of its system of compulsory education. It notes, as Thomas Jefferson pointed out early in our history, that some degree of education is
necessary to prepare citizens to participate effectively and intelligently in our open political system if we are to preserve freedom and independence. Further, education prepares individuals to be self-reliant and selfsufficient participants in society. We accept these propositions. However, the evidence adduced by the Amish in this case is persuasively to the effect that an additional one or two years of formal high school for Amish children in place of their long-established program of informal vocational education would do little to serve those interests. Respondents’ experts testified at trial, without challenge, that the value of all education must be assessed in terms of its capacity to prepare the child for life. It is one thing to say that compulsory education for a year or two beyond the eighth grade may be necessary when its goal is the preparation of the child for life in modern society as the majority live, but it is quite another if the goal of education be viewed as the preparation of the child for life in the separated agrarian community that is the keystone of the Amish faith. . . . The State attacks respondents’ position as one fostering “ignorance” from which the child must be protected by the State. No one can question the State’s duty to protect children from ignorance but this argument does not square with the facts disclosed in the record. Whatever their idiosyncrasies as seen by the majority, this record strongly shows that the Amish community has been a highly successful social unit within our society, even if apart from the conventional “mainstream.” Its members are productive and very law-abiding members of society; they reject public welfare in any of its usual modern forms. The Congress itself recognized their selfsufficiency by authorizing exemption of such groups as the Amish from the obligation to pay social security taxes. . . . Insofar as the State’s claim rests on the view that a brief additional period of formal education is imperative to enable the Amish to participate effectively and intelligently in our democratic process, it must fall. The Amish alternative to formal secondary school education has enabled them to function effectively in their day-to-day life under self-imposed limitations on relations with the world, and to survive and prosper in
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The Amish Exception
contemporary society as a separate, sharply identifiable and highly self-sufficient community for more than 200 years in this country. In itself this is strong evidence that they are capable of fulfilling the social and political responsibilities of citizenship without compelled attendance beyond the eighth grade at the price of jeopardizing their free exercise of religious belief. When Thomas Jefferson emphasized the need for education as a bulwark of a free people against tyranny, there is nothing to indicate he had in mind compulsory education through any fixed age beyond a basic education. Indeed, the Amish communities singularly parallel and reflect many of the virtues of Jefferson’s ideal of the “sturdy yeoman” who would form the basis of what he considered as the ideal of a democratic society. Even their idiosyncratic separateness exemplifies the diversity we profess to admire and encourage. . . . There is no intimation that the Amish employment of their children on family farms is in any way deleterious to their health or that Amish parents exploit children at tender years. Any such inference would be contrary to the record before us. Moreover, employment of Amish children on the family farm does not present the undesirable economic aspects of eliminating jobs that might otherwise be held by adults. Finally, the State, on authority of Prince v. Massachusetts, argues that a decision exempting Amish children from the State’s requirement fails to recognize the substantive right of the Amish child to a secondary education, and fails to give due regard to the power of the State as parens patriae to extend the benefit of secondary education to children regardless of the wishes of their parents. Taken at its broadest sweep, the Court’s language in Prince might be read to give support to the State’s position. However, the Court was not confronted in Prince with a situation comparable to that of the Amish as revealed in this record; this is shown by the Court’s severe characterization of the evils that it thought the legislature could legitimately associate with child labor, even when performed in the company of an adult. . . . This case, of course, is not one in which any harm to the physical or mental health of the child or to the public safety, peace, order, or welfare has been demonstrated or may be properly inferred. The record is to the contrary, and any
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reliance on that theory would find no support in the evidence. . . . For the reasons stated we hold, with the Supreme Court of Wisconsin, that the First and Fourteenth Amendments prevent the State from compelling respondents to cause their children to attend formal high school to age sixteen. . . . It cannot be overemphasized that we are not dealing with a way of life and mode of education by a group claiming to have recently discovered some “progressive” or more enlightened process for rearing children for modern life. Aided by a history of three centuries as an identifiable religious sect and a long history as a successful and self-sufficient segment of American society, the Amish in this case have convincingly demonstrated the sincerity of their religious beliefs, the interrelationship of belief with their mode of life, the vital role that belief and daily conduct play in the continued survival of Old Order Amish communities and their religious organization, and the hazards presented by the State’s enforcement of a statute generally valid as to others. Beyond this, they have carried the even more difficult burden of demonstrating the adequacy of their alternative mode of continuing informal vocational education in terms of precisely those overall interests that the State advances in support of its program of compulsory high school education. In light of this convincing showing, one that probably few other religious groups or sects could make, and weighing the minimal difference between what the State would require and what the Amish already accept, it was incumbent on the State to show with more particularity how its admittedly strong interest in compulsory education would be adversely affected by granting an exemption to the Amish. . . . Nothing we hold is intended to undermine the general applicability of the State’s compulsory school-attendance statutes or to limit the power of the State to promulgate reasonable standards that, while not impairing the free exercise of religion, provide for continuing agricultural vocational education under parental and church guidance by the Old Order Amish or others similarly situated. The States have had a long history of amicable and effective relationships with church-sponsored schools, and there is no basis for assuming that, in this related context,
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reasonable standards cannot be established concerning the content of the continuing vocational education of Amish children under parental guidance, provided always that state regulations are not inconsistent with what we have said in this opinion. Affirmed.
The language defining “truancy” in a Wisconsin statute reads as follows: “Truancy” means any absence of part or all of one or more days from school during which the school attendance officer, principal or teacher has not been notified of the legal cause of such absence by the parent or guardian of the absent pupil, and also means intermittent attendance carried on for the purpose of defeating the intent of s. 188.15. (emphasis added)
CASE NOTES 1. Limited Reach of Yoder. After Yoder, Baptist parents in Iowa sought exemption from that state’s compulsory attendance law, citing the “Amish exception” as legal authority. The parents insisted only that their church should be able to teach their children in their own way with books and teachers of their choice. The Iowa Supreme Court held against the parents and distinguished the Baptist from the Amish situation. The court applied the Yoder factors: (1) sincerity of commitment to a long history of established religion; (2) intricate relationship between religious beliefs and mode of life; (3) vital role of beliefs to the culture; (4) hazards to the religion by enforcing compulsory education laws; and (5) the vocational education aspect of the religion. According to the court, the Baptist’s claim was found wanting. Yoder and this case were litigated before the wholesale homeschooling movement whereby state legislatures created the major exceptions to compulsory attendance laws. Johnson v. Charles City Community Schools Board of Education, 368 N.W.2d 74, (1985). 2. Religious or Politics. The Virginia compulsory attendance statute provides that “[a] school board . . . [s]hall excuse from attendance at school any pupil who, together with his parents, by reason of bona fide religious training or belief, is conscientiously opposed to attendance at school.” This statutory provision also states, “The term bona fide religious training or belief does not include essentially political, sociological, or philosophical views or merely a personal moral code.” The Virginia Supreme Court ruled a school board did not need to state the reasons for denying a religious exemption. Johnson v. Prince William County School Board, 241 Va. 383, 404 S.E.2d 209 (1991). 3. Truancy. Under compulsory attendance laws, the state may define what constitutes truancy.
A Wisconsin court, in interpreting this statute, said: The standard is clear. Attendance without statutory excuse or excuse by the school board is compulsory. Failure to attend even a period of the day not excused is considered truancy. . . . A person in control [of the child] must see to it that the child attends unless there is a statutory excuse. If the child does not attend, the child is truant.
The court said that a person of ordinary intelligence would deduce from this statute that any unexcused absence of part of a day or all of one day is a deviation from the constant and uniform. It is a truancy. Five such occasions out of ten consecutive days or part or all of 10 or more days in a semester means that the child is termed a habitual truant. Sections 118.16(1) (a)1.2. Less than that is nonetheless a truancy. This is further notice that any absence is considered irregular. (emphasis added) Wisconsin v. White, 509 N.W.2d 434 (Wis. App. 1993).
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Homeschooling
In recent years, state legislatures have increasingly amended state compulsory attendance laws to permit homeschooling. Some states have extensive regulation of homeschools, whereas others exercise very little oversight. Correspondingly, quite naturally, litigation has greatly increased in this area, usually involving three issues: (1) statutory interpretation of homeschool exemptions; (2) complaints regarding state requirements for home teachers’ qualifications; and (3) state evaluations of the home instruction programs. Parents do not have a constitutional right to maintain home instruction for their children, and specifically parental rights of free exercise of religion are not abridged by a state’s denial of
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homeschooling.96 The state may compel all children to attend a school, public or private, and home instruction does not suffice as an exemption from compulsory attendance requirements unless a state statute so allows. The rationale for subordinating a parent’s desire to homeschool a child to the state’s interest to have the child attend a public or private school is best summarized by Butts and Cremin: Clearly, the child has a right to education. If governments are instituted among men to secure to all enjoyment of their rights, then what objection could be raised to the government compelling parents and guardians to send their children to school?97
Parents have the liberty to “direct the upbringing and education” of their children under their control, as enunciated in Meyer v. Nebraska,98 and they not only have the right to nurture and direct their children’s destiny, but a “high duty to recognize and prepare them for additional obligations.”99 The state cannot unreasonably interfere with that right;100 however, the right of parents to control their children is not absolute and the state can step in when necessary to protect a child. The balance between parental rights and state power is explained by the Supreme Court in Prince v. Massachusetts,101 in which instance the Court upheld child labor laws prohibiting a guardian from directing a 9-year-old child to solicit the sale of religious newspapers on the streets for Jehovah’s Witnesses. The Court acknowledged that there is a “private realm of family life which the state cannot enter,” but admonished that “the family itself is not beyond regulation in the public interest,”102 where the state may act to “guard the general interest in youth’s well-being.” 103 Religious beliefs and purposes claimed by parents are insufficient to transcend the state’s interest in preventing parental decisions and choices that are exploitive and harmful to children. In this regard, Levinson points out that it is “simply false to suggest” that “the family is or should be completely independent of the state.” 104 She says, “None of us believes that parents have a right to do anything they wish to their children. The state has to have some notion of the child’s fundamental interests, including her future interests, and has some right to interfere in the family based on this account.”105
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Thus, there exists an obligation on the part of the state to set forth and protect the interests of the child, whether it concerns health, education or welfare. To allow parents, at will, to nullify the effects of compulsory attendance laws would have a detrimental effect on society as a whole and would allow the parent to limit and restrict the ultimate development and future prospects of the child. Assuming that parents could provide at home as thoroughly comprehensive and varied a curriculum as at school, courts interpreting permissive statutes may still hold that having the child physically in school with other children is a valuable socialization process, the fostering of which is in the state’s interest, for which home instruction cannot be an adequate substitute. Public school proponents normally reject the idea of homeschooling for the simple reason that the sequestration of children in the home, insulated from society and other children, will inhibit social consciousness and prevent the child from living a normal and productive life. A New Jersey court has said that “[c]loister and shelter have their place but not in the everyday give and take of life.”106 Moreover, a legislature’s denial of home instruction does not violate the Equal Protection Clause of the Fourteenth Amendment. A New Mexico court has held that the state need only to show that such denial is rationally related to a legitimate state purpose. The state’s desire to have children attend school with other children of their age is an appropriate and defensible state interest. This court said, “By bringing children into contact with some person, other than those in the excluded group, those children are exposed to at least one other set of attitudes, values, morals, lifestyles and intellectual abilities.”107 An Oregon appellate court has held that the state does not deny equal protection when it distinguishes between children taught in a private school and those taught by parents or a private teacher in home instruction. The state may clearly have a rational basis for such distinctions.108 Courts will uphold reasonable state criteria to qualify for a home school and for an exemption from compulsory attendance. Where a statute provided that parents must show a “manifest educational hardship” for an exemption from compulsory attendance, the court said that it was
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not sufficient that parents show merely one criterion of manifest educational hardship. A state board of education may require adherence to one or more criteria, such as the competency of parents to teach, the scope of the subject matter, the child’s potential for interaction with peers and adults, and the teaching methods to be employed, before the exemption is considered valid.109 An early Washington case rejected the assertion that a home is a private school. In that instance, the parent claimed his home instruction was authorized by a statute providing that children must attend “the public school of the district in which the child resides, for the full time such school may be in session, or . . . attend a private school for the same time.” The parent further claimed that he was a qualified and competent teacher to give home instruction within the definition of the statute. This claim was rejected by the court, which explained: We do not think that the giving of instruction by a parent to a child, conceding the competency of the parent to fully instruct the child in all that is taught in the public schools, is within the meaning of the law “to attend a private school.” Such a requirement means more than home instruction; it means that the same character of school as the public school, a regular, organized and existing institution making a business of instructing children of school age in the required studies and for the full time required by the laws of this state. . . . There may be a difference in institution and government, but the purpose and end of both public and private schools must be the same—the education of children of school age. The parent who teaches his children at home, whatever be his reason for desiring to do so, does not maintain such a school.110
The state can exercise reasonable supervision over home instruction to guarantee that students obtain an adequate education. If parents impose an unreasonable burden on the state’s performance of its supervisory duties, the home instruction may not be allowed. For example, a situation may arise where parents use education units so small or facilities of such doubtful quality that supervision creates an unusual expense for the state. The state requires that proper educational facilities be provided for the child and supplied in a way that the state can ascertain facts about the instructional program and maintain a proper direction without undue cost.111
Home instruction has also been challenged because it does not comply with statutory requirements that a child attend a public, private, denominational, or parochial school and be taught by a competent instructor. In Kansas, the legislature reenacted a compulsory attendance law that defined the meaning of the term private school, leaving out a former provision for home instruction as a valid exemption from compulsory attendance. The court said that the exclusion of home instruction from the definition of private school while including private, denominational, and parochial school instruction as valid, indicated legislative intent to disallow home instruction as an excuse for non-attendance.112 Another Kansas case distinguished between a “private school” and “scheduled home instruction.” Here, parents operated a “school,” serving as tutors themselves, with only their own children in attendance. The only grades taught were those in which their own children were enrolled. The court interpreted this as falling short of the definition of a private school, and it ruled that the instruction given did not meet statutory private school requirements. In the court’s view, the program was nothing more than “home instruction.”113 Sometimes the line between a private school and a home school becomes rather indistinct. Regardless, the state has an interest in the quality of the program. Parents are resistant at times to evaluations of their homeschooled or privateschooled children that are imposed by the state to determine levels of academic achievement when they seek to transfer credits and enroll in public schools. In a Texas case, a student who attended a non-accredited private Christian academy sought to transfer during the eleventh grade. Not only was the private school she attended not accredited, but further, teachers were not required to be certified, students were “self-directed” with few standards for class work or grades, and credit was sometimes awarded without testing. School board policy in the district to which the student aspired to enroll required that students who had taken courses in institutions other than fully accredited public or private schools must be tested and achieve a specified score. If a student from a non-accredited school wished to avoid the tests, options were provided by which the student could complete correspondence courses or
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Homeschooling
take an additional year in the public school. The homeschooled student refused to take the tests, ignored other options and sued, claiming denial of free exercise of religion and equal protection. The court rejected both claims. With regard to free exercise, the court said that because the policy applied to all students who wished to transfer, the testing policy was religion-neutral. Regarding equal protection, the court concluded that the policy was rationally related to a legitimate state interest, and was therefore constitutional.114 Courts in some jurisdictions have established that home instruction may constitute “private school” in contemplation of the law. For example, a parent who employs a competent noncertified school teacher to instruct his or her child in the same curriculum and for the same period of time as the public schools thereby complies with the law that requires instruction in a public, private, or parochial school.115 In commenting on this situation, an Indiana court said: The law was made for the parent who does not educate his child, and not for the parent who employs a teacher and pays him out of his private purse, and so places within the reach of the child the opportunity and means of acquiring an education equal to that obtainable in the public schools of the State.116
If a state statute allows for home instruction as an alternative to compulsory attendance, the burden falls on the state to show that the parent is not, in fact, providing such instruction. If the state has set out few standards governing home instruction, the inadequacy of such instruction may be difficult to prove. The state must produce evidence documenting the parent’s failure to furnish adequate home instruction and the parent must respond to such evidence.117 However, the final burden of proof rests on the state to show that the instruction failed to meet state requirements. Once a state decides to permit the homeschooling exemption from compulsory attendance, a further decision must be made as to whether the home instruction should be subject to statemandated quality standards. Most states do have such requirements, although the enforcement of these standards may be rather lax in many circumstances. In Massachusetts, the quality of home instruction is subject to home instruction plan requirements developed by the local school
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committee. The plan is enforced by periodic observation and evaluation by the local school superintendent or designee. A Massachusetts court has upheld the validity of this process, but has said that “the approval of a homeschool proposal must not be conditioned on requirements that are not essential to the state interest in ensuring that ‘all the children shall be educated.’ ”118 This court observed that periodic standardized testing or periodic progress reports conducted in lieu of formal testing were acceptable methods to evaluate the educational progress of homeschooled children. The court elaborated on guidelines and procedures that should be followed in the school districts’ review and approval of home instruction plans. The school district must adhere to certain basic standards of fairness and due process. Parents must be given an opportunity to present their proposed plan and present witnesses in their behalf. In such a hearing, the parents bear the responsibility of demonstrating that the home instruction proposed will equal, in “thoroughness and efficiency,” the progress that the child could obtain in the public school. If the parents’ proposal is rejected, the school must give detailed reasons for the denial and the parents must be given an opportunity to revise the proposal to correct inadequacies. Beyond procedural fairness, the Massachusetts court set out certain substantive factors that should be required in a home instruction plan. Primary among these are that the proposed curriculum, the length of school year, and the number of hours of instruction should be comparable to the requirements of the public schools. For parents to argue to replace “state educational requirements with their own idiosyncratic views of what knowledge a child needs to be a productive member of society”119 will have little support from the courts. Further, the Massachusetts court said that the school district could examine the competency of the parents to teach the children. Competency does not necessarily need to be tied to state certification of the parent as a teacher; nevertheless, the parent must be found, by some appropriate criteria of the school district, to be competent to teach. Thus, inquiry into the academic or other credentials of the parent or parents who plan to instruct the children is relevant to an approvable home instruction plan. The textbooks and teaching materials must be made
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available to the school district, even though the district cannot utilize access to such materials to dictate the manner in which the subjects are to be taught. Finally, the Massachusetts court pointed out that the school district could “properly require periodic standardized testing to ensure educational progress and the attainment of minimum standards.”120 Other means of evaluating the progress of the homeschooled child may be required, such as portfolios and work samples. All of these criteria may not be necessary or permitted under the laws of other states, however; but the guidelines set forth by the Massachusetts court provide a good summation of what is probably the general view of the courts among the states. Several of these issues have arisen in other jurisdictions with much agreement but with some conflicting results. One of the most contentious and litigious of these issues is the qualification of parents to teach their children. For example, Michigan’s Supreme Court held that homeschool teachers could not be required to hold state teacher certification because certification is not required for private school teachers, and some public schools are forced at times to employ noncertified teachers.121 Other jurisdictions have held that it is a state prerogative to require homeschool teachers to have a valid teacher’s certificate and such a requirement does not violate the Equal Protection Clause of the Fourteenth Amendment.122 Similarly, a North Dakota court has held that requiring children taught at home to be instructed by a parent with a teacher’s certificate does not violate the parent’s free exercise of religion.123 Cherry Picking. Parents conducting home schools frequently decide that home instruction is insufficient to meet their children’s total educational needs, so they seek to selectively enroll their children in public school programs of their own choosing. Most popular among homeschool parents for such “cherry picking” are athletics and other extracurricular programs such as band, and high-cost academic programs, usually chemistry, physics, and/or special education. Of course, it is up to the state legislatures to decide how much latitude is to be given to homeschoolers to come and go in and out of the public schools. Several states have passed legislation allowing such part-time alternatives. For example, a North Dakota statute reads,
“A child receiving home education may participate in extracurricular activities,” whereas a Minnesota statute states that “the Board shall allow all resident pupils receiving home instruction . . . to be eligible to fully participate in extracurricular activities on the same basis as public school students.” Yet, to deny such part-time coming and going does not deny the homeschooled their free exercise of religion.124 There is no fundamental right to athletic participation and neither state nor federal constitutions require that states arrange for interscholastic sports participation for homeschooled students.125 Moreover, parents of homeschooled students cannot successfully maintain that state high school athletic association rules, excluding private schools from public school interscholastic competition, are violative of parent or student rights under either the Equal Protection Clause of the Fourteenth Amendment or the Free Exercise Clause of the First Amendment.126 In this regard, a Maine court has said that homeschooled students can participate in public school interscholastic athletic programs or they can go to a private school and participate there; however, they cannot compel the public school athletic association to admit private schools simply to permit the homeschooled student to participate in the public school competition via the route of the private school.127 School administrators are particularly concerned about serving children with disabilities who are kept at home by parents for home instruction. The Individuals with Disabilities Education Act (IDEA)128 provides for free and appropriate education for all students with disabilities, discussed in a later chapter of this book. Under IDEA, states have the discretion to determine whether home education qualifies as a “private school.” IDEA regulations require that local school districts must provide services to students with disabilities in “private schools,” funded under a separate formula. A state may decide whether to include homeschooling under the definition of private or nonpublic schools. New Jersey, in exercising this discretion, clearly denied homeschooled children from inclusion in the IDEA benefits. A New Jersey court determined that even though a homeschooled child with a disability is not statutorily entitled to services, that nonetheless, for the state to not serve the child violates the Equal Protection Clause
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of the Fourteenth Amendment. The court reasoned that if the state provided the services to all other similarly situated students in both public and nonpublic schools, the homeschooled child could not be excluded.129 The Ninth Circuit Court of Appeals reached another conclusion when presented with a similar set of facts. In this case, a child was denied special educational services before the state amended its special education law to authorize services for homeschooled children. In examining the facts, the Ninth Circuit concluded that IDEA regulations provide special services for only three categories of children: those enrolled in public schools, those placed in private schools by state agencies, and those placed in private schools by parental choice.130 The question was whether a homeschooled child had a right under IDEA, or constitutional due process or equal protection to be included in the third category. The court ruled in the negative, holding: Nevada and its school districts have a legitimate interest in promoting educational environments that fulfill those qualifications that the state deems important. Limiting IDEA services to qualified “private schools” reasonably advances that interest by steering scarce educational resources toward those qualified educational environments.131
Thus, had the Nevada law not been amended, the homeschooled child would have, of necessity, needed to enroll in either a public school or a private school to be eligible to receive IDEA services. Homeschooling, unless classified as a private school, can effectively deny children with disabilities a free and appropriate education if parents are derelict in their duties and fail to cooperate with school districts. In recognition of the problem of neglectful parents, Vermont enacted as part of its homeschool statute a provision to ensure adequate education of homeschooled children with disabilities. The Vermont Home Study Law provides “a minimum course of study . . . adapted in each area of study . . . to the age and ability of each child and adapted to any handicapping condition of the child.” In a case involving this statute, parents submitted a form to the state indicating that their homeschooled child was not handicapped, and it was signed by an early childhood teacher. The state requested further information on the method of screening
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for disabilities. When litigated, the court ruled that the parents must provide sufficient information to show whether the child was handicapped and a “conclusory opinion” by just any professional educator is not sufficient. The court said that the Vermont Home Study statute “. . . reflects a careful balance between the interests of the state in ensuring that the students receive an adequate education and the right of the parent to direct the education of their children.”132 In the final analysis, the homeschool exception to compulsory attendance laws represents a choice made by legislatures to accommodate parents who believe for any number of reasons that they are more capable of educating their children than established public and/or private schools. In the absence of such statutes creating homeschool exemptions from compulsory attendance laws, parents have no fundamental right to homeschool their children.133 As a legislative creation, compulsory attendance laws can be modified, changed, riddled with exceptions, or simply done away with if the state legislature so decides.134 However, a legitimate question does arise regarding the legislature’s fidelity to its own state constitution that may require a comprehensive system of public education that is “uniform,” “thorough,” and “efficient” for every child in the state. For a state to derogate too extensively from that obligation with a plethora of exceptions could be the source of the future legislation.
School Board Rule Denying Part-Time Attendance of a Homeschooled Child Does Not Violate Free Exercise Clause of Hybrid Rights of Child and Parents
Swanson v. Guthrie Independent School District I-L United States Court of Appeals, Tenth Circuit, 1998. 135 F.3d 694.
Annie Swanson and her parents as next friends (Plaintiffs) appeal the district court’s grant of summary judgment to Defendants. Annie had
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filed suit claiming that Defendants’ refusal to allow her to attend public school on a part-time basis violated her rights under the Free Exercise Clause of the United States Constitution, her parents’ constitutional right to direct her education, and her rights under Oklahoma state law. We affirm the judgment of the district court. (Hybrid Rights Claim. The Supreme Court carved out an exception to the validity of state laws that were facially neutral and, therefore, valid, if the plaintiff could establish that the neutral, impartial law, 1) compromised the right of free exercise of religion and, also, 2) another independent constitutional right.) Oregon v. Smith, 494 U.S. 872, 110 S. Ct. 1595 (1990). Annie has been homeschooled by her parents since she started school. The purpose behind the homeschooling is religious—Annie’s parents wish to be able to teach her Christian principles that are excluded from the public school curriculum. When Annie reached the seventh grade, her parents decided that she would benefit by taking a few classes at the public school. Annie’s parents believed the public school’s ability to teach certain classes (particularly foreign language classes, vocal music, and some science classes) was superior to their instructional capability in those areas, and that attending some classes at the public school would better prepare Annie for college. Annie’s parents spoke to the then superintendent of schools and received permission for her to attend two seventh-grade classes for the last nine weeks of the school year. She attended those classes, performed very well in them, and caused no disruption to the school system. Annie then pre-registered for two classes for the eighth grade. Before she began school, however, Defendant Bowman was hired as the new superintendent. He refused to allow Annie to attend the eighth grade on a part-time basis, and told her parents they would need permission from the school board. He also made some statements that Mrs. Swanson interpreted as criticism of Christian homeschoolers. . . . At the September meeting of the school board the board voted to adopt the following part-time attendance policy: It is the policy of the Guthrie Board of Education that all students enrolling in Guthrie Public Schools must do so on a full-time basis. Full-time basis shall be defined as attending classes for the
full instructional day within the public school system or in conjunction with another state accredited institution such as vocational-technical school or a college or university for concurrent enrollment. The only exceptions to this policy shall be for fifthyear seniors and special education students whose IEP’s require variations of student schedules. . . .
The Board feared that Annie’s request, if granted, could set a precedent allowing other homeschooled children as well as private-school students to use the public school’s facilities on an as-wanted basis, without a corresponding increase in state financial aid. Pursuant to the board’s policy, Annie was not allowed to take classes of her choice from the public school during the 1994–95 school year, or to otherwise attend the public school on a part-time basis. . . . The question at issue in this case is the validity of the rule or regulation enacted by the school board, as it impacts on Plaintiffs’ right to the free exercise of their religion. Plaintiffs maintain that the part-time attendance policy is a burden, albeit indirect, on the full and free exercise of their religious beliefs concerning the way in which children should be raised and educated. Therefore, they argue, the policy should be subjected to a type of strict scrutiny, requiring that it be justified by a compelling governmental interest and that it be narrowly tailored to meet that interest. . . . Defendants, on the other hand, contend that the policy is a neutral policy of general applicability that need not satisfy the compelling governmental interest requirement. In the alternative, they claim there were compelling governmental interests at stake in the adoption of the part-time attendance policy. As a general proposition, a law (or policy) that is neutral and of general applicability need not be justified by a compelling governmental interest even if that law incidentally burdens a particular religious practice or belief. . . . On its face, the policy enacted by the school board in this case is neutral and of general application—it applies to all persons who might wish to attend public school on a part-time basis, and prohibits such part-time attendance (with certain specific exceptions, such as fifth-year seniors and special education students). It applies to students who are homeschooled for secular reasons as well as those homeschooled for religious reasons, and it applies to students attending private schools
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Homeschooling
whether or not those private schools are religious or secular in orientation. . . . We are therefore left with the fact that the board’s policy is a neutral policy of general applicability. Plaintiffs do not attempt to argue that the policy directly burdens their right to free expression, nor could they. The policy does not prohibit them from homeschooling Annie in accordance with their religious beliefs, and does not force them to do anything that is contrary to those beliefs. . . . The board’s policy therefore does not violate traditional free-exercise principles. . . . Plaintiffs point out that parents have a constitutional right to raise and educate their children, and that the part-time attendance policy infringes on this right as well as on the free-exercise right discussed above. Therefore, according to Plaintiffs, the compelling interest, closely tailored analysis must be applied to determine the validity of the policy. . . . It is difficult to delineate the exact contours of the hybrid-rights theory. . . . As we discuss below, however, we believe that simply raising such a claim is not a talisman that automatically leads to the application of the compelling-interest test. We must examine the claimed infringements on the party’s claimed rights to determine whether either the claimed rights or the claimed infringements are genuine. We will begin with Plaintiffs’ parental rights claim. We have no quarrel with Plaintiffs’ assertion that Annie’s parents have a constitutional right to direct her education, up to a point. For example, they have a right to send her to a private school, whether that school is religious or secular. Numerous cases, however, have made it clear that this constitutional right is limited in scope. Federal courts addressing the issue have held that parents have no right to exempt their children from certain reading programs the parents found objectionable, or from a school’s community service requirement, or from an assembly program that included sexually explicit topics. . . . The case law in this area establishes that parents simply do not have a constitutional right to control each and every aspect of their children’s education and oust the state’s authority over that subject. . . . The claimed constitutional right Plaintiffs wish to establish in this case is the right of parents to send their children to public school on a
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part-time basis, and to pick and choose which courses their children will take from the public school. Plaintiffs would have this right override the local school board’s explicit decision to disallow such part-time attendance (except where the school would receive state funding for the parttime attendee). However, decisions as to how to allocate scarce resources, as well as what curriculum to offer or require, are uniquely committed to the discretion of local school authorities, as well as the cases above demonstrate. . . . The above discussion establishes that Plaintiffs have shown no colorable claim of infringement on the constitutional right to direct a child’s education. Accordingly, we hold that this is not a hybrid-rights case. . . . Based on the foregoing, we hold that Defendants were not required to show a compelling state interest in this case, despite Plaintiffs’ attempt to invoke the hybridrights doctrine. Relying on a series of Supreme Court cases decided in the unemployment context . . . , Plaintiffs make the following argument: (1) they have been denied a benefit that has been conferred on other students who are allowed to attend public school part-time; (2) they have been denied that benefit because their religious beliefs require that Annie be educated at home part-time; and (3) therefore, an exception must be made to accommodate their beliefs and allow Annie to attend part-time. . . . Plaintiffs’ religious reasons for wanting Annie to attend public school only part-time must be given credence. . . . Put simply, Plaintiffs argue (as they explicitly acknowledged at oral argument) that if anyone is allowed to attend the public school part-time, Annie must be allowed to do so also, because her motivation for wanting to do so is religious. According to Plaintiffs’ argument, if a governmental entity offers a benefit such as part-time attendance under limited qualifying conditions, and a claimant’s religious beliefs or practices prevent him or her from meeting those conditions, the benefit must be awarded to the claimant despite the failure to meet the conditions. The difficulty we have with this argument is that it would elevate Plaintiffs to a higher status than other homeschoolers who educate their children at home (or, for that matter, in a private school) for secular rather than religious
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reasons. That is, the part-time attendance policy, which at present precludes Annie and all other homeschooled or private-schooled children from taking a few selected classes from the public school, would be rendered inapplicable to religious homeschooling families but not to secular homeschooling or private-schooling families. The Free Exercise Clause does not extend so far. It is designed to prevent the government from impermissibly burdening an individual’s free exercise of religion, not to allow an individual to exact special treatment from the government. . . . Nothing in the Free Exercise Clause requires that such special treatment be provided. . . . Plaintiffs have attempted to portray this case as one involving religious discrimination against Christian homeschoolers. The record provided to the district court and this court, however, indicates that it involves only financial distinctions between certain part-time students and all homeschoolers, secular or religious, as well as private school students. Since this case involved only a neutral rule of general applicability, it was sufficient for Defendants to prove a reasonable relationship between the part-time attendance policy and a legitimate purpose of the school board. Plaintiffs have not argued that Defendants failed to meet this low threshold, and it is clear that Defendants have satisfied it. Therefore, the district court’s decision dismissing all of Plaintiffs’ claims is affirmed.
State’s Use of Achievement Tests to Monitor Home Instruction Is Constitutionally Valid
Murphy v. State of Arkansas United States Court of Appeals, Eighth Circuit, 1988 852 F.2d 1039.
HEANEY, Circuit Judge. Appellants challenge the decision of the district court upholding the constitutionality of the Arkansas Home School Act, Ark. Code Ann. §§ 6-15-501–6-15-507. We affirm the decision of the district court.
Doty and Phyllis Murphy are evangelical Christians who believe that “Christian Scriptures require parents to take personal responsibility for every aspect of their children’s training and education.” They have six children, ages four through eighteen. The Murphys educate their children at home, providing an “education that is pervasively religious in nature and which does not conflict with the religious beliefs they hold, based upon their understanding of the scriptures.” Under Arkansas law, a parent must educate her children through the age of sixteen. This requirement may be satisfied by sending the child to public, private, or parochial school or by educating the child at home. The Arkansas Home School Act, Ark. Code Ann. §§ 6-15-501–6-15507, requires parents intending to school their children at home to notify in writing the superintendent of their local school district prior to the commencement of each school year. The notice must provide information concerning the name, age, and grade of each student, the core curriculum to be offered, the schedule of instruction and the qualifications of the person teaching. The parent must also agree to submit the children to standardized achievement tests each year and, when the children reach the age of fourteen, to a minimum performance test. All of these tests are administered, interpreted, and acted upon by the Arkansas Department of Education. Finally, the parent must provide any information to the superintendent which might indicate the need for special educational services for the children. The achievement test administered to a student schooled at home is chosen by the parent from a list of nationally recognized tests provided by the director of the State Department of Education or the director’s designee. The parent may be present when the standardized test is administered, but both parent and student are under the supervision of a test administrator. The results of the standardized tests are used for several purposes. Most significantly, if a homeschool student does not achieve a composite score within eight months of grade level in designated subjects, the student must be placed in a public, private, or parochial school. No such annual testing is required for students in public, private, or parochial schools. If children not
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Homeschooling
schooled at home are, for some reason, tested, no remedial placement is required for those who do not achieve certain scores. The Murphys allege that the Arkansas statutory scheme deprives them of the right to free exercise of religion, the right of due process of law, the right of equal protection of the laws, and the right of privacy and parental liberty in violation of the United States Constitution. The Murphys brought an action for a declaratory judgment in federal district court. That court awarded judgment to the state. The Murphys assert that Ark. Code Ann. § 6-15-504, requiring that a standardized test be given to their children under the supervision of a test administrator, deprives them of the right to free exercise of religion as guaranteed by the first amendment. They argue that their religious beliefs require they must be completely responsible for every aspect of their children’s education. In contrast, the Arkansas Home School Act places responsibility for testing and interpreting test results with the State of Arkansas, rather than with the parents. To determine whether governmental conduct infringes upon an individual’s first amendment free exercise rights, a court must first inquire whether the challenged governmental action interferes with the claimant’s “sincerely held religious beliefs.” Second, if such a belief is interfered with, the court must determine whether the governmental action is the least restrictive means of achieving some compelling governmental interest. . . . In the case before us, the parties have stipulated that the testing requirements of the Arkansas law interfere with the Murphys’ sincerely held religious beliefs. Thus, we will go no further in examining the subtleties of the Murphys’ beliefs. Consequently, the resolution of the free exercise claim involves answering two related questions: First, does the state have a compelling interest in the education of all children? Second, if so, is the Arkansas statutory scheme the least restrictive means of achieving that objective? We believe that the answer to both of these questions is yes. The government has a compelling interest in educating all of its citizens. Education of the citizenry is and always has been a preeminent goal of American society. Reaching back through the
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collective memory of the Republic, the fundamental importance of education in the design of our system of government rapidly becomes clear. Article III of the Northwest Ordinance states in part: “Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” . . . The fundamental importance of education in terms of access and achievement in American society was further underscored by the Court in Brown v. Board of Education. . . . It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. . . . Thus, as the district court correctly noted, it is “settled beyond dispute, as a legal matter, that the state has a compelling interest in ensuring that all its citizens are being adequately educated.” Given the existence of a compelling governmental interest, we must next inquire whether Arkansas’ home testing system is the least restrictive means to achieve that purpose. In doing so, we recognize that the state must have a mechanism by which it can confidently and objectively be assured that its citizens are being adequately educated. Upon examination, it would appear that Arkansas has created the least restrictive system possible to assure its goal. By providing the option of homeschooling, Arkansas allows parents vast responsibility and accountability in terms of their children’s education—control far in excess of limitations on religious rights that have been previously upheld. . . . Arkansas requires neither that the parent instructing the homeschooled child be a certified teacher nor that the parent follows a mandated curriculum. The state’s only safeguard to ensure adequate training of the homeschooled student is the standardized achievement test. Even regarding this test, the state allows wide latitude to the parents. The parent may choose a test administered from a list of nationally recognized standard achievement tests and may be present while the test is administered.
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Finally, the Murphys make no showing, as made by the Amish in Yoder, that the state can be assured its interest will be attained if appellants’ religious beliefs are accommodated. We reject the Murphys’ argument that parental “testing” of children provides a sufficient safeguard to assure the state’s interest in education is protected. Likewise, parental affidavits concerning the children’s progress would also be insufficient. In the end, we believe that the state has no means less restrictive than its administration of achievement tests to ensure that its citizens are being properly educated. The Murphys argue that the Arkansas Home School Act violates the Equal Protection Clause of the Fourteenth Amendment. Specifically, they claim that those who school their children at home for religious reasons are a suspect class or that parental control over a child’s education involves a fundamental right. . . . Thus, the Murphys contend that the state appears irrationally to allow parents to educate their children in religious private schools without any regulatory supervision but subjects children schooled at home to the various requirements of the Home School Act. While home school families impelled by deep-seated religious convictions might be the type of “discrete and insular minorit[y]” . . . , the broad secular category of individuals who prefer to school their children at home is not. Clearly, the statute is aimed at this second category of individuals. It could be argued that the statute, while superficially neutral, has a discriminatory impact on the category of deeply religious individuals impelled by their convictions to school their children at home. Yet, even if such discriminatory impact were shown—which it has not been—this would not be sufficient to invoke strict scrutiny. The Murphys would still bear the burden of proving discriminatory purpose or intent. . . . Because no such showing of either discriminatory impact or discriminatory intent has been made, strict scrutiny analysis is inappropriate here. . . . Given that strict scrutiny analysis does not apply, we move to the question of whether Arkansas has a rational reason to subject homeschooling to regulatory requirements, while at the same time freeing private schools from
virtually any regulation. . . . In this area of the law, the Supreme Court has declared its willingness to uphold any classification based “upon [any] state of facts that reasonably can be conceived to constitute a distinction, or difference in state policy. . . .” We believe that such a state of facts exists here. First, it could be argued that the notion of an actual independent school, away from home, implies more formality and structure than a home school. This could lead the state to believe that more serious instruction would be occurring there than in the relaxed atmosphere of a child and parents in their own home. Second, the notion that more than one family is likely to be sending their children to the private school may provide an additional objective indication of the private school’s quality that is not present in the context of individual home schools. Finally, unlike a home school, parents sending a child to a private school have to pay money for education, and, hence, would be more likely to demand their money’s worth of instructional quality from the private school. All these possibilities together could provide Arkansas with a passable reason for the challenged distinction under the minimum rationality standards of the equal protection clause. The Murphys argue that the right of privacy should be extended to protect parental decisions concerning the direction of a child’s education from state interference. . . . The Court has repeatedly stressed that while parents have a constitutional right to send their children to private schools and a constitutional right to select private schools that offer specialized instruction, they have no constitutional right to provide their children with private school education unfettered by reasonable government regulation. . . . Indeed, the Court in Pierce expressly acknowledged “the power of the State reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils.” . . .
The Supreme Court has spoken clearly on this issue, and we are bound by its decision. Moreover, we agree with the Court’s reasoning and its conclusion. We thus decline to extend the right of privacy to this situation. For the foregoing reasons, the decision of the district court is affirmed.
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Homeschooling
Denial of Homeschooled Students’ Participation in Public School Extracurricular Activities Does Not Violate the Equal Protection Clause
Jones v. West Virginia State Board of Education Supreme Court of Appeals of West Virginia, 2005. 218 W.Va.52, 622 S.E.2d 289
DAVIS, Justice: This is an appeal from an order of the Circuit Court of Kanawha County rendered in favor of the parents of a homeschooled child with respect to their claim that their child should be permitted to participate in interscholastic athletics notwithstanding his homeschooled status. . . .We agree with the School Officials and reverse the order of the circuit court. Daniel and Christy Jones (hereinafter “the Joneses”), plaintiffs below and appellees herein, are residents of Marion County, West Virginia. The Joneses have elected to homeschool their children, including their son Aaron. In 2002, when Aaron was approximately eleven years old, he indicated to his parents his desire to participate on the Mannington Middle School wrestling team. Had Aaron been a student in the public school system, he would have been a sixth-grade student at Mannington Middle School. The Joneses investigated the possibility of Aaron joining the Mannington Middle School wrestling team and were advised that they needed approval from the West Virginia Secondary School Activities Commission (hereinafter “the WVSSAC”). Upon contacting the WVSSAC, the Joneses were advised that, pursuant to W. Va.C.S.R. § 127-2-3.1, participation in interscholastic athletic activities was limited to students who were enrolled full time in a WVSSAC participating school. Consequently, since Aaron was not enrolled as a full-time student at Mannington Middle School, he would not be permitted to participate on the wrestling team. The Joneses received similar responses
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from Dave Stewart, State Superintendent of Schools, and from the Marion County Board of Education. . . . In this appeal we are asked to review a final order rendered by a circuit court. . . . The circuit court expressed three grounds for finding that the School Officials had improperly denied the Joneses’ request that their homeschooled child be allowed to participate in interscholastic athletics: (1) that the School officials had breached a statutory duty; (2) that they had violated the homeschooled student’s right to equal protection. . . . The circuit court concluded that the School Officials breached a statutory duty by failing to make interscholastic athletics available to homeschooled children. To determine if the circuit court was correct in this conclusion, we first look to the language of the statute purportedly violated by the School Officials, W. Va.Code § 18-8-1(c)(3) (2003) (Repl. Vol. 2003), which states: . . . The county superintendent or a designee shall offer such assistance, including textbooks, other teaching materials and available resources, as may assist the person or persons providing home instruction subject to their availability. Any child receiving home instruction may upon approval of the county board exercise the option to attend any class offered by the county board as the person or persons providing home instruction may consider appropriate subject to normal registration and attendance requirements. . . .
With respect to the portion of this provision that requires a county superintendent to “offer such assistance, including textbooks, other teaching materials and available resources, as may assist the person or persons providing home instruction subject to their availability,” the circuit court first reasoned that [t]here is no dispute that participation in interscholastic athletics offers an individual student opportunities to learn important life lessons and expands the educational experience beyond the four walls of the traditional classroom. Therefore, it is arguable that the coaching and facilities that are available to a student athlete could be considered an available educational resource within the meaning of the aforementioned statute.
The court then concluded that “[t]he defendants have breached their statutory duty under the above-quoted portion of West Virginia Code
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section 18-8-1(c)(3) by failing to make interscholastic sports available to Aaron.” This conclusion by the circuit court simply is not supported by the language contained in this statute. Initially, we observe that “[t]he primary object in construing a statute is to ascertain and give effect to the intent of the Legislature.” However, “[w]hen a statute is clear and unambiguous and the legislative intent is plain, the statute should not be interpreted by the courts, and in such case it is the duty of the courts not to construe but to apply the statute.” We find no ambiguity in the provision relied upon by the circuit court. . . . In plain language, this provision refers to providing resources “as may assist the person or persons providing home instruction.” W. Va.Code § 18-8-1(c)(3). Clearly, this statute pertains to providing educational resources to the person or persons providing instruction, who, in this case, was Mrs. Jones. Because the statute does not address providing resources, such as interscholastic sports, to a homeschooled student, we are not at liberty to judicially add such a provision. . . . “ ‘[T]he judiciary may not sit as a super legislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines.’ ” (quoting Lewis v. Canaan Valley Resorts, Inc., 185 W.Va. 684, 692, 408 S.E.2d 634, 642 (1991)). Therefore, we find the circuit court erred in concluding that the School Officials breached their duty under W. Va.Code § 18-8-1(c)(3). The circuit court concluded that, by excluding homeschooled children from participation in interscholastic athletics, the School Officials have violated the equal protection rights of homeschooled children. “Equal protection of the law is implicated when a classification treats similarly situated persons in a disadvantageous manner. The claimed discrimination must be a product of state action as distinguished from a purely private activity.” Here, there is no question that the equal protection claim involves state action, so we will proceed with our analysis. The complained of classification established by the School Officials treats homeschooled children differently from children who are enrolled in the public schools with respect to their eligibility to participate in interscholastic athletics. [A] “classification not affecting a fundamental right
or some suspect or quasi-suspect criterion . . . will be sustained so long as it ‘is rationally related to a legitimate state interest.’” . . . In a case similar to the one at bar, which addressed the issue of whether the state could refuse to provide school bus transportation to students attending parochial schools, this Court explained that [p]ublic and parochial school children may rationally be treated differently because they are not similarly situated. . . . Janasiewicz v. Board of Educ. of Kanawha County.
The Janasiewicz Court went on to hold: The Equal Protection Clause of the Fourteenth Amendment is not violated by treating public and nonpublic school children differently in allocations of state aid and educationally related resources. . . . Having already determined that treating public and nonpublic school children differently in allocations of state aid and educationally related resources does not offend equal protection, we have no difficulty concluding that treating public and nonpublic school children differently with respect to participation in interscholastic sports does not violate equal protection. . . .
Moreover, the School Officials have asserted numerous grounds supporting a rational basis for excluding homeschooled children from participation in interscholastic athletics. Two of these grounds we find particularly persuasive: (1) promoting academics over athletics, and (2) protecting the economic interests of the county school systems. With respect to promoting academics over athletics, the School Officials note that the WVSSAC has, in keeping with the policies and rules of the West Virginia Board of Education, imposed grade requirements which must be met for a student to participate in interscholastic sports. In particular, one rule of the WVSSAC requires that “[i]n accordance with West Virginia Board of Education § 126-26-1 et seq., ‘Participation in Extracurricular Activities’ (Policy 2436.10, C-Rule), students must maintain a 2.0 average to participate in interscholastic athletics.” W. Va.C.S.R. § 127-2-6.9 (footnote added). Moreover, “[a] student is required to do passing work in the equivalent of at least 20 periods (four subjects with full credit toward graduation) per week. Failure to earn passing marks in four full credit subjects during a semester shall
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Other Reasons for Nonattendance
render a student ineligible for the following semester.” W.Va. C.S.R. § 127-2-6.1. Children who are homeschooled may be taught a completely different curriculum than children in the public school system. More importantly, though, is the fact that regardless of the curriculum, homeschooled children are graded differently from those in the public school system. Instead of receiving semester grades, homeschooled children are evaluated only once yearly through either a standardized test, examination of the student’s work portfolio, or by completing “an alternative academic assessment of proficiency that is mutually agreed upon by the parent or legal guardian and the county superintendent.” The School Officials maintain that attempting to convert the progress assessments of homeschooled children into a numerical formula in order to equate it to the 2.0 average that is required for participation in interscholastic athletics would create an undue burden on the county school systems. Furthermore, the different grading standards and methods used for homeschooled children would significantly impede the School Official’s ability to maintain the academic standards that have been established for participation in interscholastic athletics. For example, the School Officials point out that allowing homeschooled children to participate in interscholastic athletics would create a risk of mischief on the part of some parents of athletically skilled, yet academically struggling, children. Specifically, a parent could withdraw an academically struggling child from the public school system in order to maintain his or her athletic eligibility, thereby thwarting the efforts of the public school system to promote academics over athletics. Finally, the School Officials maintain that the public schools would suffer financially from the participation of homeschooled children in interscholastic sports. They explain that county school boards receive funding for their athletic programs based upon a formula that takes into consideration their average daily attendance and enrollment numbers. Homeschooled children do not contribute to the average daily attendance or enrollment numbers of the public schools, thus no funds are expended to the county boards in consideration of those children. To then require counties to spend these limited funds to support
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the athletic participation of homeschooled students would create a financial burden. Based upon the foregoing discussion, we now hold that prohibiting homeschooled children from participating in interscholastic athletics does not violate equal protection under art. III, § 10 of the West Virginia Constitution. . . . For the reasons stated in the body of this opinion, we reverse the September 23, 2003, order of the Circuit Court of Kanawha County, including the writs of mandamus and prohibition therein granted. Reversed.
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Other Reasons for Nonattendance
Litigation regarding exceptions from school attendance is usually of two types. The first involves the aforementioned cases in which parents seek exemption for their children from school attendance in favor of private school or home instruction or, perhaps, no formal education at all. The second common source of litigation emanates from simple truancy wherein children merely fail to attend school without offering or claiming alternative forms of education.
EXCESSIVE ABSENCES Excused absences from school must be authorized by statute or regulation and usually allow for a reasonable number of days of nonattendance for illness, family emergency, educational travel, medical appointments, or approved school activities. To violate such rules may result in an action against the parents for their failure to see that the child is attending school. A situation illustrative of such a case emanated from an action in Maryland where two women, each with two children, allowed the children to miss a total of 70 school days. The state sought conviction of the women for violation of the compulsory attendance laws. The women defended, claiming their constitutional rights of due process were violated because the law imposed “strict liability” by prosecuting parents for actions of their children. The court held that the law, on the contrary, did not prosecute parents for the failure of their children, but prosecuted them for their own failure to see that their children attended school. Performance of such an affirmative duty as imposed by the law is offended by “passive
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acquiescence (by the parent) in the child’s nonattendance of school.”135
to justify their noncompliance with the law, the parents’ conviction was upheld.138
TRAVEL
MARRIAGE
Parental insistence on taking their children from school for no authorized purpose may be grounds for conviction under attendance laws. In one such case, school board policy limited excused absences for educational trips to one trip per year, not to exceed five days. The parents of four children had already expended leave time on a trip to Washington, D.C., and later requested additional time to travel to Europe. The school refused permission; the parents took the children and departed for Europe anyway. Upon the family’s return, the school filed a truancy action against the parents that led to conviction. The appellate court upheld the lower court, concluding that the discretionary authority over such matters rested with the local school board.136 Students themselves cannot be punished for truancy if the state law only imposes penalties against parents. In a Washington case, the court reversed a truancy fine against students because the state statute provided that “parents, guardians, and the persons in this state having custody . . . shall cause such child to attend . . . school.” Under such a law, which is typical of most states, failure of the students to attend school may result in orders, fines, and contempt citations against the parents of truants, but not against the truants themselves.137
Exemption from compulsory attendance is a dubious benefit of marriage, yet courts have agreed that when a minor of less than 16 years (otherwise required to attend school) is married, he or she is usually exempt from further compulsory attendance. One of the precedents in this area was rendered by the Louisiana Supreme Court. A 15-yearold girl and her husband sought to set aside a judgment of a lower court committing her to the State Industrial School for Girls as a result of her truancy and alleged juvenile delinquency. The girl did not deny truancy but claimed that her legal marriage exempted her from attendance. Although the marriage of a female under 16 years of age was prohibited by law, the Court ruled that once a girl is married, she enjoys the status of wife and has a right to live as such, emancipated from both school and parents. The Court stated:
ILLNESS Parents who claim that their child is ill and cannot attend school must show valid medical proof of illness. An Illinois case illustrates how a claim of illness may well result in a charge of truancy. Under Illinois law, a child is considered to be truant if absent without “valid cause,” which is defined as illness, death in the immediate family, family emergency, or other circumstances that cause concern to the parent for the child’s health or safety. In this case, the student was absent from school for 339 days during a two-year period. Testimony from the student’s doctor indicated that he had conducted tests and found that the child had certain allergies, but that these were not of such magnitude to warrant absences from school. Having no other proof of illness
The marriage relationship, regardless of the age of the persons involved, creates conditions and imposes obligations upon the parties that are obviously inconsistent with compulsory school attendance or with either the husband or wife remaining under the legal control of parents or other persons.139
In another Louisiana case, a truant, neglected 14-year-old girl, was married only a few days after the truant officer had taken her into custody.140 The lower court committed the girl to a state girls’ school for an indefinite period of time. The judge, exercising parens patriae, was of the opinion that the girl needed the care and protection of the state. The Louisiana Supreme Court, although sympathetically viewing the judge’s concern for the girl’s welfare, held that the lower juvenile court could not commit her to the girls’ school or prevent her from assuming the responsibilities of a married woman. The court stated that the power of such public policy determinations rested with the legislature and not the court. A New York court followed the rationale of these two cases. In one of the cases, a girl resisted attempts to force her to attend school because she was married and wanted to be a housewife and homemaker.141 The court, while recognizing the
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Vaccination
state’s sovereignty concerning compulsory attendance, decided for the girl, observing that times and mores had changed since the compulsory attendance law was passed. The court expressed doubt that the legislature had anticipated the question of such youthful marriage in passing the law. In the eyes of the law, then, youthful marriage is a valid exemption from compulsory attendance laws. Effectively, marriage removes both state and parental control over minors. Consequently, married minors have the choice and the right to decide on their own further education.
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Vaccination
To protect the health and welfare of citizens, states have required schoolchildren to be vaccinated. Courts have generally held that if a parent violates a statute requiring vaccination, the parent is subject to arrest or fine, even if he or she claims religious, conscientious, or scientific objections. The U.S. Supreme Court, in Jacobson v. Commonwealth of Massachusetts, in 1905, held that a board of health requirement that all persons in Cambridge, Massachusetts, be vaccinated did not violate personal liberties found under the Fourteenth Amendment. In this case, the Court noted that “the liberty secured by the Constitution of the United States to every person within its jurisdiction does not impart an absolute right on each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good.”142 The U.S. Supreme Court further stated: The authority of the state to enact (a compulsory vaccination statute) . . . is commonly called the police power, a power which the state did surrender when becoming a member of the Union under the Constitution. Although this court has refrained from any attempt to define the limits of that power, yet it has distinctly recognized the authority of a state to enact quarantine laws and ‘health laws of every description;’ indeed, all laws that relate to matters completely within its territory and which do not by their necessary operation affect the people of other states. According to settled principles, the police power of a state must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.143
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POWER OF STATE TO REQUIRE VACCINATIONS As a general rule, state legislatures may require the vaccination of children as a condition precedent to their right to attend school. Such statutes are a valid exercise of the police power of the state. Most states provide for exemption for religious beliefs; however, such an exception is not required by the U.S. Constitution. 67B American Jurisprudence (Am.Jur.) 2d, “Schools” § 345.
Although the Supreme Court in Jacobson directly challenged the vaccination regulation rather than compulsory attendance, the Supreme Court,144 nevertheless, cited several state court decisions approving state statutes making the vaccination of children a condition of the right to attend public schools.145 In Viemeister v. White,146 a turn-of-the-century New York decision, the appellant argued that vaccination not only did not prevent smallpox but tended instead to bring on other harmful diseases. The Court, although not ruling that vaccination was a smallpox preventive, nevertheless maintained that laypersons and physicians alike commonly believed that it did prevent smallpox. The Court concluded that, even if it could not be conclusively proved that the vaccination was a preventive, in our republican form of government, the legislature has the right to pass laws based on common belief and the will of the people to promote health and welfare.
VACCINATION AND RELIGION “The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or . . . to ill health or death.” —U.S. Supreme Court, Prince v. Massachusetts, 1944
Is a parent guilty of violating the compulsory attendance law, then, if he or she sends his or her child to school without vaccinations and the child is sent home by school authorities? Answering this question in the affirmative, a New York court said that attendance at a public school imposes certain
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conditions on a child. These requirements must be met in order for the child to attend. However, the court went on to say that under the public health law, vaccination was required only for children attending public schools, not private schools. The parent could offer equivalent private education to the child and avoid vaccination. Here, however, the parent had not provided equivalent education and was, therefore, subject to penalty under the compulsory attendance law.147 In an earlier New York case, little tolerance was evidenced for parents who used vaccination as an excuse to prevent their children’s attendance in public schools: It is obvious that a parent should not be allowed to escape his duty to send his children to school as provided by law on any excuse which is not an ample justification for such course. Our public school system has been developed with great pains and solicitude, and its maintenance and support have been recognized as so important for the welfare of the state that they have been provided for and safeguarded in the Constitution itself. As a part of this system a statute has been passed requiring attendance at school of children within certain limits. If indifferent or selfish parents, for ulterior purposes, such as the desire to place young children at labor, instead of school, or from capricious or recalcitrant motives, may be allowed to manufacture easy excuses for not sending their children to school, a ready method will have been developed for evading the statute compelling such attendance, and, if the statute requires parents to see to it that their children attend and take advantage of this school system may be lightly and easily evaded, the purposes of the state in providing and insisting on education will be frustrated and impaired. Failure to comply with the statute ought not to be excused, except for some good reason.148
The earlier cases concerning school vaccinations were not generally related to First Amendment religious protections. As observed earlier, the Supreme Court did not clarify the application of the “no state” provision of the Fourteenth Amendment until 1940 in Cantwell v. Connecticut.149 The precedent of religious exemption from compulsory attendance, established in Yoder,150 holds implications for cases involving religious freedom from vaccination. At this time, though, the precedents indicate that statutes requiring vaccination do not violate the free exercise of religion.
Parents in State v. Drew refused to have their child vaccinated, giving reasons as “partly religious and partly because they did not want that poison injected into their child.” The New Hampshire Supreme Court upheld the parents’ conviction for violating the compulsory attendance law and said: The defendant’s individual ideas, whether “conscientious,” “religious,” or “scientific,” do not appear to be more than opinions. . . . The defendant’s views cannot affect the validity of the statute or entitle him to be excepted from its provisions. . . . It is for the Legislature, not for him or for us, to determine the question of policy involved in public health regulations.151
Where an epidemic is imminent, there is no question concerning the state’s power to protect the citizenry by requiring vaccination. However, when there is no evidence of the imminence of an epidemic, how do the courts view the issue? Can the state’s requirement of vaccination be a reasonable and permissible restraint on constitutional rights in the absence of epidemic? In Board of Education of Mountain Lakes v. Maas,152 the defendant argued that compulsory vaccination and immunization were not needed because there had been no smallpox or diphtheria for almost a decade. The New Jersey court disagreed and ruled that the absence of an emergency does not warrant a denial of the exercise of preventive means. The court said, “A local board of education need not await an epidemic, or even a single sickness or death, before it decides to protect the public. To hold otherwise would be to destroy prevention as a means of combating the spread of disease.” Likewise, in Stull v. Reber,153 the fact that there had been no smallpox in the borough for 40 years did not prevent enforcement of the compulsory vaccination regulation. Health authorities were not required to wait for an epidemic before acting.154 Neither does the fact that an epidemic has already started prevent enforcement of compulsory vaccination.155 If the state board of health enacts a compulsory vaccination regulation made pursuant to statute, the general statutory requirements requiring all pupils to comply with law are sufficient grounds for the board of education to enforce the statute.156
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Vaccination
The aforementioned cases contested duly promulgated board rules that were enacted pursuant to state statutes. However, where no statute exists to empower school or health boards to pass compulsory vaccination regulations, the issues shift quite drastically. A board cannot enact regulations unless they are based on existing statutes. Where the board acts regardless of the existence of a statute, the act is ultra vires (in excess of legal authority). Further, a board rule restricting school attendance cannot prevail over a legislative act granting free unlimited admittance to public schools. Accordingly, two Illinois courts have decided that in the absence of a compulsory vaccination statute, an unvaccinated child cannot be denied a public education.157 In both of these cases, however, it appeared that the school boards made little effort to draw enabling regulation from health or education statutes. In summary, one can reasonably draw several conclusions regarding compulsory attendance and vaccination: (1) the legislature has power to enact a statute providing for vaccination and including a penalty for noncompliance; (2) neither the parent nor the child has a constitutional right to schooling without complying with the statutory requirement of vaccination; (3) a parent cannot escape conviction for failing to have his or her child vaccinated by demanding that the child be admitted to school unvaccinated; and (4) religious objection has not generally prevented enforcement of compulsory vaccination and attendance requirements unless permitted by statute and the parents can show that their opposition to vaccination is based on their beliefs in actual tenets of religion.158
Neither Unproven Autism Relationship Claims nor Religious Beliefs Compel a Public School to Permit Attendance of Unvaccinated Student
Workman v. Mingo County Schools United States District Court, S.D., West Virginia, 2009. 667 F. Supp. 2d 679.
JOSEPH R. GOODWIN, Chief Judge. Pending before the court are the plaintiff Jennifer Workman’s Motion for Summary Judgment [Docket 62], defendants Mingo County
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Board of Education and Dr. Steven L. Paine’s Motion for Summary Judgment [Docket 98], and defendant Dwight Dials’ Motion for Summary Judgment [Docket 102]. For the reasons explained below, the plaintiff’s Motion is DENIED, and the defendants’ Motions are GRANTED. All other pending motions [Dockets 2, 73, 97, 118] are DENIED as moot. The case concerns the legality of West Virginia’s mandatory immunization program for schoolchildren. This topic is a sensitive one. An increasing number of parents across the country question the safety of vaccinations— particularly the purported relationship between vaccinations and autism. See, e.g., Alice Park, How Safe Are Vaccines? TIME, May 21, 2008, available at http://www.time.com/time/health/ article/0,8599,1808438,00.html. A parent’s concern for her children’s health and well-being is understandable. However, little evidence supports the claim that standard vaccinations are unsafe, see id., and the plaintiff does not contest the safety and efficacy of vaccines in this case. Others oppose vaccinations on religious or philosophical grounds. Currently, West Virginia is one of only two states that do not permit a religious exemption from mandatory vaccinations. Jennifer Workman brings this suit individually and as the parent and guardian of her minor child, M.W. Ms. Workman is the mother of two school-aged children: M.W., age six, and S.W., age thirteen. S.W. suffers from serious health problems, which manifested around the time she began receiving vaccinations. Specifically, S.W. has been diagnosed with pervasive developmental disorder, not otherwise specified, severe sleep disorders and other behavioral problems. These health issues have caused behavioral problems that require that S.W. be homeschooled. In light of S.W.’s health issues, Ms. Workman has chosen not to vaccinate M.W. For the purpose of enrolling M.W. in the Mingo County school system without the required immunizations, pursuant to West Virginia Code section 16-3-4, Ms. Workman obtained a Permanent Medical Exemption (“the certificate”) for M.W. from Dr. John MacCallum, M.D., a child psychiatrist. Dr. MacCallum recommended against vaccinating M.W. due to S.W.’s condition. Mingo County Health Officer, Dr. Manolo
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Tampoya, M.D., approved the certificate and indicated that it satisfied the requirements for M.W. to attend school in Mingo County, West Virginia. M.W. subsequently attended the prekindergarten program at Lenore K-8 School in Lenore, West Virginia, for approximately one month in the fall of 2007. Section 16-3-4 provides that, although immunizations against diphtheria, polio, rubeola, rubella, tetanus, and whooping cough are compulsory for children entering school for the first time in this state, a non-immunized child may attend school if he or she “produces a certificate from a reputable physician showing that an immunization for [those diseases] has been done or is impossible or improper or other sufficient reason why such immunizations have not been done.” W. Va.Code § 16-3-4. On September 21, 2007, the Superintendent of Mingo County Schools, defendant Dwight Dials, sent a letter to Dr. Cathy Slemp, the Acting Head of the West Virginia Department of Health and Human Resources, noting that a school nurse had challenged the plaintiff’s certificate. Dr. Slemp responded to Mr. Dials by letter dated October 3, 2007, in which she recommended denying the certificate and, therefore, the plaintiff’s application for an exemption from the compulsory immunizations. Dr. Slemp noted that Dr. MacCallum apparently issued the certificate based on the fact that S.W. had been diagnosed with autism and because M.W. herself has speech and language delays. Dr. Slemp explained: In accordance with current recommendations on immunization practice issued by the American Academy of Pediatrics, American Academy of Family Physicians, and the Advisory Committee for Immunization Practices, autism in a family member is not a contraindication to administration of any of the immunizations required under WV Code Chapter 16-3-4 (school entry immunizations). In addition, speech and language delays, in and of themselves, are not defined contraindications to any of these vaccines. . . .Dr. Slemp concluded: “[E]xamining the facts presented in light of current medical guidance on immunization practices, I recommend that this request for medical exemption be denied, assuming immunization requirements apply to the situation at hand. I make this recommendation considering both the safety of this child and other children in the school setting.” She left
“to [Mr. Dials] and the Department of Education [to determine] the applicability of this information to the specific preschool setting involved, based on applicable Department of Education and other laws and regulations.” . . .
Ms. Workman filed this action on April 1, 2009, against Mingo County Schools, Dwight Dials, and the State of West Virginia Department of Health and Human Resources. She raises both constitutional and statutory claims, and seeks declaratory judgment, injunctive relief, and money damages. She alleges that the defendants’ denial of M.W.’s application for a medical exemption violates her First, Fifth and Fourteenth Amendment rights—that is, her free exercise rights and rights to due process and equal protection of the laws. Specifically, she states that her Christian Bapticostal religious beliefs require that she honor God by protecting her child from harm and illness, and that immunizing M.W. in this instance would violate those sincerely held beliefs. She further argues that the defendants’ denial of M.W.’s application for medical exemption was “arbitrary, capricious, and unreasonable,” and discriminates against her and her family for no valid reason, and thus denies them procedural due process, substantive due process parenting rights, and equal protection of law. With regards to her statutory claims, Ms. Workman argues that the defendants violated West Virginia Code section 16-3-4 by refusing to accept Dr. MacCallum’s certificate. . . . The plaintiff alleges that the defendants’ actions violate her freedom of religion, due process, and equal protection rights. As explained below, these claims lack merit. Thus, summary judgment is GRANTED for the defendants on the plaintiff’s constitutional claims. The plaintiff argues that West Virginia’s mandatory immunization program violates her freedom of religion. West Virginia, unlike most states, does not have a religious exemption to its immunization requirements for schoolchildren. Ms. Workman contends that her sincere religious beliefs prohibit her from having M.W. vaccinated. She asserts that “[t]he U.S. Constitution guarantees the free exercise of religion. This allows parents as of right to opt their children out of vaccines, should they go against their genuine, sincerely held religious beliefs.”
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Vaccination
Ms. Workman’s freedom of religion claim fails. Her beliefs do not exempt her from complying with West Virginia’s mandatory immunization program. It has long been recognized that local authorities may constitutionally mandate vaccinations. Jacobson v. Massachusetts (affirming guilty judgment in prosecution under state compulsory vaccination law, noting that “[r]eal liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own . . . regardless of the injury that may be done to others”). Furthermore, a parent “cannot claim freedom from compulsory vaccination for [his] child more than for himself on religious grounds.” Prince v. Massachusetts. . . . Although most states have chosen to provide a religious exemption from compulsory immunization, a state need not do so. . . . West Virginia’s mandatory immunization program does not violate Ms. Workman’s free exercise rights. Therefore, summary judgment is GRANTED to the defendants on Ms. Workman’s First Amendment claims. Ms. Workman argues that her equal protection rights were violated because the “[d]efendants’ purported denial of the valid exemption was arbitrary, capricious, and unreasonable.” She also seems to argue that the defendants violated her equal protection rights by not allowing her to simultaneously enroll her children in school and follow her religious beliefs, while parents with different or no religious beliefs may conceivably do so. Furthermore, she asserts that the procedures used by the defendants violate her procedural due process rights, and that the denial of M.W.’s application for exemption violates her substantive due process rights. Ms. Workman’s equal protection claims and due process claims fail. There are two aspects of Ms. Workman’s equal protection claim: an as-applied challenge and a facial challenge to the mandatory immunization program. With regards to her as-applied challenge, the plaintiff argues that the school system discriminated against her and her family. But she presents no evidence of unequal treatment resulting from intentional or purposeful discrimination to support her claim; instead, all of the evidence is to the contrary. Defendant Dwight D. Dials has submitted an affidavit from Acting State Health Officer Catherine C. Slemp stating:
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I have never granted a medical exemption from the state immunization laws based on the reason being that the subject child or a relative has autism, or based on a posited connection between autism and vaccines, because neither reason is a recognized medical contraindication to these vaccines. I am not aware of any instance in which the [West Virginia Board of Public Health] or any of its prior State Health Officers have ever granted a medical exemption to the immunization requirements applicable to school students based on a child or relative having autism, or based on a posited connection between autism and vaccines.
Mr. Dials also submitted an affidavit from himself stating that “[a]t the time of th[e] request [for medical exemption], and to this day, I do not recall having ever met any member of the Workman family” and “I do not recall being informed or otherwise aware of any other issues concerning the Workman children.” Mr. Dials states that the medical exemption request constitutes the sole basis of his knowledge of the Workman family, and was of concern to him because he had never before dealt with a request for medical exemption during his tenure as Superintendent, and he “wanted to be sure that [he] handled it correctly and responsibly.” Conversely, Ms. Workman has presented no evidence that she has been treated differently from others with respect to this issue. Ms. Workman also challenges the mandatory immunization program on its face. The mere fact that a state or municipality mandates vaccinations, however, is not enough to support an equal protection or due process claim. . . . Ms. Workman also alleges that the administration of the mandatory immunization program violates her procedural due process rights. Assuming M.W.’s application for exemption is entitled to procedural due process protection, three factors determine whether the procedures followed by the state are constitutionally sufficient: the private interest at stake; the risk of erroneous deprivation through the procedures used and the probable value of additional procedures; and the government’s interest. [S]tates and localities may constitutionally exclude children from school because of their lack of immunizations, and that is precisely what the defendants did here. West Virginia provides administrative remedies for “[a]ny person
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adversely affected by the enforcement of [the immunization requirements] desiring a contested case hearing to determine any rights, duties, interests or privileges.” W. Va.C.S.R. § 64-95-10. A postdeprivation hearing can be sufficient when predeprivation procedures would risk endangering the public health. Ms. Workman argues that the administrative remedies, which she declined to utilize, offer her no relief because West Virginia “fails to allow for a religious exemption, making [the immunization program] unconstitutional.” But West Virginia is not obligated to provide such an exemption; its mandatory immunization program is consistent with the United States constitution. Ms. Workman’s procedural due process rights were not violated by the defendants’ administration of West Virginia’s mandatory immunization program. In sum, Ms. Workman’s First Amendment claim, along with her as-applied and facial equal protection claims and her substantive and procedural due process claims, fails. Summary judgment is thus GRANTED to the defendants on the plaintiff’s constitutional claims. . . . Therefore, the plaintiff’s Motion for Summary Judgment is DENIED and the defendants’ Motions for Summary Judgment are GRANTED. All other pending motions are DENIED as moot.
CASE NOTES 1. State Police Power. The U.S. Supreme Court, in following its own rationale in Jacobson, held in 1922, that a state by legislation or local ordinance may exclude from public schools, or other places of education, children or other persons who do not have a certificate of vaccination. Zucht v. King, 260 U.S. 174, 43 S. Ct. 24 (1922). 2. Religious Exemption from Vaccination. Although most states have chosen to provide a religious exemption from compulsory immunization, a state need not do so. Sherr v. Northport-East Northport Union Free School District, 672 F.Supp. 81, 88 (E.D.N.Y. 1987) (“[I]t has been settled law for many years that claims of religious freedom must give way [to] the compelling interest of society in fighting . . . contagious diseases through mandatory inoculation programs. . . . The legislature’s creation of a statutory exception . . . goes beyond what the Supreme Court has declared the First
Amendment require[s] . . .”); Davis v. State, 294 Md. 370, 451 A.2d 107, 112 (1982) (noting that a state need not “provide a religious exemption from its immunization program” (citing Prince, 321 U.S. 158, 64 S. Ct. 438)); Wright v. DeWitt School District No. 1, 238 Ark. 906, 385 S.W.2d 644, 648 (1965) (finding that smallpox vaccination requirement does not violate free exercise of religion, because individuals’ “freedom to act according to their religious beliefs is subject to a reasonable regulation for the benefit of society as a whole”); Bd. of Ed. of Mountain Lakes v. Maas, 56 N.J.Super. 245, 152 A.2d 394, 405-06 (N.J.Super.Ct.App. Div. 1959) (upholding compulsory vaccination requirement, noting “ ‘the constitutional guaranty of religious freedom was not intended to prohibit legislation with respect to the general public welfare’ ” (quoting Sadlock v. Bd. of Ed. of Borough of Carlstadt, 137 N.J.L. 85, 58 A.2d 218, 222 (N.J. 1948)); see also Baer v. City of Bend, 206 Or. 221, 292 P.2d 134 (1956) (city fluoridation ordinance does not violate religious liberty); State ex rel. Holcomb v. Armstrong, 39 Wash.2d 860, 239 P.2d 545 (1952) (mandatory x-ray examination to detect tuberculosis does not violate students’ religious freedom rights); Rice v. Commonwealth, 188 Va. 224, 49 S.E.2d 342, 347 (1948) (“The individual cannot be permitted, on religious grounds, to be the judge of his duty to obey the regulatory laws enacted by the State in the interests of the public welfare.”); Steve P. Callandrillo, Vanishing Vaccinations: Why Are So Many Americans Opting Out of Vaccinating Their Children? 37 U.Mich.J.L.reform 353, 358 n.20 (2004) (“[N]o case . . . holds that [religious] exemptions [to vaccination requirements] must be provided by states.”). 3. In a 2007 New York case, a federal district court denied a school district’s motion for summary judgment where plaintiff parents claimed that vaccinations were contrary to their religious beliefs. New York, by statute, permits exemptions from vaccinations for students of parents who have religious beliefs that oppose vaccinations. The federal court said that the threshold question was whether the claimant had “sincerely held religious beliefs” concerning vaccinations. Such subjective questions must be examined for proof as
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Vaccination
to state of mind, motive, and sincerity of conscience. In denying the school district’s motion, the court held that such determination can only be decided by a jury. A jury trial was, therefore, required. Moses v. Bayport Bluepoint Union Free School District, 2007, WL 526610 (E.D.N.Y. 2007). 4. In another 2007 New York case a boy sought to be exempted from a tetanus vaccination and permitted to participate in extracurricular activities, lacrosse, in particular. He claimed exemption under the New York state statute that permitted exemptions to attend public schools if the claimant had truly held religious beliefs that opposed vaccinations. The court ruled that the boy had no right under the law to participate in public school extracurricular activities; therefore, if he wanted to participate, he must be immunized. The boy’s claim for exemption was dismissed. Hadley v. Rush Henrietta Central School District, 2007 WL 1231753 (W.D.N.Y., 2007). 5. When a Wyoming parent objected to having her child vaccinated for Hepatitis B based on a religion exemption provision of a state code, the Health Department asked the parent to define her religious beliefs. The statute provided “waivers shall be authorized by the state or county health officer upon submission of written evidence of religious objection or medical contraindication to the administration of any vaccine.” The court held that the Health Department exceeded its statutory authority by inquiring into the sincerity of the parent’s religious beliefs, and therefore, the parent prevailed. LePage v. Wyoming, 18 P.3d 1177 (Wy. 2001). 6. In another Wyoming case, the parents requested an exemption based on medical contraindication. The parents had the child’s physician fill out the requested exemption form. The physician completed the form and marked all immunizations as medically contraindicated for the student. The Health Department requested the specific reason for the medical exemption. When litigated, the court held that the Department of Health exceeded its statutory authority in requiring a specific reason for the medical exemption. Jones v. Wyoming, 18 P. 3d 1189 (Wy. 2001).
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7. In an Arkansas case, McCarthy v. Boozman, 212 F. Supp. 2d 945 (S.D. Ark. 2002), a parent claimed that the state immunization statute was unconstitutional. The court held for the state, saying: Plaintiff’s challenge to the constitutionality of mandatory immunization warrants no extensive discussion. It has long been settled that individual rights must be subordinated to the compelling state interest of protecting society against the spread of disease.
7. Vaccine Act. The National Childhood Vaccine Injury Compensation Act of 1986 or “Vaccine Act,” 42 U.S.C.A. §§ 300aa – 1 et seq, established a no-fault compensation scheme making it faster and easier for persons suffering injury caused by vaccines to recover damages while discouraging costly and difficult litigation that threatened to force manufacturers out of the market. A Georgia appeals court held in 2007 that design defect claims against manufacturers were not preempted by the Act. Ferrari v. American Home Products Corp., 286 Ga. App. 305, 650 S.E.2d 585, (2007), cert. granted, (Jan 7, 2008) and judgment affirmed, 284 Ga.384, 668 S.E.2d 236 (2008), petition for cert. filed, 77 U.S. L.W. 3531 (U.S. Mar. 5, 2009). 8. A statutory provision allowing an exemption to parents who oppose immunization of their children on religious grounds does not extend to exemptions for persons whose opposition to vaccination is based purely on moral, medical, or scientific considerations, nor is an exemption permitted for personal secular or philosophical beliefs. Berg v. Glen Cove City School District, 853 F. Supp. 651 (E.D.N.Y. 1994). 9. The Nebraska Supreme Court has made two important points regarding immunization. First, a specific statute which deals with exclusion of unimmunized students during an outbreak of a dangerous and communicable disease takes precedence over a more general statute permitting student waiver from vaccination. Second, a school board was within its power to exclude public school students for a particular time period who were not immunized against Rubella. Maack v. School District of Lincoln, 241 Neb. 847, 491 N.W.2d 341 (1992).
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Summation of Case Law
Compulsory Schooling 1. A democratic society rests for its continuance upon the healthy, well-rounded growth of young people into full maturity as citizens with all that implies, and a state may secure such against impeding restraints and dangers within a broad range of selection. 2. The state has a wide range of power for limiting parental freedom and authority in things affecting the child’s welfare and such power includes to some extent matters of conscience and religious conviction. 3. The custody, care, and nurture of the child resides first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder. 4. The authority of the State as parens patriae is not nullified merely because parents ground their claim to control the child’s course of conduct on religion or conscience. Limitation of State Prerogative 1. Constitutional rights may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the state. 2. A state compulsory education act requiring attendance at public schools only and not at private schools is unconstitutional as violative of the Fourteenth Amendment. 3. A state’s interest in universal education, however highly regarded, is not totally free from a balancing process when it impinges on individual fundamental rights and interests. 4. However strong a state’s interest in universal compulsory education, it is by no means absolute to the exclusion or subordination of all other interests. 5. Beliefs which are philosophical and personal, rather than religious, do not rise to the demands of the Religion Clause of the First Amendment. 6. The power of the parent to educate a child, even when linked to a free exercise of religion claim, may be subject to limitation if it appears that parental decisions will jeopardize the health or safety of the child or have a potential for significant social burdens. 7. The First and Fourteenth Amendments prevent a state from compelling Amish parents
to cause their children, who have graduated from the eighth grade, to attend formal high school to age 16. 8. Compulsory school legislature may not intend the “Amish exception” to a compulsory attendance law to be available to any and all church groups who seek to provide for a religiously oriented education. Immigration and Residence 1. In applying the Equal Protection Clause, the U.S. Supreme Court seeks the assurance that a classification bears some fair relationship to a legitimate public purpose. 2. Whatever his or her status under the immigration laws, an alien is a “person” in any ordinary sense of that term, and thus, is entitled to protection under the Equal Protection Clause. 3. Although persuasive arguments support the view that a state may withhold its beneficence from those whose very presence within United States is product of their own unlawful conduct, those arguments do not apply with same force to classifications imposing disabilities on the minor children of illegal entrants. 4. Public education is not a “right” granted to an individual by the Constitution; but neither is it merely some governmental “benefit” indistinguishable from other forms of social welfare legislation. 5. In addition to the pivotal role of education sustaining our political and cultural heritage, denial of education to some isolated group of children poses an affront to one of the goals of the Equal Protection Clause, the abolition of governmental barriers presenting unreasonable obstacles to advancement on the basis of individual merit. 6. There is no national policy which supports a state statute which withholds from local school districts state funds for the education of children who were not “legally admitted” into the United States. 7. A bona fide resident requirement of a state statute which was appropriately defined and uniformly applied with respect to attendance in free public schools, and does not burden or penalize the constitutional right of interstate travel, does not violate the Equal Protection Clause of the Fourteenth Amendment. 8. A state statute permitting a school district to deny free admission to a minor who lived
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Research Aids
apart from his or her parent or guardian if his or her presence in district was for the primary purpose of attending free public schools is a bona fide residence requirement that satisfies constitutional standards. Homeschooling 1. For First Amendment purposes, government has a compelling interest in educating all its citizens. 2. Parents do not have a constitutional right to control each and every aspect of their children’s education and oust the state’s authority. 3. A school district’s policy generally prohibiting part-time attendance at a public school does not violate a homeschooled student’s right to free exercise of religion where the policy is neutral of general application, and the policy neither prohibits the parents from homeschooling students in accordance with their religious beliefs nor forces them to do anything contrary to their beliefs. 4. A state statute requiring standardized tests to be given to homeschool students under supervision of a test administrator does not deprive parents of the right to free exercise of religion, even though the parents believe that they should be completely responsible for every aspect of the child’s education. 5. There is no fundamental right of parents to supervise their children’s education to the extent where the parents are completely responsible for every aspect of that education, and thus strict-scrutiny constitutional analysis is inappropriate to determine whether a state homeschool act violates the equal protection rights of parents who insist on educating their own children. 6. The constitutional right of privacy does not extend to protect parental decisions concerning direction of child’s education from state interference. 7. Although parents have a right to send their children to schools other than public institutions, they do not have the right to be completely unfettered by reasonable government regulations as to the quality of the education furnished. 8. Parents may be enjoined from operating a school in their home if they do not comply with the school laws of the state and they also may be subjected to criminal penalties.
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9. A state statute requiring a school superintendant to “offer assistance, including textbooks, other teaching materials and available resources as may assist persons providing home instruction” does not require that school officials make interscholastic sports available to homeschooled children. 10. Denial of a homeschooled youth participation in a public school interscholastic athletic program does not violate the Equal Protection Clause. Vaccination 1. A state legislature, in enacting a statute purporting to be for the protection of local communities against the spread of smallpox, is entitled to choose between the theory of those of the medical profession who think vaccination worthless and which is in accord with those who believe that it is necessary for the general welfare. 2. State laws that require vaccination of children as a condition of their attendance in public schools is a valid exercise of the police power of the state.
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Research Aids
Research citations below are abbreviated as: American Law Reports (A.L.R.), American Jurisprudence (Am.Jur.), Corpus Juris Secundum (C.J.S.), and McQuillen Municipal Corporations (McQuillen Mun.Corp.). Explanations for each of these sources of law are found in Chapter 1 of this text. Also, see Appendix B of this book. Compulsory Schooling 7 McQuillen Mun. Corp. (3d ed.) § 24:454. Municipal Police Power and Ordinances: Engagement of Children in Religious Activities. 67A C.J.S. Parent and Child § 44. Rights and Duties Incident to Relationship: Limitations on Parental Rights. 59 Am.Jur.2d Parent and Child § 18. Parental Rights and Duties. 124 A.L.R. 5th 203, Religion as Factor in Child Custody Cases. Limitation of State Prerogative 63 Am.Jur. Proof of Facts 3d § 195. Interference with the Right to Free Exercise of Religion. 16A C.J.S. Constitutional Law § 755. Free Exercise of Religion. 68 Am.Jur.2d Schools § 452. Schools, Religion, and the First Amendment.
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Immigration and Residence 16B Am.Jur.2d Constitutional Law § 806. Privileges and Immunities of Citizenship. 3 C.J.S. Aliens § 100. State Laws Providing Educational and Other Benefits or Services for Illegal Aliens. 16B C.J.S. Constitutional Law § 1101. Equal Protection: Persons Protected. 16B McQuillin Mun. Corp. (3rd ed.) § 46.18.10. Government and Discipline—Residency Requirements. 67B Am.Jur.2d Schools § 259. Presumption Based on Parents Residence. 67B Am.Jur.2d Schools § 260. Child Not Residing with Parent or Legal Guardian. 113 A.L.R. 177. Constitutionality, Construction, and Effect of Statutes in Relation to Admission of Nonresident Pupils to School Privileges. Homeschooling 70 A.L.R. 5th 169, Validity, Construction, and Application of Statute, Regulation, or Policy Governing Homeschooling or Affecting Rights of Homeschooled Students. 67B Am.Jur.2d Schools § 270. Compulsory Attendance: Home Education as an Alternative to Public School; Home Education as Constituting a Private School. 163 A.L.R. Fed. § 493. What Constitutes “Hybrid Rights” Claim? 16A Am.Jur.2d Constitutional Law § 446. Fundamental Rights and Privileges: First Amendment Rights, Religious Freedom. Vaccinations 93 A.L.R. 1413, Power of Municipal or School Authorities to Prescribe Vaccination or Other Health Measure as a Condition of School Attendance. 39A C.J.S. Health & Environment § 36. Health Regulation: Measures to Prevent Spread of Disease. 39 A.L.R. Fed.2d 155. Construction and Application of Prevention of National Childhood Vaccine Injury. Compensation Act of 1986 (“Vaccine Act”).
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Endnotes
1. Immanuel Kant, The Metaphysics of Morals, trans. Mary Gregor (Cambridge: Cambridge University Press, 1993), pp. 191–192. 2. Ibid. 3. Ibid.
4. R. Freeman Butts and Lawrence A. Cremin, A History of Education in American Culture (New York: Henry Holt and Co., 1953), p. 357. 5. Griffin v. County School Board of Prince Edward County, 377 U.S. 218, 84 S. Ct. 1226 (1964), rev’g County School Board of Prince Edward County v. Griffin, 204 Va. 650, 133 S.E.2d 565 (1963). 6. Plyler v. Doe, 457 U.S. 202, 102 S. Ct. 2382 (1982). 7. C. Vann Woodward, Origins of the New South, 1877– 1913 (Baton Rouge: Louisiana State University Press, 1971), pp. 416–417. 8. Manufacturer’s Record, XLII (August 28, 1902), pp. 93–95. 9. Milton and Rose Friedman, Free to Choose (New York: Harcourt Brace Jovanovich, 1980), pp. 162–163. 10. S. G. Messmer, “Compulsory Education,” 6 American Ecclesiastical Review, pp. 279–298 (1892). 11. Ibid. 12. R. Freeman Butts and Lawrence A. Cremin, op. cit. 13. 347 U.S. 483, 74 S. Ct. 686 (1954). 14. Acts of Assembly, Chapter 2, p. 4 (1959), repealing Virginia Code (1950) §§ 22.251-22.275. 15. See Chapter 19, “Desegregation,” of this book for more detail on desegregation; see also A. E. Dick Howard, Commentaries on the Constitution of Virginia, Vol. 2 (Charlottesville: University Press of Virginia, 1974), p. 893. 16. Strangway v. Allen, 194 Ky. 681, 240 S.W. 384 (1922). 17. County of McLean v. Humphrey, 104 Ill. 378 (1882). 18. In re Gault, 387 U.S. 1, 87 S. Ct. 1428 (1967). 19. Wisconsin v. Yoder, 406 U.S. 205, 92 S. Ct. 1526 (1972). 20. Ford v. Ford, 371 U.S. 187, 83 S. Ct. 273 (1962). 21. Pierce v. the Society of Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510, 45 S. Ct. 571 (1925). 22. Prince v. Massachusetts, 321 U.S. 158, 166, 64 S. Ct. 438, 442 (1944). 23. Andrew Jay Kleinfeld, “The Balance of Power Among Infants, Their Parents and the State,” 5 ABA Family Law Quarterly, p. 107 (1971). 24. Salem Community School Corp. v. Easterly, 150 Ind. App. 11, 275 N.E.2d 317 (1971). 25. Kleinfeld, op. cit., p. 92. 26. Ibid., p. 93. 27. Morris v. Morris, 92 Ind. App. 65, 171 N.E. 386 (1930); Sisson v. Schultz, 251 Mich. 553, 232 N.W. 253 (1930). 28. Heffington v. Jackson, 43 Tex. Civ. App. 560, 96 S. W. 108 (1906). 29. Luques v. Luques, 127 Me. 356, 143 A. 263 (1928). 30. Hiram D. Gordon, “Terminal Placements of Children and Permanent Termination of Parental Rights: The New York Permanent Neglect Statute,” 46 St. Johns Law Review, p. 215 (1971). 31. Harvey J. Eger and Anthony J. Popeck, “The Abused Child: Problems and Proposals,” 8 Duquesne Law Review, p. 136 (1969–70). 32. State v. Perricone, 37 N.J. 463, 181 A.2d 751 (1962); People v. Pierson, 176 N.Y. 201, 68 N.E. 243 (1903). 33. Morrison v. State, 252 S.W.2d 97 (Mo. App. 1952). 34. Mass. Gen. Laws Ann., ch. 272, § 53 (1958). 35. See Alexander v. Bartlett, 14 Mich. App. 177, 165 N.W.2d 445 (1968). 36. 14 A.L.R.2d 1369; Knox v. O’Brien, 7 N.J. Super. 608, 72 A.2d 389 (1950).
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Endnotes 37. State v. Whisner, 47 Ohio St. 2d 181, 351 N.E.2d 750 (1976). 38. State v. Garber, 197 Kan. 567, 419 P.2d 896 (1966). 39. Murphy v. State of Arkansas, 852 F.2d 1039 (1988). 40. Ibid. 41. Ibid. 42. Ibid. 43. Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary, op. cit. 44. Ibid. 45. Grosz v. City of Miami Beach, 721 F.2d 729 (11th Cir. 1983). 46. State ex rel. Douglas v. Faith Baptist Church, 207 Neb. 802, 301 N.W.2d 571 (1981), appeal dismissed, 454 U.S. 803, 102 S. Ct. 75 (1981). 47. State ex rel. Douglas v. Calvary Academy, 217 Neb. 450, 348 N.W.2d 898 (1984). See also McCurry v. Tesch, 738 F.2d 271 (8th Cir. 1984). 48. Sheridan Road Baptist Church v. Department of Education, 132 Mich. App. 1, 348 N.W.2d 263 (1984). 49. In re Proios, 111 Misc. 2d 252, 443 N.Y.S.2d 828 (N.Y. Supp. Ct. 1981). 50. Martinez v. Bynum, 461 U.S. 321, 103 S. Ct. 1838 (1983). 51. Inhabitants of Warren v. Inhabitants of Thomaston, 43 Me. 406 (1857). 52. Sturgis v. Washington, 414 U.S. 1057, 94 S. Ct. 563 (1973). 53. Restatement (Second) of Conflict of Laws, § 18, Comment (h) (1971). 54. Board of Education of Golf School District No. 67 v. Regional Board of School Trustees, 89 Ill. 2d 392, 60 Ill Dec 443, 433 N.E.2d 240 (1982); Dresner v. Regional Board of School Trustees of Kane County, 150 Ill. App. 3d 765, 103 Ill Dec. 666, 501 N.E.2d 983 (1986); Granfield v. Regional Board of School Trustees of Bureau County, 108 Ill App. 3d 703, 64 Ill. Dec 246, 439 N.E.2d 497 (1982); Fowler v. Clayton School District, 528 S.W.2d 955, 958 (Mo. App. 1975). 55. In re Curry, 113 Mich. App. 821, 318 N.W.2d 567 (1982). 56. Pennsylvania Interscholastic Athletic Association, Inc. v. Greater Johnstown School District, 76 Pa. Cmmw. 65, 463 A.2d 1198 (1983). 57. Delta Special School District No. 5 v. McGehee Special School District No. 17, 280 Ark. 489, 659 S.W.2d 508 (1983). 58. Matt Ridley, The Origins of Virtue: Human Instincts and Evolution of Cooperation, (New York: Penguin Books, 1998), pp. 156–157. 59. Ibid., pp. 168–169. 60. E. J. Hobsbawm, Nations and Nationalism Since 1780: Programme, Myth, and Reality (Cambridge: Cambridge University Press, 1992), p. 10. 61. Ibid. 62. Fareed Zakaria, The Post-American World (New York: W. W. Norton & Company, 2009), p. 196. 63. Ibid., p. 198. 64. Ibid., pp. 198–199. 65. Ridley, op. cit. 66. Hobsbawm, op. cit., p. 10. 67. Ibid., pp. 93–94. 68. Plyler v. Doe, 457 U.S. 202, 102 S. Ct. 2382 (1982). 69. Martinez v. Bynum, 461 U.S. 321, 103 S. Ct. 1838 (1983). 70. James J. Heckman and Alan B. Krueger, Inequality in America (Cambridge, Mass.: the MIT Press, 2003), p. 11. See also John Hills, Inequality and the State, (Oxford: Oxford University Press, 2004), pp. 29, 57.
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71. John Hills, Inequality and the State (Oxford: Oxford University Press, 2004) p. 139. 72. 42 U.S.C. § 11432. EHCY is found in the No Child Left Behind Act, Section 722 (g). 73. Subtitle B, Section 721 (1) Statement of Policy. 74. Subtitle B, Section 721 (2). 75. Subtitle B, Section 722 (e) (3). 76. Subtitle B, Section 722 (J) (3) (B) (i). 77. National Law Center on Homelessness and Poverty, R.I.V. State of New York, 224 F. R. D. 314 (E.D.N.Y. 2004). 78. National Law Center on Homelessness and Poverty v. New York, 224 F. R. D. 314, 193 Ed. Law Rep. 231 (2004). 79. Lampkin v. District of Columbia, 27 F.3d 605 (1994). 80. 42 U. S. C. § 11432 (g) (3). 81. Plyler v. Doe, 457 U.S. 202, 102 S. Ct. 2382 (1982). 82. Longwood Center School District v. Springs Union Free School District, 806 N.E.2d 970 (N.Y. 2004). 83. Ibid. 84. Delgado v. Freeport Public School District, 131 Misc. 2d 102, 499 N.Y.S.2d 606 (N.Y. Sup. Ct. 1986). 85. Harrison v. Sobol, 705 F. Supp. 870 (S.D.N.Y. 1988). 86. Clarke v. Redeker, 259 F. Supp. 117 (S.D. Iowa, 1967) aff’d, 406 F.2d 833 (1969) cert denied, 396 U.S. 862 (1969) and Landwehr v. Regents of University of Colorado, 156 Colo. 1, 396 P.2d 451 (1964). 87. Martinez v. Bynum, 461 U.S. 321, 103 S. Ct. 1838 (1983). 88. Pierce v. Society of Sisters, op. cit. 89. Hamilton v. Regents, 293 U.S. 245, 55 S. Ct. 197 (1934). 90. Ibid. 91. Rice v. Commonwealth, 188 Va. 224, 49 S.E.2d 342, 3 A.L.R.2d 1392 (1948). 92. Commonwealth v. Bey, 57 York Leg. Rec. (Pa.) 200, 92 Pitts. Leg. J. 84 (1944). 93. See also In re Currence, 42 Misc. 2d 418, 248 N.Y.S.2d 251 (1963) (religious observance was no defense for withdrawing a boy from school weekly on Wednesday afternoons and Thursday mornings). 94. Wisconsin v. Yoder, op. cit. 95. Fellowship Baptist Church v. Benton, 815 F.2d 485 (8th Cir. 1987). 96. Null v. Board of Education of County of Jackson, 815 F. Supp. 937 (S.D. W.Va. 1993). 97. R. Freeman Butts and Lawrence Cremin, op. cit., p. 357. 98. Meyer v. Nebraska, 262 U.S. 390, 43 S. Ct. 625 (1923). 99. Ibid. 100. Pierce v. Society of Sisters, op. cit. 101. Prince v. Massachusetts, 321 U.S. 158, 64 S. Ct. 438 (1944). 102. Ibid. 103. Ibid. 104. Meira Levinson, The Demands of Liberal Education (Oxford: Oxford University Press, 1999), p. 47. 105. Ibid. 106. Knox v. O’Brien, 7 N.J. Super. 608, 72 A.2d 389 (1950). See: Donald T. Kramer, “Legal Rights of Children,” 2 Leg. Rts. Child Rev. 2d § 24-28 (2009). 107. State v. Edgington, 99 N.M. 715, 663 P.2d 254 (1982). 108. State v. Bowman, 60 Or. App. 184, 653 P.2d 254 (1982). 109. Appeal of Pierce, 122 N.H. 762, 451 A.2d 363 (1982). 110. State v. Counort, 69 Wash. 361, 124 P. 910 (1912).
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111. State v. Hoyt, 84 N.H. 38, 146 A. 170 (1929). 112. State v. Will, 99 Kan. 167, 160 P. 1025 (1916). 113. State v. Lowry, 191 Kan. 701, 383 P.2d 962 (1963). 114. Hubbard ex rel. Hubbard v. Buffalo Independent School District, 20 F. Supp. 1012 (W. D. Tex. 1998). 115. State v. Peterman, 32 Ind. App. 665, 70 N.E. 550 (1904). 116. Ibid. 117. Sheppard v. State, 306 P.2d 346 (Okla. Crim. App. 1957). 118. Care and Protection of Charles, 399 Mass. 324, 504 N.E.2d 592 (1987). 119. Care and Protection of Charles, op. cit., citing Runyon v. McCrary, 427 U.S. 160, 96 S. Ct. 2586 (1976). 120. Care and Protection of Charles, op. cit. See also Johnson v. Charles City Community Schools Board of Education, 368 N.W.2d 74, cert. denied sub nom., Pruessner v. Benton, 474 U.S. 1033, 106 S. Ct. 594 (1985). 121. People v. DeJorge, 501 N.W.2d 125 (Mich. 1993). 122. State v. Anderson, 427 N.W.2d 316 (N.D. 1988), cert. denied, 488 U.S. 965, 109 S. Ct. 491 (1988). 123. State v. Merlin, 428 N.W.2d 727 (N.D. 1988), cert. denied, 488 U.S. 942, 109 S. Ct. 367 (1988). 124. Swanson v. Guthrie Independent School District I-L, 135 F.3d 694 (10th Cir. 1998). 125. Pelletier v. Maine Principals Association, 261 F. Supp. 2d 10 (D. Me. 2003). 126. Ibid. 127. Ibid. 128. See 20 U.S.C. § 1401; 34 C. F. R. Part 300. 129. Forstrom v. Byrne, 775 A.2d 65 (N.J. Super. Ct. App. Div. 2001). 130. Hooks v. Clark County School District, 228 F.3d 1036 (9th Cir. 2000). 131. Ibid. 132. In re S.M., 824 A.2d 593 (Vt. 2003). 133. Null v. Board of Education of Jackson, 815 F. Supp. 937 (S.D. W.Va. 1993). 134. See Griffin v. County School Board of Prince Edward County, 377 U.S. 218, 84 S. Ct. 1226 (1964), rev’g County School Board of Prince Edward County v. Griffin, 204 Va. 650, 133 S.E.2d 565 (1963). 135. In re Jeannette L., 71 Md. App. 70, 523 A.2d 1048 (1987), cert. denied, 530 A.2d 273 (Md. 1987). 136. Commonwealth v. Hall, 309 Pa. Super. 407, 455 A.2d 674 (1983). 137. State v. Turner, 9 Wash. 2d 731, 658 P.2d 658 (1983).
138. People v. Berger, 109 Ill. App. 3d 1054, 65 Ill. Dec. 600, 441 N.E.2d 915 (1982). 139. State v. Priest, 210 La. 389, 27 So.2d 173 (1946). 140. In re State, 214 La. 1062, 39 So.2d 731 (1949). 141. In re Rogers, 36 Misc. 2d 680, 234 N.Y.S.2d 172 (1962). 142. Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 25 S. Ct. 358 (1905). 143. Ibid. 144. Ibid., p. 364. 145. Blue v. Beach, 155 Ind. 121, 56 N.E. 89 (1900); Morris v. Columbus, 102 Ga. 792, 30 S.E. 850 (1898); State v. Hay, 126 N.C. 999, 35 S.E. 459 (1900); Abeel v. Clark, 84 Cal. 226, 24 P. 383 (1890); Bissell v. Davison, 65 Conn. 183, 32 A. 348 (1894); Hazen v. Strong, 2 Vt. 427 (1830); Duffield v. School District of Williamsport, 162 Pa. 476, 29 A. 742 (1894). 146. Viemeister v. White, 179 N.Y. 235, 72 N.E. 97 (1904). 147. People v. McIlwain, 151 N.Y.S. 366 (1915). 148. People v. Ekerold, 211 N.Y. 386, 105 N.E. 670 (1914). 149. Cantwell v. Connecticut, 310 U.S. 296, 60 S. Ct. 900, 128 A.L.R. 1352 (1940). 150. Wisconsin v. Yoder, op. cit. 151. State v. Drew, 89 N.H. 54, 192 A. 629 (1937). 152. Board of Education of Mountain Lakes v. Maas, 56 N.J. Super. 245, 152 A.2d 394 (N.J. App. Div. 1959). 153. Stull v. Reber, 215 Pa. 156, 64 A. 419 (1906). 154. Hill v. Bickers, 171 Ky. 703, 188 S.W. 766 (1916). 155. Board of Trustees v. McMurtry, 169 Ky. 457, 184 S.W. 390 (1916). 156. Mosier v. Barren County Board of Health, 308 Ky. 829, 215 S.W.2d 967 (1948). 157. Potts v. Breen, 167 Ill. 67, 47 N.E. 81 (1897); People ex rel. Labaugh v. Board of Education of District No. 2, 177 Ill. 572, 52 N.E. 850 (1899). 158. Farina v. Board of Education of City of New York, 116 F. Supp. 2d 503 (S.D.N.Y. 2000).
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Quoted Box Citations
Michael Walzer, Spheres of Justice (New York: Basic Books, Inc., 1983), pp. 216, 219. Aristotle: The Politics and The Constitution of Athens, edited by Stephen Everson (Cambridge: Cambridge University Press, 1996), p. 195. Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 43 (1944).
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CHAPTER 7
The Instructional Program Man has a duty to raise himself from the crude state of his nature. . . . [H]e has a duty to diminish his ignorance by instruction and to correct his errors. . . . [M]orally practical reason commands it absolutely and makes this end his duty. —Immanuel Kant, The Metaphysics of Morals [There] is a close link between evolution of knowledge and moral progress. As we become more intelligent we become more moral. —Owen Chadwick, The Secularization of the European Mind in the Nineteenth Century, 1975
CHAPTER OUTLINE ■
INTRODUCTION
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MARKETPLACE OF IDEAS
Withholding Diploma
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JUDICIAL DEFERENCE TO SCHOOL OFFICIALS
Grade Reduction
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Limitation on State Power
GRADING AND ACADEMIC REQUIREMENTS
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GRADE STANDARDS FOR EXTRACURRICULAR ACTIVITIES
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CURRICULUM AND THE PALL OF ORTHODOXY
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HEALTH EDUCATION
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BILINGUAL EDUCATION PROGRAMS
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EVOLUTION VERSUS CREATIONISM
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SUMMATION OF CASE LAW
STUDENT TESTING AND PROMOTION
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RESEARCH AIDS
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Due Process and Testing Equal Protection and Testing
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Introduction
As a general rule, the precedents of the U.S. Supreme Court have fostered openness and expansiveness of knowledge, preventing both the purveyors of knowledge as well as the recipients from limiting inquiry or restraining
access to information. Students are possessed with fundamental rights that the state must protect, and the students themselves must respect their obligations to the state.1 The Supreme Court, in Tinker v. Des Moines Independent School District, addressed this relationship between the state and the student, saying: “In our system, students
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may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved.”2 On the other hand, it is within the prerogative of the state to determine what the school curriculum shall be. The state must ultimately decide what is being taught and the methodology for teaching so long as the freedoms of teachers and students are not offended. This view was most succinctly expressed by one federal court when it said that “[t]he boundaries of expressive conduct have been particularly cabined when the conduct is associated with school curricula.”3 The state, as the sovereign, possesses the authority to prescribe the curriculum and prescribe the conditions under which the knowledge is to be conveyed. Upon entering a public school, a child becomes subject to state and local administrative regulations as well as to state laws governing public education. These regulations are an exercise of state police power, which is the inherent sovereign power allowing the state to provide for the health, safety, and well-being of its citizens. Such provisions establish the framework within which each child is afforded a free public education. Education may be viewed differently by educators, parents, students, or various special interest groups, but few would argue that a public education program should not be expansive and broadening of one’s perspective and knowledge. The public school has been quite accurately defined as a “marketplace of ideas.”
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First Amendment not only creates a marketplace of intellectual ideas for the students, but also benefits the teacher in the presentation of ideas. Courts have, thus, generally given wide latitude to the state in matters involving the educational program. In one notable case in Michigan, parents sought a writ of mandamus to prevent using the novel Slaughterhouse Five as a part of the instructional program. The parents alleged that the material was obscene, profane, and repugnant to the religious provisions of the First Amendment. The court, in an exposition on the law, first observed that although there may have been religious references in the work, the book itself did not violate the students’ and parents’ religious freedom. To declare otherwise, the court concluded, would censor and prevent the public schools from making use of many great works of the past: If plaintiffs’ contention was correct, then public school students could no longer marvel at Sir Galahad’s saintly quest for the Holy Grail, nor be introduced to the dangers of Hitler’s Mein Kampf, nor read the mellifluous poetry of John Milton and John Donne. Unhappily, Robin Hood would be forced to forage without Friar Tuck and Shakespeare would have to delete Shylock from The Merchant of Venice. Is this to be the state of our law? Our Constitution does not command ignorance; on the contrary, it assures the people that the state may not relegate them to such a status and guarantees to all the precious and unfettered freedom of pursuing one’s own intellectual pleasures in one’s own personal way.7
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Marketplace of Ideas
The critical position of education in a democratic society is self-evident. Over the years, the courts have come to conclude that society is best served by an educational system that teaches “through wide exposure to that robust exchange of ideas which discovers truth ‘out of a multitude of tongues’ [rather] than through any kind of authoritative selection.”4 Thus, because of the importance of the schools and because this “robust exchange of ideas” is so vital to the educational process, the perpetuation of that exchange is, at all levels of the educational system, “a special concern of the First Amendment.”5 No school can function as a marketplace of ideas unless both students and faculty enjoy an atmosphere conducive to debate and scholarly inquiry.6 The
Judicial Deference to School Officials
Even more to the point, the Michigan court in this case observed that the judges are not to be the experts in what educational programs are offered in the schools. Citing Justice Brennan’s admonition in Schempp,8 the court contended that curriculum determination should be entrusted to the experienced school officials of the nation’s public schools and not to the judges. The appellate court reprimanded the lower trial court for imposing its judgment of “right” and “morality” over that of the school authorities. Such action by a court was forbidden by the state constitution and a matter for the lawfully elected school board to determine. The appellate court concluded that the judicial censor was persona non grata in the formation of public education curriculum policies.
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Judicial Deference to School Officials
Because the public school is a creature of the legislature, 9 and the local school board is the recipient of governance powers delegated by the legislature, the school board occupies a critical juncture in the free flow of ideas and information.10 The educational program of the public school has both academic and disciplinary aspects. Courts have been very hesitant to enter into the academic arena. The position of the courts is stated by the U.S. Supreme Court in a highereducation case that has applicability for elementary and secondary school operation. In Board of Curators of University of Missouri v. Horowitz, the Court said: Academic evaluations of a student, in contrast to disciplinary determinations, bear little resemblance to the judicial and administrative fact-finding proceedings to which we have traditionally attached a full learning requirement. . . . Like the decision of an individual professor as to the proper grade for a student in his course, the determination whether to dismiss a student for academic reasons requires expert evaluation of cumulative information and is not readily adapted to the procedural tools of judicial or administrative decisionmaking. . . . Courts are particularly ill-equipped to evaluate academic performance.11
The courts have generally supported school boards when the schools have expanded the school program or introduced innovative curricula. Thus far, the courts have agreed that the school has the power to regulate and develop curricula for the well-being of the students. These cases also remind us that not all parental discontent is aimed at broadening student knowledge and choice. In many instances, parents seek to restrict or “contract the spectrum of knowledge.” As a result, the courts will tend to weigh parental grievances very carefully, even when a parent feels that a constitutional right is being offended. This judicial position has been demonstrated when a school board sought to reduce the length of the school day, thereby restricting the educational program. For lack of funds, the school board decided to hold one-half-day sessions and to teach certain subjects on a compressed schedule.12 The Michigan Supreme Court decided that in the absence of state board regulations limiting local school board authority in this area, the reduction in the school program was valid. Although the content of the school program itself is an area of concern to parents, an even more
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direct concern is the placement of their children. Aside from the recent statutory emphasis and litigation dealing with children with disabilities, much of the controversy between parent and school has arisen during the child’s first few years of schooling. It is at this level of early childhood education that the parent and the child experience the separation of the child from the home, a particularly sensitive time for parents. In one such New York State case, a mother petitioned the court for an order directing the board of education to admit her son to the first grade.13 Previously, the boy had established an unenviable reputation as a “disciplinary problem.” The school had demoted the boy from the first grade back to kindergarten, an action the parent maintained was arbitrary, capricious, unreasonable, and in violation of the Fourteenth Amendment and the New York Constitution. The board defended itself by maintaining the school principal had made an “educational decision” based on the boy’s inability to perform first-grade work, his test results, and his lack of self-control. The petitioner was unable to rebut the test results. The court held that the placement of the child was within the school’s authority to provide rules and regulations for promotion from grade to grade, based not on age but on training, knowledge, and ability.14 In a similar New York State decision, the parents of a 5-year-old child sought to compel the school board to accept the child into the first grade.15 According to New York law, a 5-yearold is entitled to attend public schools, and the boy’s parents claimed that kindergarten was not the public schools. The court disagreed with the parents, holding that when a kindergarten is established it becomes a part of the public school system. Since the boy was already in public school, the court maintained the parents had no right to insist that the boy be admitted to a particular grade or class in the public school. Most precedents indicate that the courts, though sympathetic with the intentions of the parent, generally defer to authorized and trained educational experts in matters of school policy. In recent years, however, there has been a greater tendency by the courts to delve deeper into the justification and rationale supporting educational policy. School authorities, therefore, are well advised to document placement and curriculum decisions with solid educational rationale.
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However, the collective judgment of the school does hold substantial influence with the courts.
LIMITATION ON STATE POWER Although the school has generally prevailed in curriculum and placement disputes with parents, the state’s power is by no means absolute. Where legitimate constitutional concerns are present, the courts stand ready to invalidate the offending regulations, particularly if the action of the school, as a state agency, tends to contract rather than expand knowledge. Such judicial intervention is not uncommon and has been demonstrated in several notable U.S. Supreme Court cases. One such defining case was Meyer v. Nebraska16 in 1923, which emanated from a national response to World War I that saw several states enact antiGerman legislation. The war created an unusual spirit of nationalism and an environment in which suspicion of foreign influence was of paramount concern. Even President Wilson declared in his 1917 war message to Congress that a war effort required “a firm hand of stern responsibility”17 to curtail domestic disloyalty. These were strong words. At Wilson’s request Congress imposed a military draft, enacted an Espionage Act that authorized the denaturalization and deportation of foreign-born radicals, and made it a criminal offense to obstruct recruitment of troops or to cause military insubordination. The federal Justice Department interpreted the Espionage Act to permit censorship of statements critical of the war effort, and the postal service revoked mailing privileges for publications that could “embarrass or hamper the government in conducting the war.”18 As the intensity of anti-German feelings increased during the war, Congress responded in 1918 by expanding the Espionage Act to prohibit “disloyal” or “abusive” statements about the American form of government.19 These events led to the Supreme Court’s famous precedent in 1919, upholding socialist leader Charles T. Schenck’s conviction for encouraging draft-age men to resist conscription. In this era of warinduced extremes, education was naturally affected. State governments followed the national example of restriction on speech and liberty by enacting legislation designed to induce and enhance a greater nationalistic spirit of the citizenry. In Schenck v. United States, the great Supreme Court Justice Oliver Wendell Holmes said
in a much-quoted passage upholding the Act, that the question is whether the words uttered “are of such a nature to create a clear and present danger”; if so, the conviction will stand.20 Notable among these types of war statutes at the state level was the prohibition against teaching German in all schools, both public and private. Yet, by the time such state legislation was challenged before the U.S. Supreme Court in 1923, the fear of war had subsided, the Treaty of Versailles had been signed, and the country had assumed a more balanced view of civil liberties and freedom of speech and expression. It was in this new and more tolerant postwar period that the Supreme Court examined the anti-German school legislation in Meyer v. Nebraska and found it to be impermissible as violative of the Due Process Clause of the Fourteenth Amendment. Two other cases, Bartels from Iowa21 and Bohning from Ohio,22 raised essentially the same issues as were litigated in Meyer, and the Supreme Court ruled accordingly. These cases were meaningful because they formed the constitutional rationale for invoking a substantive aspect of the Due Process Clause to protect civil liberties and freedoms. (See Chapter 8 for a more complete explanation of substantive due process.) After Meyer, any state legislation that constricted the flow of information or knowledge became suspect as having the potential to offend due process.
Board Has the Power to Enforce Reasonable Rules Prescribing Specific Curriculum
State ex rel. Andrews v. Webber Supreme Court of Indiana, 1886. 108 Ind. 31, 8 N.E. 708.
HOWK, C.J. . . . The relator . . . said that he was the father and natural guardian of one Abram Andrew, who was a white male child, between the ages of six and twenty-one years, to-wit, of the age of twelve years. . . . The said Abram Andrew being sufficiently advanced in his studies, in accordance
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Judicial Deference to School Officials
with the relator ’s desire and consent, and in compliance with his legal rights in the premises, was admitted as a pupil in such high school, to receive instruction therein, and thereafter, until his suspension, as hereinafter stated, was regular in his attendance and deportment, and was obedient and respectful to his teachers, and properly subordinate to the rules and regulations of such school; that among the exercises prescribed by such superintendent, with the sanction of such board of trustees, for the pupils of the high school, was a requirement that each of the pupils should, at stated intervals, employ a certain period of time in the study and practice of music, and that they should provide themselves with prescribed books for that purpose; that the relator, believing it was not for the best interest of said Abram Andrew, and not in accordance with the relator ’s wishes regarding the instruction of his said son, in a respectful manner asked of such superintendent that Abram Andrew might be excused from the study and practice of music at such exercises, and directed Abram Andrew not to participate therein, all in good faith, and in a respectful manner, and with no intention of in any manner interfering with the government, rules, and regulations of such schools, except insofar as he might legally control and direct the education of his said son, which purpose and desire were fully communicated by him to such superintendent. But the relator said that, notwithstanding his said desire and request so communicated to such superintendent as aforesaid, the superintendent, on or about the fourteenth day of October, 1885, in disregard of the relator’s wishes and request, required said Abram Andrew to participate in the practice and study of music, and upon the refusal of said Abram Andrew to participate in such exercises and study, which he did without disrespect to such superintendent, and entirely because of the relator’s direction, which was so communicated to such superintendent as aforesaid, the superintendent suspended said Abram Andrew from such school, without assigning any cause therefore. . . . This action is brought by the father and natural guardian of the suspended pupil, to compel, by mandate, the governing authorities of the school corporation to revoke such suspension, and to readmit such pupil to the high school.
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The question for our decision in this case, as it seems to us, may be thus stated: Is the rule or regulation for the government of the pupils of the high school of the school city of La Porte, in relation to the study and practice of music, a valid and reasonable exercise of the discretionary power conferred by law upon the governing authorities of such school corporation? In section 4497, Rev. St. 1881, in force since August 16, 1869, it is provided as follows: “The common schools of the state shall be taught in the English language; and the trustee shall provide to have taught in them orthography, reading, writing, arithmetic, geography, English grammar, physiology, history of the United States, and good behavior, and such other branches of learning, and other languages, as the advancement of pupils may require, and the trustees from time to time direct.” Under this statutory provision and others of similar purport and effect, to be found in our school laws, it was competent, we think, for the trustees of the school city of La Porte to enact necessary and reasonable rules for the government of the pupils of its high school, directing what branches of learning such pupils should pursue, and regulating the time to be given to any particular study, and prescribing what book or books should be used therein. Such trustees were and are required, by the express provisions of section 4444, Rev. St. 1881, in force since March 8, 1873, to “take charge of the educational affairs” of such city of La Porte; “they may also establish graded schools, or such modifications of them as may be practicable, and provide for admitting into the higher departments of the graded school, from the primary schools of their townships, such pupils as are sufficiently advanced for such admission.” The power to establish graded schools carries with it, of course, the power to establish and enforce such reasonable rules as may seem necessary to the trustees, in their discretion, for the government and discipline of such schools, and prescribing the course of instruction therein. Confining our opinion strictly to the case in hand, we will consider and decide these two questions, in the order of their statement, namely: (1) Has the appellant’s relator shown, by the averments of his verified complaint, that the rule or regulation for the government of the pupils of the high school, in the school city of La Porte, of which he
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complains, was or is an unreasonable exercise of the discretionary power conferred by law upon the trustees of such school corporation and the superintendent of its schools? (2) Conceding or assuming such rule or regulation to be reasonable and valid, has the relator shown, in his complaint herein, any sufficient or satisfactory excuse for the noncompliance therewith, and the disobedience thereof, of his son, Abram Andrew, a pupil of such high school, or any sufficient or legal ground for the revocation of the suspension of his son, or for his son’s readmission, as a pupil in such high school? As to the first of these questions . . . we think that the legislature has given the trustees of the public school corporations the discretionary power to direct, from time to time, what branches of learning, in addition to those specified in the statute, shall be taught in the public schools of their respective corporations. Where such trustees may have established a system of graded schools, or such modifications of them as may be practicable, within their respective corporations, they are clothed by law with the discretionary power to prescribe the course of instruction in the different grades of their public schools. We are of opinion that the rule or regulation of which the relator complains in the case under consideration was within the discretionary power conferred by law upon the governing authorities of the school city of La Porte; that it was not an unreasonable rule; but that it was such a one as each pupil of the high school, in the absence of sufficient excuse, might lawfully be required to obey and comply with. . . . . . . The only cause or reason assigned by the relator for requiring his son to disobey such rule or regulation was that he did not believe it was for the best interest of his son to participate in the musical studies and exercises of the high school, and did not wish him to do so. The relator has assigned no cause or reason, and it may be fairly assumed that he had none, in support either of his belief or his wish. The important question arises: Which should govern the public high school of the city of La Porte as to the branches of learning to be taught and the course of instruction therein—the school trustees of such city to whom the law has confided the direction of these matters, or the mere arbitrary will of the relator without cause or reason in its
support? We are of opinion that only one answer can or ought to be given to this question. The arbitrary wishes of the relator in the premises must yield and be subordinated to the governing authorities of the school city of La Porte, and their reasonable rules and regulations for the government of the pupils of its high school. . . . For the reasons given, our conclusion is that no error was committed by the court below in sustaining appellees’ demurrer to the relator’s complaint. The judgment is affirmed, with costs.
Denial of Promotion for Failure to Complete Requisite Reading Level Does Not Violate Constitutional Rights
Sandlin v. Johnson United States Court of Appeals, Fourth Circuit, 1981. 643 F.2d 1027.
MURNAGHAN, Circuit Judge. Four second-grade students filed the case as a class action on behalf of themselves and eighteen other similarly situated second graders against the principal of their school, and the superintendent of schools and school board of Pittsylvania County, Virginia. Plaintiffs attended the Whitmell Elementary School. Only one member of their class was promoted to the third grade at the end of the 1977–1978 school year. The stated and undisputed ground for denial of promotion was the students’ failure to complete the requisite level of the Ginn Reading Series. While plaintiffs do not deny that they failed to demonstrate the required reading level, they argue that they are nevertheless capable of reading at the third-grade level. They sued pursuant to 42 U.S.C. § 1983 claiming a denial of equal protection of the law because, as their Complaint had it: By either the defendants’ negligent and careless supervision of the instruction of plaintiffs or by their arbitrary and negligent grading and classification of these plaintiffs, plaintiffs have been effectively
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Judicial Deference to School Officials denied third-grade educational opportunities commensurate with their abilities and in accord with educational opportunities provided other students similarly situated in the Pittsylvania County School System.
Plaintiffs contended that defendants’ actions damaged them by delaying the completion of their education and their obtaining employment, by foreclosing “certain lucrative employment . . . because of a lack of education provided them commensurate with their abilities,” and by burdening them with the stigma of failure. . . . Defendants responded that they had provided equal opportunities to plaintiffs, that while plaintiffs’ intelligence was such that they were capable of reading at the third-grade level, they had failed to progress to that level of mastery, and that promoting plaintiffs before they had mastered the requisite reading skills would be counterproductive and would increase plaintiffs’ reading deficiencies. . . . There is no allegation in the case that plaintiffs were classified on the basis of race or any other basis calling for heightened scrutiny, i.e., religious affiliation, alienage, illegitimacy, gender or wealth. Nor is public education a fundamental right which would trigger strict scrutiny of claims of denial of equal protection. Thus, in reviewing the equal protection claim, the only question, as recognized by all parties, is whether the classification by the governmental entity which is at issue here is rationally related to a permissible governmental end. Defendants here classified plaintiffs according to their attained reading level. The stated purpose for the classification was to enable the school to provide students with the level of instruction most appropriate to their abilities and needs. The objective was to further the education, the preparation for life of the plaintiffs. The governmental end is a permissible one, and defendants’ classification scheme is clearly rationally related to achieving it. Defendants, therefore, have not implicated any constitutional right of plaintiffs by classifying them according to their reading level. Plaintiffs also claim that defendants or the teachers under their supervision negligently and carelessly failed to ensure that plaintiffs were properly and appropriately taught. What appellants denominate a denial of equal educational opportunity sounds rather in tort as a breach of some
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duty owed by teachers or school boards to their pupils to give them an education. If there is any such cause of action, it does not rise to the level of a constitutional claim and, therefore, is not cognizable in an action pursuant to 42 U.S.C. § 1983. . . . Decisions by educational authorities which turn on evaluation of the academic performance of a student as it relates to promotion are peculiarly within the expertise of educators and are particularly inappropriate for review in a judicial context. (“We decline to further enlarge the judicial presence in the academic community and thereby risk deterioration of many beneficial aspects of the faculty-student relationship.”) We, therefore, affirm the district court’s dismissal. Affirmed. (Held for the school superintendant and the school board.)
Statute Prohibiting Teaching of Foreign Language Violates Substantive Due Process
Meyer v. Nebraska Supreme Court of the United States, 1923. 262 U.S. 390, 43 S. Ct. 625.
Mr. Justice McREYNOLDS delivered the opinion of the Court. Plaintiff . . . was tried and convicted in the district court for Hamilton County, Nebraska, under an information which charged that on May 25, 1920, while an instructor in Zion Parochial School he unlawfully taught the subject of reading in the German language to Raymond Parpart, a child of ten years, who had not attained and successfully passed the eighth grade. The information is based upon “An act relating to the teaching of foreign languages in the state of Nebraska,” approved April 9, 1919 (Laws 1919, c. 249), which follows: Section 1. No person, individually or as a teacher, shall, in any private, denominational, parochial or public school, teach any subject to any person in any language other than the English language. Sec. 2. Languages other than the English language may be taught as languages only after a pupil shall
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have attained and successfully passed the eighth grade as evidenced by a certificate of graduation issued by the county superintendent of the county in which the child resides.
. . . The Supreme Court of the state affirmed the judgment of conviction. It declared the offense charged and established was “the direct and intentional teaching of the German language as a distinct subject to a child who had not passed the eighth grade,” in the parochial school maintained by Zion Evangelical Lutheran Congregation, a collection of Biblical stories being used therefore. And it held that the statute forbidding this did not conflict with the Fourteenth Amendment, but was a valid exercise of the police power. The following excerpts from the opinion sufficiently indicate the reasons advanced to support the conclusion. The salutary purpose of the statute is clear. The Legislature had seen the baneful effects of permitting foreigners, who had taken residence in this country, to rear and educate their children in the language of their native land. The result of that condition was found to be inimical to our own safety. To allow the children of foreigners, who had emigrated here, to be taught from early childhood the language of the country of their parents was to rear them with that language as their mother tongue. It was to educate them so that they must always think in that language, and, as a consequence, naturally inculcate in them the ideas and sentiments foreign to the best interests of this country. The statute, therefore, was intended not only to require that the education of all children be conducted in the English language, but that, until they had grown into that language and until it had become a part of them, they should not in the schools be taught any other language. The obvious purpose of the statute was that the English language should be and become the mother tongue of all children reared in this state. The enactment of such a statute comes reasonably within the police power of the state. . . .
. . . The problem for our determination is whether the statute as construed and applied unreasonably infringes the liberty guaranteed to the plaintiff in error by the Fourteenth Amendment. “No state . . . shall deprive any person of life, liberty or property without due process of law.” While this court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely
freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. . . . The established doctrine is that this liberty may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the state to effect. Determination by the Legislature of what constitutes proper exercise of police power is not final or conclusive but is subject to supervision by the courts. . . . The American people have always regarded education and acquisition of knowledge as matters of supreme importance which should be diligently promoted. The Ordinance of 1787 declares: “Religion, morality and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” Corresponding to the right of control, it is the natural duty of the parent to give his children education suitable to their station in life; and nearly all the states, including Nebraska, enforce this obligation by compulsory laws. Practically, education of the young is only possible in schools conducted by especially qualified persons who devote themselves thereto. . . . Mere knowledge of the German language cannot reasonably be regarded as harmful. Heretofore it has been commonly looked upon as helpful and desirable. Plaintiff in error taught this language in school as part of his occupation. His right thus to teach and the right of parents to engage him so to instruct their children, we think, is within the liberty of the amendment. . . . That the state may do much, go very far, indeed, in order to improve the quality of its citizens, physically, mentally and morally, is clear; but the individual has certain fundamental rights which must be respected. The protection of the Constitution extends to all, to those who speak other languages as well as to those born with English on the tongue. Perhaps it would be highly advantageous if all had ready understanding of our ordinary speech, but this cannot
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Judicial Deference to School Officials
be coerced by methods which conflict with the Constitution—a desirable end cannot be promoted by prohibited means. . . . The power of the State to compel attendance at some school and to make reasonable regulations for all schools, including a requirement that they shall be given instructions in English, is not questioned. Nor has challenge been made of the State’s power to prescribe a curriculum for institutions which it supports. Those matters are not within the present controversy. Our concern is with the prohibition approved by the Supreme Court. Adams v. Tanner, 244 U.S. 594, 37 S. Ct. 662, pointed out that mere abuse incident to an occupation ordinarily useful is not enough to justify its abolition, although regulation may be entirely proper. No emergency has arisen which renders knowledge by a child of some language other than English so clearly harmful as to justify its inhibition with the consequent infringement of rights long freely enjoyed. We are constrained to conclude that the statute as applied is arbitrary and without reasonable relation to any end within the competency of the State. As the statute undertakes to interfere only with teaching which involves a modern language, leaving complete freedom as to other matters, there seems no adequate foundation for the suggestion that the purpose was to protect the child’s health by limiting his mental activities. It is well known that proficiency in a foreign language seldom comes to one not instructed at an early age, and experience shows that this is not injurious to the health, morals or understanding of the ordinary child. The judgment of the court below must be reversed and the cause remanded for further proceedings not inconsistent with this opinion. Reversed.
CASE NOTE Meyer, along with the Pierce case in Chapter 6 of this text, both indicate the primacy of the parents in “the custody, care, and nurture” of their own children. But this right over the child does not give the parent a license to restrict or control what is offered in the public school curriculum to other children. The U.S. Court of Appeals, First Circuit, in a 1995 decision, explained the limits of parental rights in this way:
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The Meyer and Pierce cases, we think, evince the principle that the state cannot prevent parents from choosing a specific educational program—whether it be religious instruction at a private school or instruction in a foreign language. That is, the state does not have the power to “standardize its children” or “foster a homogenous people” by completely foreclosing the opportunity of individuals and groups to choose a different path of education. We do not think, however, that this freedom encompasses a fundamental constitutional right to dictate the curriculum at the public school to which they have chosen to send their children. We think it is fundamentally different for the state to say to a parent, “You can’t teach your child German or send him to a parochial school,” than for the parent to say to the state, “You can’t teach my child subjects that are morally offensive to me.” The first instance involves the state proscribing parents from educating their children, while the second involves parents prescribing what the state shall teach their children. If all parents had a fundamental constitutional right to dictate individually what the schools teach their children, the schools would be forced to cater a curriculum for each student whose parents had genuine moral disagreements with the school’s choice of subject matter. We cannot see that the Constitution imposes such a burden on state educational systems, and accordingly find that the rights of parents as described by Meyer and Pierce do not encompass a broad-based right to restrict the flow of information in the public schools. Brown v. Hot, Sexy and Safer Productions, Inc., 68 F.3d 525, 533 (1st Cir. 1995).
Mandatory Community Service as a Graduation Requirement Does Not Violate Students’ Constitutional Rights
Immediato v. Rye Neck School District United States Court of Appeals, Second Circuit, 1996. 73 F.3d 454.
McLAUGHLIN, Circuit Judge. Daniel Immediato is a high school student in the Rye Neck (N.Y.) School District (the “District”). He and his parents (together, the
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“plaintiffs”) brought an action pursuant to 42 U.S.C. § 1983 against the District, . . . in the United States District Court . . . alleging that the District’s mandatory community service program (the “program”) violated their constitutional rights. The plaintiffs argued that the mandatory community service program violated: (1) Daniel’s Thirteenth Amendment rights; (2) the parents’ Fourteenth Amendment rights; and (3) Daniel’s Fourteenth Amendment rights. The plaintiffs requested declaratory and injunctive relief. The district court granted summary judgment for the defendants (School Board). Plaintiffs now appeal, renewing the arguments raised below. We hold that the District’s mandatory community service program does not violate the plaintiffs’ constitutional rights, and thus affirm the judgment of the district court. . . . . . . In 1990, the District instituted a mandatory community service program as part of the high school curriculum. Under the program, in order to earn their diplomas, all students must complete forty hours of community service sometime during their four high school years. They must also participate in a corresponding classroom discussion about their service. The program has no exceptions or “opt-out” provisions for students who object to performing community service. There are rules regarding the organizations to which the students may donate their services, and the nature of the work they may perform. . . . Within the boundaries of these rules, the students have a large degree of latitude to choose their organizations. Students, for example, may work for not-for-profit corporations, charities, political organizations or public agencies. . . . Student proposals must win the approval of the school, but approval is almost always granted. . . . Students may also provide their services to religiously-affiliated institutions, so long as the students’ work involves charitable assistance, and not merely promotion of the religion or organization. For example, students may assist a church in feeding or housing the homeless, but will not receive credit for proselytizing. . . . As part of a required senior-year course (“Managing Your Future”), students must complete a short form documenting and summarizing their community service. . . . The form does not ask why they chose the particular organization or whether they agreed with its goals. After
completing the form, the students discuss their service with the teacher and other students. This discussion is limited to the information on the form. The program is graded on a pass-fail basis, and students are required to meet certain benchmarks (e.g., 10 hours) by the end of each quarter of their senior year to pass. Daniel Immediato, a student at the District’s high school, objects to the mandatory community service program. He believes that charitable activities and community service, while admirable, must be left to an individual’s conscience, and should not be mandated by the school. He also desires to keep private any information about what community service he does or does not perform. Daniel’s parents, co-plaintiffs, concede that community service is rewarding, but maintain that it must remain a matter of individual choice. They have tried to instill these values in Daniel, but fear that the school’s mandatory community service program will instead teach him that guidance on moral issues should come from the government, rather than from within. . . . Plaintiffs argue that, because the mandatory community service program “requires students to serve others” or forfeit a high school diploma, the program constitutes involuntary servitude. We disagree. The Thirteenth Amendment provides: Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
. . . The dispositive question, then, is whether the mandatory community service program rises to the level of “involuntary servitude” contemplated by the amendment. The Supreme Court has conceded that, “[w]hile the general spirit of the phrase ‘involuntary servitude’ is easily comprehended, the exact range of conditions it prohibits is harder to define.” . . . The Supreme Court has observed, however, that “the phrase ‘involuntary servitude’ was intended ‘to cover those forms of compulsory labor akin to African slavery which in practical operation would tend to produce like undesirable results.’” . . . We have added that the ban on involuntary servitude “was to abolish all practices whereby subjection having some of the incidents of slavery was legally enforced. . . .”
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Judicial Deference to School Officials
In application, courts have consistently found the involuntary servitude standard is not so rigorous as to prohibit all forms of labor that one person is compelled to perform for the benefit of another. The Thirteenth Amendment does not bar labor that an individual may, at least in some sense, choose not to perform, even where the consequences of that choice are “exceedingly bad.” . . . For example, a state may require an attorney to work pro bono. . . . The government may also require the performance of “civic duties” such as military service, . . . and upkeep of local public roads, . . . without trenching upon the Thirteenth Amendment. . . . Taking a contextual approach, we have no trouble concluding that the mandatory community service program does not amount to involuntary servitude in the constitutional sense. The work required is not severe: students must perform only forty hours of service in four years. Furthermore, the nature of the work required and conditions under which it must be performed are hardly onerous. Students may choose among a nearly infinite variety of organizations offering a kaleidoscope of service activities. They are free to arrange their own work schedules, and to work in the summers when other school-related duties are minimal. It is important to note that the purpose of the program is not exploitative. Rather, it is educational, particularly when coupled with the related classroom discussions. Finally, the level of coercion is not so high as to compel a finding of involuntary servitude. Although students who forego their required service will not graduate, they may avoid the program and its penalties by attending private school, transferring to another public high school, or studying at home to achieve a high school equivalency certificate. While these choices may be economically or psychologically painful, choices they are, nonetheless. They might not render the program voluntary, but they contribute to the conclusion that it is not involuntary servitude. Considering all these factors, we find that the program is not constitutionally infirm. That is not to say that any and every service program that a public school district may devise would survive constitutional scrutiny. If, for instance, the students were required to spend their Saturdays at the homes of their teachers, washing
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their cars, painting their houses, and weeding their gardens, the extent, nature, and conditions of “service,” and the more obviously exploitative purpose of the program, might indeed warrant a finding of “involuntary servitude.” But this is not our case. Because we conclude that the mandatory community service program is not, on the whole, “compulsory labor” which, “in practical operation” produces “undesirable results” analogous to slavery, . . . we hold that the District’s mandatory community service program does not constitute impermissible involuntary servitude. Plaintiffs also argue that the program violates both Daniel’s and his parents’ rights under the Due Process Clause of the Fourteenth Amendment. Again, we disagree. Our analysis begins with the proposition that the Due Process Clause of the Fourteenth Amendment embodies a substantive component that protects against “certain government actions regardless of the fairness of the procedures used to implement them.” . . . This “substantive due process,” as it has come to be known, however, does not stand as a bar to all governmental regulations that may in some sense implicate a plaintiff’s “liberty.” Rather, the level of scrutiny with which we will examine a governmental regulation turns on the nature of the right at issue. When the right infringed is “fundamental,” the governmental regulation must be “narrowly tailored to serve a compelling state interest.” . . . Rights are fundamental when they are “implicit in the concept of ordered liberty,” . . . or “deeply rooted in this Nation’s history and tradition.” . . . Where the claimed right is not fundamental, the governmental regulation need only be reasonably related to a legitimate state objective. . . . Plaintiffs argue for a “constitutional right of parents to have primary responsibility over the upbringing and education of their children,” and they contend that such a right is sufficiently basic and traditional to warrant strict scrutiny. From these two propositions plaintiffs ask us to conclude that parents have a fundamental constitutional right to exempt their children from educational requirements to which they object on secular grounds. . . . Parents, of course, have a liberty interest, properly cognizable under the Fourteenth Amendment, in the upbringing of their children. . . .
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Wisconsin v. Yoder. . . . The Supreme Court, however, has never expressly indicated whether this “parental right,” when properly invoked against a state regulation, is fundamental, deserving strict scrutiny, or earns only a rational basis review. Our reading of the appropriate case law convinces us that rational basis review is appropriate. In Meyer v. Nebraska, . . . the Supreme Court faced a challenge to a state law forbidding schools from teaching foreign languages to students below the eighth grade. The Court held the law unconstitutional as applied, stating that it was “arbitrary and without reasonable relation to any end within the competency of the State.” . . . Similarly, in Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary, . . . the Court struck down a state law requiring parents to send their children aged 8–16 to public school only (and making it a misdemeanor to send them to private school). The Court, tracking its language from Meyer, found that the statute had “no reasonable relation to some purpose within the competency of the State.” . . . More recently, in Wisconsin v. Yoder, . . . Amish plaintiffs argued that mandatory school attendance beyond the eighth grade violated their rights under the First Amendment’s Religion Clauses. Finding for the plaintiffs, the Court was careful to focus upon the religious nature of their claims, observing in contrast that “[a] way of life, however virtuous and admirable, may not be interposed as a barrier to reasonable state regulation of education if it is based on purely secular considerations.” . . . Thus, while parents have definite rights over their children’s education, “they have no constitutional right to provide their children with . . . education unfettered by reasonable government regulation.” . . . Reviewing these cases and others, we have observed that “[t]here is a long line of precedents indicating that the government may not unreasonably interfere with . . . [the right to] raise one’s children as one wishes.” . . . Other circuits, analyzing state-imposed educational requirements, have expressly applied the rational basis standard when reviewing a parent’s claimed right to control the upbringing of their child. . . . We thus conclude that where, as here, parents seek for secular reasons to exempt their child from an educational requirement and the basis is
a claimed right to direct the “upbringing” of their child, rational basis review applies. We are aware that Daniel’s parents object because of their “values” or “morals,” as opposed to a general objection to the educational wisdom of the program, but we do not find this difference to be of constitutional significance. While the Constitution does indeed distinguish between religious objections and secular objections, . . . it makes no similar distinctions among purely secular objections based on values, morals, or other firmly held beliefs. . . . The District’s mandatory community service program easily meets the rational basis test. Education is unquestionably a legitimate state interest. . . . Indeed, the Supreme Court has indicated that the state has a “compelling” interest in educating its youth, to prepare them both “to participate effectively and intelligently in our open political system,” and “to be self-reliant and selfsufficient participants in society.” . . . The state’s interest in education extends to teaching students the values and habits of good citizenship, and introducing them to their social responsibilities as citizens. . . . Furthermore, the mandatory community service program rationally furthers this state objective. The District reasonably concluded that the mandatory community service program would expose students to the needs of their communities and to the various ways in which a democratic system of volunteerism can respond to those needs. In doing so, the program helps students recognize their place in their communities, and, ideally, inspires them to introspection regarding their larger role in our political system. The program may also help students develop a connection between school and work, and give students an opportunity to evaluate possible careers. The District was also reasonable in concluding that these goals were best achieved by having students actually perform service for a limited amount of time, and discuss that service, as opposed to merely reading about service opportunities. Indeed, the program’s focus on learning-by-doing may be crucial in imparting the lessons of the service program. Because the District’s mandatory community service program is reasonably related to the state’s legitimate function of educating its students, we hold that the program does not violate Daniel’s parents’ Fourteenth Amendment rights. . . .
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Judicial Deference to School Officials
Plaintiffs also argue that the mandatory community service program violates Daniel’s rights under the Fourteenth Amendment. Specifically, they allege that the program violates his rights to: (1) personal liberty; and (2) privacy. Having concluded that the program meets a rational basis review, we need change our analysis only if the substantive due process rights asserted by Daniel are “fundamental,” and thus require more exacting scrutiny. We find that they do not. First, Daniel’s claim that the program violates his right to “personal liberty” does little more than parrot the language of the Fourteenth Amendment. Although substantive due process rights are guaranteed to an individual, in part, through the liberty component of the Due Process Clause, . . . this does not mean that a fundamental right is implicated every time a governmental regulation intrudes on an individual’s “liberty.” Rather, as mentioned above, strict scrutiny is reserved only for those governmental regulations that implicate personal freedoms “implicit in the concept of ordered liberty.” . . . Plaintiffs argue that the choice of when and whether to serve others “has always been left to individual conscience and belief.” However, they cite not a single case in which this “individual choice” has been declared a fundamental right, or has warranted strict scrutiny of a governmental regulation. In light of the Supreme Court’s recent admonition that we should be “reluctant to expand the concept of substantive due process,” . . . we decline plaintiffs’ invitation to be the first court to so hold. Daniel’s choice as to how to spend his free time, and whether or not he will perform any volunteer services, is not the stuff to which strict scrutiny is devoted. Daniel’s proffered right of privacy fares no better. Plaintiffs claim that, by obliging students to disclose the organization for which they volunteered, the program unconstitutionally compels the students to disclose “personal information” protected by the Fourteenth Amendment. It does no such thing. Initially, we doubt that the program questionnaire and subsequent classroom discussion implicate any constitutional privacy right or interest. Daniel may choose his service organization from a broad array of organizations, some political or religious, and others clearly neutral. If he does not wish to disclose deeply held political
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or religious beliefs, he can simply choose one of the secular, non-partisan organizations. And even if Daniel chooses a political or religious organization, he is not required to state why he chose that group, or whether or not he agrees with its goals and aims, but only what he did and what he learned from the experience. Nor does the program effectively chill Daniel’s ability to join organizations of his own choosing in a private setting. Daniel is not required to disclose every organization for which he volunteers, but only that organization he chooses for his credit toward forty hours of community service. Daniel is free, on his own time and of his own volition, to serve any organization he likes, without having to tell anyone about it. True, Daniel may be tempted to choose a neutral organization over another preferred organization for those forty hours. But this is not so profound a burden as to raise significant constitutional concerns. Even if Daniel does state a privacy interest cognizable under the Fourteenth Amendment, we find that the required disclosure as part of the program passes constitutional muster. . . . Because the program furthers the state’s significant interest in education, and requires the disclosure of minimal (if any) personal information, in the limited setting of the forty-hour service requirement, it is, on balance, easily constitutional. . . . We have considered all of plaintiffs’ arguments, and find them to be without merit. Accordingly, the judgment of the district court is affirmed.
CASE NOTES 1. Community Service. In Immediato, the U.S. Court of Appeals, Second Circuit, agreed with the Third Circuit decision in Steirer ex rel. Steirer v. Bethlehem Area School District, 987 F.2d 989 (3rd Cir. 1993) that a mandatory community service program does not violate either students’ or parents’ rights of speech, expression, or free exercise of religion guaranteed by the First and Fourteenth Amendments. Neither does such a program offend the involuntary servitude provision of the Thirteenth Amendment. With regard to the claim of the plaintiff alleging involuntary servitude, the Third Circuit said: There is no basis in fact or logic which would support analogizing a mandatory community service program in a public high school to slavery. . . . An
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educational requirement does not become involuntary servitude merely because one of the stated objectives of the Program is that the students will work “without receiving pay” . . .
2. Involuntary Servitude. A Hawaii federal district court ruled that a state regulation requiring children in public schools to work in the school cafeteria did not constitute involuntary servitude because “the public, and not private, interest and benefit are being served.” Bobilin v. Board of Education, 403 F. Supp. 1095 (D. Haw. 1975).
The School Board Has Legitimate Pedagogical Interest in Curriculum
Boring v. Buncombe County Board of Education United States Court of Appeals, Fourth Circuit, 1998. 136 F.3d 364.
WIDENER, Circuit Judge. The only issue in this case is whether a public high school teacher has a First Amendment right to participate in the makeup of the school curriculum through the selection and production of a play. . . . Margaret Boring was a teacher in the Charles D. Owen High School in Buncombe County, North Carolina. In the fall of 1991, she chose the play Independence for four students in her advanced acting class to perform in an annual statewide competition. She stated in her amended complaint that the play “powerfully depicts the dynamics within a dysfunctional, single-parent family—a divorced mother and three daughters; one a lesbian, another pregnant with an illegitimate child.” She alleged that after selecting the play, she notified the school principal, as she did every year, that she had chosen Independence as the play for the competition. She does not allege that she gave the principal any information about the play other than the name. The play was performed in a regional competition and won 17 of 21 awards. Prior to the
state finals, a scene from the play was performed for an English class in the school. Plaintiff [Boring] informed the teacher of [the English] class that the play contained mature subject matter and suggested to the teacher that the students bring in parental permission slips to see the play. Following that performance, a parent of one of the students in the English class complained to the school principal, Fred Ivey, who then asked plaintiff for a copy of the script. After reading the play, Ivey informed plaintiff that she and the students would not be permitted to perform the play in the state competition. Plaintiff and the parents of the actresses performing the play met with Ivey urging him not to cancel the production. Ivey then agreed to the production of the play in the state competition, but with certain portions deleted. The complaint states that the students performed the play in the state competition and won second place. . . . In June 1992, Ivey requested the transfer of Margaret Boring from Owen High School, citing “personal conflicts resulting from actions she initiated during the course of this school year.” Superintendent Yeager approved the transfer stating that she had failed to follow the school system’s controversial materials policy in producing the play. Plaintiff states that the purpose of the controversial materials policy is to give the parents some control over the materials to which their children are exposed in school. She alleges that at the time of the production, the controversial materials policy did not cover dramatic presentations, and that the school’s policy was amended subsequently to include dramatic presentations. Plaintiff appealed the transfer to the Board of Education. A hearing was held on September 2, 1992, following which the Board upheld the transfer. Plaintiff alleges that prior to the hearing there was considerable public discussion of the transfer, including that the play was obscene and that she was immoral. She alleges that members of the school board asked questions at the hearing that demonstrated their consideration of matters outside the evidence presented at the hearing. Plaintiff filed the present action on January 10, 1994. Her amended complaint claims that her transfer was in retaliation for expression of unpopular views through the production of the play
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Judicial Deference to School Officials
and thus in violation of her right to freedom of speech under the First and Fourteenth Amendments. . . . She also claimed a violation of due process under the Fourteenth Amendment . . . based on the allegation that members of the school board considered information that was not presented at the hearing; and a violation of a liberty interest under Article I, § 1. . . . The district court construed the complaint broadly. Not only did it address plaintiff’s federal First Amendment claim, it considered claims plaintiff may have made under the federal due process clause of the Fourteenth Amendment; a federal liberty interest claim under the Fourteenth Amendment; . . . It decided against the plaintiff on each of these claims. Plaintiff appeals only the dismissal of her federal First Amendment claim. A divided panel of this court reversed the district court’s dismissal of that claim which decision was vacated by the order of the en banc court which granted rehearing. . . . We now affirm the judgment of the district court holding that the plaintiff’s selection and production of the play Independence as part of the school’s curriculum was not protected speech under the First Amendment. . . . The district court held that the play was a part of the school curriculum and since plaintiff has not engaged in protected speech, her transfer in retaliation for the play’s production did not violate constitutional standards. We begin our discussion with the definition of curriculum [to wit]: all planned school activities including besides courses of study, organized play, athletics, dramatics, clubs, and homeroom program. . . . Not only does Webster include dramatics within the definition of curriculum, the Supreme Court does the same. In Hazelwood School District v. Kuhlmeier, the reasoning of the Court as to what constitutes the school curriculum is equally applicable here. The latter question concerns educators’ authority over school-sponsored publications, theatrical productions, and other expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school. These activities may fairly be characterized as part of the school curriculum, whether or not they occur in a traditional classroom setting, so long as they are supervised by faculty members and designed to impart
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particular knowledge or skills to student participants and audiences. . . . It is plain that the play was curricular from the fact that it was supervised by a faculty member, Mrs. Boring; it was performed in interscholastic drama competitions; and the theater program at the high school was obviously intended to impart particular skills, such as acting, to student participants. These factors demonstrate beyond doubt that “students, parents, and members of the public might reasonably perceive [the production of the play Independence] to bear the imprimatur of the school.” . . . So there is no difference between Webster’s common definition and that of Hazelwood. With these thoughts in mind, we are of opinion that the judgment of the district court is demonstrably correct. Plaintiff’s selection of the play Independence, and the editing of the play by the principal, who was upheld by the superintendent of schools, does not present a matter of public concern and is nothing more than an ordinary employment dispute. That being so, plaintiff has no First Amendment rights derived from her selection of the play Independence. . . . Since plaintiff’s dispute with the principal, superintendent of schools and the school board is nothing more than an ordinary employment dispute, it does not constitute protected speech and has no First Amendment protection. . . . The plaintiff also contends that the district court erred in holding that the defendants had a legitimate pedagogical interest in punishing plaintiff for her speech. Of course, by speech, she means her selection and production of the play Independence. As we have previously set out, the play was a part of the curriculum of Charles D. Owen High School, where plaintiff taught. So this contention of the plaintiff is in reality not different from her first contention, that is, she had a First Amendment right to participate in the makeup of the high school curriculum, which could be regulated by the school administration only if it had a legitimate pedagogical interest in the curriculum. While we are of opinion that plaintiff had no First Amendment right to insist on the makeup of the curriculum, even assuming that she did have, we are of opinion that the school administration did have such a legitimate pedagogical interest and that the holding of the district court was correct. . . . There is no doubt
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at all that the selection of the play Independence was a part of the curriculum of Owen High School. The makeup of the curriculum of Owen High School is by definition a legitimate pedagogical concern. . . . If the performance of a play under the auspices of a school and which is a part of the curriculum of the school, is not by definition a legitimate pedagogical concern, we do not know what could be. In our opinion, the school administrative authorities had a legitimate pedagogical interest in the makeup of the curriculum of the school, including the inclusion of the play Independence. The holding of the district court was correct and the plaintiff’s claim is without merit. The question before us is not new. From Plato [and] the greatest minds of Western civilization have acknowledged the importance of the very subject at hand and have agreed on how it should be treated. For a young person cannot judge what is allegorical and what is literal; anything that he receives into his mind at that age is likely to become indelible and unalterable; and therefore it is most important that the tales which the young first hear should be models of virtuous thoughts. And Justice Frankfurter, . . . related the four essential freedoms of a university, which should no less obtain in public schools unless quite impracticable or contrary to law: It is an atmosphere in which there prevail “the four essential freedoms” of a university—to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study. We agree with Plato . . . and Justice Frankfurter that the school, not the teacher, has the right to fix the curriculum. Owens being a public school does not give the plaintiff any First Amendment right to fix the curriculum she would not have had if the school were private. . . . Someone must fix the curriculum of any school, public or private. In the case of a public school, in our opinion, it is far better public policy, absent a valid statutory directive on the subject, that the makeup of the curriculum be entrusted to the local school authorities who are in some sense responsible, rather than to the teachers, who would be responsible only to the judges, had they a First Amendment right to participate in the makeup of the curriculum. The judgment of the district court is accordingly affirmed.
CASE NOTE Buncombe County, North Carolina, has a history of censorship of school books and activities. In 1973, a school board member in Buncombe County decided to remove books from the high school library, claiming they were simply “unsuitable.” She introduced a resolution to the school board to “expunge ‘unsuitable’” books from school libraries. Her efforts were supported by the Christian Action League and Answer for America. Later in 1981, another controversy erupted when a group of citizens, led by a group of fundamentalist ministers, labeled a list of books obscene. This highly publicized battle engaged the North Carolina Association of Educators and the North Carolina Department of Public Instruction against the attempt to censor the books. As Karolides, Bald, and Sova report the incident in 100 Banned Books, the person who gained the greatest accolades and respect was a minister named Fred Ohler who stepped forward against the book censorship and said, “Why is immorality seen only as profanity and sexuality in Steinbeck, Salinger or Kantor and the larger issues of grinding poverty and social misjustice, of adult hypocrisy, of war camp atrocities never faced,” and with direct reference to the list of books proposed to be censored, he said further, “To read the Bible as some folks read The Grapes of Wrath would be like going through the Gospels and only seeing the tax collectors, wine-bibers, and Mary Magdalene.” The challengers to the books were ultimately defeated. See Nicholas J. Karolides, Margaret Bald, and Dawn B. Sova, 100 Banned Books: Censorship Histories of World Literature (New York: Checkmark Books, 1999), p. 11.
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Curriculum and the Pall of Orthodoxy
The Supreme Court has said that the courts should not intervene in conflicts that arise in the daily operation of the schools, so long as the conflicts do not involve basic constitutional values. However, the courts will not “tolerate laws which cast a pall of orthodoxy over the classroom.”23 The Supreme Court stated in Sweezy v. New Hampshire:24 Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must
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Curriculum and the Pall of Orthodoxy always remain free to inquire, to study and to evaluate. . . . [The state cannot] chill that free play of the spirit which all teachers ought especially to cultivate and practice.25
Since the beginning of the public schools, the nature and content of the curriculum have been subject to continuing and perplexing debate. As observed elsewhere in this book, one of the primary obstacles that faced early public school reformers was the formulation of a commonly accepted curriculum that would not unduly advance any particularized or specialized interest to the exclusion of others. Early experience found that the most difficult of such interests to overcome had to do with religious sectarianism and the hundreds of beliefs that touched on human values, morality, and ethics. A public school system that did not advance the cause of a particular group quickly encountered discord and conflict as a result. Cognizant of this problem, the early public school leaders sought to build a nonsectarian common school curriculum that would not be offensive to any particular religious view or sectarian viewpoint. In this pursuit, the public schools have been condemned by conservative religious groups for being ungodly or irreligious. Such groups, too, have sought to impose their beliefs on the public schools in an attempt to make their particular views the official policy of the state. This has not materially changed over the years, for it was this same issue that led to vigorous opposition to public schools initially. Butts and Cremin noted that what Horace Mann’s “attackers were urging was not that religion, ethics and morals be taught in the schools, but that their particular sectarian doctrines be taught.”26 In his concurring opinion in People ex rel. McCollum v. Board of Education, Justice Jackson observed: [A]uthorities list 256 separate and substantial religious bodies to exist in the United States. Each of them . . . has as good a right (as any other) to demand that the courts compel the schools to sift out of their teaching everything that is objectionable to any of these warring sects or inconsistent with any of their doctrine. If we are to eliminate everything that is objectionable to any of these warring sects or inconsistent with any of their doctrines, we will leave public education in shreds.27
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To identify and avoid all such conflicts was difficult, if not impossible. Fortunately though, the tenacity with which most sects imposed their particular tenets on the public varied considerably, allowing for some considerable flexibility. Butts and Cremin have noted that: So long as each religious sect held firmly and uncompromisingly to a set of specific religious doctrines in opposition to all other sects, the tendency would be to insist upon religious schools that taught those tenets and only those tenets. . . . It is entirely possible that if some kind of nonsectarian outlook in religion had not appeared, the rise of the public school open to all religious groups alike would not have been possible.28
Over the years, the intolerance for beliefs of others has, however, subsided very little, and the tendency for some sects to continue their objections to public schools is commonplace. There also has been a tendency for religious fundamentalism to ebb and flow in popular appeal over the years, making the imposition of particular sectarian beliefs more politically viable at certain times than at others. The attitudes of legislatures, school boards, and even the courts have sometimes reflected these popularized views. It is because of the great difficulty in accommodating these divisive forces that the public schools have sought to convey a general attitude of secular impartiality to the views of various sects. The courts have generally enforced the view that the public schools should deal with temporal matters and remain apart and separate from ecclesiastical affairs. The legal controversies that normally arise in this area generally involve some particular group seeking to impose a particular belief by restricting the school curriculum or demanding that certain textbooks, films, courses, or programs be excluded from the instructional program. In response, the courts have traditionally felt most comfortable upholding the expansion rather than the contraction of knowledge. In Board of Education v. Pico, 29 the Supreme Court reinforced the “pall of orthodoxy” rule by forbidding removal of books by the local school board that was responding to political pressure from a local group of conservative parents. The Court observed that the expansion of information and knowledge was the most desirable end
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to education policy and said, “the right to receive ideas is a necessary predicate to the recipient’s meaningful exercise of his own rights of speech, press, and political freedom.”30 The general precedent that the expansion of information and knowledge is paramount, and that even school boards’ actions will be invalidated if they impair the flow of ideas, was closely followed in 1982 by the U.S. Court of Appeals, Eighth Circuit, in Pratt v. Independent School District No. 831.31 Here, the court ruled that the school board’s removal of a film from the school library was constitutionally invalid because the “First Amendment precludes local authorities from imposing a ‘pall of orthodoxy’ on classroom instruction which implicates the state in propagation of a particular religious or ideological viewpoint.”32 A new judicial pattern has emerged that may suggest a possible retreat from the “pall of orthodoxy” rule. The present U.S. Supreme Court has indicated that it is willing to allow the final decision regarding the curriculum and the availability of books, films, and materials to reside fully within the prerogative of the local school board, even though there may be a resulting constriction on the flow of information and a possible diminution of knowledge. This position was implied by the Supreme Court in Hazelwood School District v. Kuhlmeier,33 in which the excision of two pages from a student newspaper was upheld because, as the Court said, such regulation is permissible so long as it is “reasonably related to legitimate pedagogical concerns.” 34 Such a standard of reasonableness is less definitive and gives the local school board greater flexibility in determining whether to restrict or expand the curriculum. In this case, the Supreme Court gave further justification for restriction of curriculum content by observing that “a school must be able to take into account the emotional maturity of the intended audience.”35 In following this precedent of giving greater latitude to local school boards in controlling (and possibly limiting) curriculum, books, and materials, the U.S. Court of Appeals, Eleventh Circuit, followed Kuhlmeier and upheld a school board’s action in removing material from the curriculum because the removal was related to “legitimate pedagogical concerns.”36
The new trend of the courts appears to place less emphasis on a broadly conceived standard that secures the expansion of knowledge and prevents the “casting of a pall of orthodoxy.” Instead, it allows more flexibility in allowing curriculum decisions to be made on the basis of local school board judgment and, possibly, local political pressure.
Local School Board May Not Remove Books from School Libraries Simply Because It Dislikes the Ideas Contained in the Books
Board of Education, Island Trees Union Free School District No. 26 v. Pico Supreme Court of the United States, 1982. 457 U.S. 853, 102 S. Ct. 2799.
Justice BRENNAN announced the judgment of the Court. . . . The principal question presented is whether the First Amendment imposes limitations upon the exercise by a local school board of its discretion to remove library books from high school and junior high school libraries. Petitioners are the Board of Education of the Island Trees Union Free School District No.s 26, in New York, and Richard Ahrens, Frank Martin, Christina Fasulo, Patrick Hughes, Richard Melchers, Richard Michaels, and Louis Nessim. When this suit was brought, Ahrens was the President of the Board, Martin was the Vice President, and the remaining petitioners were Board members. The Board is a state agency charged with responsibility for the operation and administration of the public schools within the Island Trees School District, including the Island Trees High School and Island Trees Memorial Junior High School. Respondents are Steven Pico, Jacqueline Gold, Glenn Yarris, Russell Rieger, and Paul Sochinski. When this suit was brought, Pico, Gold, Yarris, and Rieger were students at the High School, and Sochinski was a student at the Junior High School.
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Curriculum and the Pall of Orthodoxy
In September 1975, petitioners Ahrens, Martin, and Hughes attended a conference sponsored by Parents of New York United (PONYU), a politically conservative organization of parents concerned about education legislation in the State of New York. At the conference these petitioners obtained lists of books described by Ahrens as “objectionable,” and by Martin as “improper fare for school students.” It was later determined that the High School library contained nine of the listed books, and that another listed book was in the Junior High School library. [The nine books in the high school library were Slaughterhouse Five, by Kurt Vonnegut, Jr.; The Naked Ape, by Desmond Morris; Down These Mean Streets, by Piri Thomas; Best Short Stories of Negro Writers, edited by Langston Hughes; Go Ask Alice, of anonymous authorship; Laughing Boy, by Oliver LaFarge; Black Boy, by Richard Wright; A Hero Ain’t Nothin’ but a Sandwich, by Alice Childress; and Soul on Ice, by Eldridge Cleaver. The book in the junior high school library was A Reader for Writers, edited by Jerome Archer. Still another listed book, The Fixer, by Bernard Malamud, was found to be included in the curriculum of a twelfth grade literature course.] In February 1976, at a meeting with the superintendent of schools and the principals of the High School and Junior High School, the Board gave an “unofficial direction” that the listed books be removed from the library shelves and delivered to the Board’s offices, so that Board members could read them. When this directive was carried out, it became publicized, and the Board issued a press release justifying its action. It characterized the removed books as “anti-American, anti-Christian, antiSemitic, and just plain filthy,” and concluded that “It is our duty, our moral obligation, to protect the children in our schools from this moral danger as surely as from physical and medical dangers.” A short time later, the Board appointed a “Book Review Committee,” consisting of four Island Trees parents and four members of the Island Trees schools staff, to read the listed books and to recommend to the Board whether the books should be retained, taking into account the books’ “educational suitability,” “good taste,” “relevance,” and “appropriateness to age and grade level.” In July, the Committee made its final report to the Board, recommending that
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five of the listed books be retained [The Fixer, Laughing Boy, Black Boy, Go Ask Alice, and Best Short Stories of Negro Writers] and that two others be removed from the school libraries [The Naked Ape and Down These Mean Streets]. As for the remaining four books, the Committee could not agree on two [Soul on Ice and A Hero Ain’t Nothin’ but a Sandwich], took no position on one [A Reader for Writers]—the reason given for this disposition was that all members of the Committee had not been able to read the book, and recommended that the last book be made available to students only with parental approval [Slaughterhouse Five]. The Board substantially rejected the Committee’s report later that month, deciding that only one book should be returned to the High School library without restriction [Laughing Boy], that another should be made available subject to parental approval [Black Boy], but that the remaining nine books should “be removed from elementary and secondary libraries and [from] use in the curriculum.” [As a result, the nine removed books could not be assigned or suggested to students in connection with school work. However, teachers were not instructed to refrain from discussing the removed books or the ideas and positions expressed in them.] The Board gave no reasons for rejecting the recommendations of the Committee that it had appointed. Respondents reacted to the Board’s decision by bringing the present action. They alleged that petitioners had ordered the removal of the books from school libraries and proscribed their use in the curriculum because particular passages in the books offended their social, political and moral tastes and not because the books, taken as a whole, were lacking in educational value.
Respondents claimed that the Board’s actions denied them their rights under the First Amendment. They asked the court for a declaration that the Board’s actions were unconstitutional. . . . We emphasize at the outset the limited nature of the substantive question presented by the case before us. Our precedents have long recognized certain constitutional limits upon the power of the State to control even the curriculum and classroom. For example, Meyer v. Nebraska . . . struck down a state law that forbade the teaching of modern foreign languages
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in public and private schools, and Epperson v. Arkansas . . . declared unconstitutional a state law that prohibited the teaching of the Darwinian theory of evolution in any state-supported school. But the current action does not require us to reenter this difficult terrain, which Meyer and Epperson traversed without apparent misgiving. For as this case is presented to us, it does not involve textbooks, or indeed any books that Island Trees students would be required to read. Respondents do not seek in this Court to impose limitations upon their school board’s discretion to prescribe the curricula of the Island Trees schools. On the contrary, the only books at issue in this case are library books, books that by their nature are optional rather than required reading. Our adjudication of the present case thus does not intrude into the classroom, or into the compulsory courses taught there. Furthermore, even as to library books, the action before us does not involve the acquisition of books. Respondents have not sought to compel their school board to add to the school library shelves any books that students desire to read. Rather, the only action challenged in this case is the removal from school libraries of books originally placed there by the school authorities, or without objection from them. . . . [T]he issue before us in this case is a narrow one, both substantively and procedurally. . . . Does the First Amendment impose any limitations upon the discretion of petitioners to remove library books from the Island Trees High School and Junior High School? . . . The Court has long recognized that local school boards have broad discretion in the management of school affairs. . . . [B]y and large, “public education in our Nation is committed to the control of state and local authorities,” and . . . federal courts should not ordinarily “intervene in the resolution of conflicts which arise in the daily operation of school systems.” Tinker v. Des Moines School Dist. . . . noted that we have “repeatedly emphasized . . . the comprehensive authority of the States and of school officials . . . to prescribe and control conduct in the schools.” We have also acknowledged that public schools are vitally important “in the preparation of individuals for participation as citizens,” and as vehicles for “inculcating
fundamental values necessary to the maintenance of a democratic political system.” We are therefore in full agreement with petitioners that local school boards must be permitted “to establish and apply their curriculum in such a way as to transmit community values,” and that “there is a legitimate and substantial community interest in promoting respect for authority and traditional values, be they social, moral, or political.” At the same time, however, we have necessarily recognized that the discretion of the States and local school boards in matters of education must be exercised in a manner that comports with the transcendent imperatives of the First Amendment. . . . In short, “First Amendment rights, applied in light of the special characteristics of the school environment, are available to . . . students.” Of course, courts should not “intervene in the resolution of conflicts which arise in the daily operations of school systems” unless “basic constitutional values” are “directly and sharply implicate[d]” in those conflicts. But we think that the First Amendment rights of students may be directly and sharply implicated by the removal of books from the shelves of a school library. Our precedents have focused “not only on the role of the First Amendment in fostering individual self-expression but also on its role in affording the public access to discussion, debate, and the dissemination of information and ideas.” And we have recognized that “[t]he State may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge.” . . . This [the right to receive information and ideas] is an inherent corollary of the rights of free speech and press that are explicitly guaranteed by the Constitution, in two senses. First, the right to receive ideas follows ineluctably from the sender’s First Amendment right to send them: “The right of freedom of speech and press . . . embraces the right to distribute literature, . . . and necessarily protects the right to receive it.” “The dissemination of ideas can accomplish nothing if otherwise willing addressees are not free to receive and consider them. It would be a barren marketplace of ideas that had only sellers and no buyers.” More importantly, the right to receive
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Curriculum and the Pall of Orthodoxy
ideas is a necessary predicate to the recipient’s meaningful exercise of his own rights of speech, press, and political freedom. . . . In sum, just as access to ideas makes it possible for citizens generally to exercise their rights of free speech and press in a meaningful manner, such access prepares students for active and effective participation in the pluralistic, often contentious society in which they will soon be adult members. Of course all First Amendment rights accorded to students must be construed “in light of the special characteristics of the school environment.” But the special characteristics of the school make that environment especially appropriate for the recognition of the First Amendment rights of students. A school library, no less than any other public library, is “a place dedicated to quiet, to knowledge, and to beauty.” . . . The school library is the principal locus of such freedom. Petitioners emphasize the inculcative function of secondary education, and argue that they must be allowed unfettered discretion to “transmit community values” through the Island Trees schools. But that sweeping claim overlooks the unique role of the school library. It appears from the record that use of the Island Trees school libraries is completely voluntary on the part of students. Their selection of books from these libraries is entirely a matter of free choice; the libraries afford them an opportunity at self-education and individual enrichment that is wholly optional. Petitioners might well defend their claim of absolute discretion in matters of curriculum by reliance upon their duty to inculcate community values. But we think that petitioners’ reliance upon that duty is misplaced where, as here, they attempt to extend their claim of absolute discretion beyond the compulsory environment of the classroom, into the school library and the regime of voluntary inquiry that there holds sway. In rejecting petitioners’ claim of absolute discretion to remove books from their school libraries, we do not deny that local school boards have a substantial legitimate role to play in the determination of school library content. . . . Petitioners rightly possess significant discretion to determine the content of their school libraries. But that discretion may not be exercised in a narrowly partisan or political manner. If a
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Democratic school board, motivated by party affiliation, ordered the removal of all books written by or in favor of Republicans, few would doubt that the order violated the constitutional rights of the students denied access to those books. The same conclusion would surely apply if an all-white school board, motivated by racial animus, decided to remove all books authored by blacks or advocating racial equality and integration. Our Constitution does not permit the official suppression of ideas. Thus whether petitioners’ removal of books from their school libraries denied respondents their First Amendment rights depends upon the motivation behind petitioners’ actions. If petitioners intended by their removal decision to deny respondents access to ideas with which petitioners disagreed, and if this intent was the decisive factor in petitioners’ decision, then petitioners have exercised their discretion in violation of the Constitution. To permit such intentions to control official actions would be to encourage the precise sort of officially prescribed orthodoxy unequivocally condemned in Barnette. On the other hand, respondents implicitly concede that an unconstitutional motivation would not be demonstrated if it were shown that petitioners had decided to remove the books at issue because those books were pervasively vulgar. And again, respondents concede that if it were demonstrated that the removal decision was based solely upon the “educational suitability” of the books in question, then their removal would be “perfectly permissible.” In other words, in respondents’ view such motivations, if decisive of petitioners’ actions, would not carry the danger of an official suppression of ideas, and thus would not violate respondents’ First Amendment rights. As noted earlier, nothing in our decision today affects in any way the discretion of a local school board to choose books to add to the libraries of their schools. Because we are concerned in this case with the suppression of ideas, our holding today affects only the discretion to remove books. In brief, we hold that local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books and seek by their removal to “prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.” . . .
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School Board Restriction of Access to Harry Potter Violates the Constitution
Counts v. Cedarville School District United States District Court, Western District, Arkansas, 2003. 295 F. Supp. 2d 996.
HENDREN, District J. . . . Plaintiffs, Billy Ray Counts, . . . and Mary Nell Counts, both as parents of Dakota Counts (hereinafter called “plaintiffs” or by their individual names, as appropriate) brought suit . . . , alleging that their rights under the First and Fourteenth Amendments to the United States Constitution were being abridged by the decision of the defendant, Cedarville School District, to restrict the access of students, including Dakota Counts, to certain books in defendant’s library. (The defendant, Cedarville School District, will hereinafter be referred to either as the “defendant” or the “District”.) Plaintiffs prayed for an injunction requiring defendant to return the books to general circulation in its library, and now move for summary judgment. Defendant denies that any constitutional rights have been violated by its actions. . . . . . . The Court first addresses the claims of Billy Ray Counts and Mary Nell Counts as parents of Dakota Counts. As will be seen from the facts . . . , this case involves restrictions on access to certain books in the school libraries of the Cedarville School District. The restrictions require a student to have parental permission to check out the books. Defendant contends that no injury can be shown (i.e., that the case has become moot) because plaintiff Dakota Counts, a Cedarville student, owns several of the books, and her parents have signed a permission slip allowing her to check the books out of the school library. Thus, defendant argues, Dakota has “unfettered access” to the books. Plaintiffs counter that Dakota has suffered an injury because there is a burden on her right to
access the books—the requirement of parental consent—and that access in one forum is not a constitutional substitute for access in another. The Court is persuaded that Dakota Counts has alleged sufficient injury to give her standing to pursue her claims in this case. The right to read a book is an aspect of the right to receive information and ideas, an “inherent corollary of the rights of free speech and press that are explicitly guaranteed by the Constitution.” Board of Education v. Pico. . . . The Supreme Court in Pico recognized that a school library is an “environment especially appropriate for the recognition of the First Amendment rights of students.” The loss of First Amendment rights, even minimally, is injurious. . . . In the case at bar, it is suggested in plaintiffs’ complaint that Dakota’s rights are burdened because the books in question are “stigmatized,” with resulting “stigmatization” of those who choose to read them (“[c]hildren carrying the book with them in the school will be known to be carrying a ‘bad’ book.”) In addition, should Dakota want to review a passage in one of the books while at school, she cannot simply walk into the library and do so. She must locate the librarian, perhaps waiting her turn to consult the librarian, and then ask to check the book out and wait while the librarian verifies that she has parental permission to do so, before she can even open the covers of the book. The Court finds that these burdens, albeit relatively small, constitute a sufficient allegation of an actual concrete and particularized invasion of a legally protected interest to establish Dakota’s standing to bring this suit. . . . The fact that Dakota has access to the books at home does not undermine this decision. The Supreme Court has held that “one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.” . . . . . . Having concluded that plaintiffs have standing to bring a claim of constitutional violation on behalf of Dakota Counts, the Court now turns to the issue of whether summary judgment in their favor is appropriate. . . . In November, 2001, Angie Haney (the mother of a child enrolled in the Cedarville School District) and her pastor, Mark Hodges (who is on the Cedarville School Board) became concerned that a series of books known as the Harry Potter books were in general
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Curriculum and the Pall of Orthodoxy
circulation in the school libraries at Cedarville. Hodges and Cedarville School Superintendent Dave Smith contacted Estella Roberts, Cedarville High School librarian, about the matter. Roberts told Hodges and Smith that under school policy, they would need to complete a form—called a Reconsideration Request Form—to bring about any change in the status of the Harry Potter books. Hodges gave the blank Reconsideration Request Form to Haney, who completed it and returned it to the defendant. On the form, Haney asked that one of the Harry Potter books, Harry Potter And The Sorcerer’s Stone, be withdrawn from all students. After receiving the Reconsideration Request Form, and pursuant to its stated policies, the defendant formed a Library Committee to consider the matter. The Library Committee consisted of five representatives from the high school, five from the middle school, and five from the elementary school. The five people from each school were the principal, the librarian, a teacher, a student, and the parent of a student from that school. The Library Committee reviewed Harry Potter and the Sorcerer’s Stone, and voted unanimously in favor of keeping the book in circulation without any restrictions. After receiving the recommendation of the Library Committee, Roberts made a presentation about the matter to the Cedarville School Board. Defendant’s board then voted 3–2 to restrict access not only to Harry Potter and the Sorcerer’s Stone, but also to the other three books in the Harry Potter series. Members of defendant’s board voting to restrict access were Mark Hodges, Jerry Shelly, and Gary Koonce (hereinafter called “Hodges,” “Shelly,” and “Koonce”). The Board members voting in favor of restricted access did not do so because of concerns about profanity, sexuality, obscenity, or perversion in the books, nor out of any concern that reading the books had actually led to disruption in the schools. Only one of the three had even read Harry Potter and the Sorcerer’s Stone, and none of them had read the other three books in the series. As a result of the vote of defendant’s board, Cedarville High School Principal Glennis Cook issued a memo stating that all Harry Potter books were to be removed from defendant’s library shelves and placed “where they are highly visible, yet not accessible to the students unless they are checking them out.” To check out the books, a student must have
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“a signed permission statement from their parent/legal guardian.” Hodges, Shelly and Koonce intended this directive to be a restriction on access to the books. Plaintiffs . . . sued . . . alleging that the restrictions placed on the Harry Potter books violate [Dakota Counts’] First Amendment rights to freedom of speech and to receive information. . . . Dakota has already read three of the Harry Potter books, owns the fourth, and has written permission from her parents to check the books out of the school library. Given these undisputed facts, the following issue is presented: Does a school board’s decision—to restrict access to library books only to those with parental permission—infringe upon the First Amendment rights of a student who has such permission? Before the Court can decide this issue on a motion for summary judgment, it must first determine if there is any genuine issue of material fact in dispute concerning whether Dakota’s rights are so infringed. . . . In support of their assertion that summary judgment is appropriate, plaintiffs rely on Sund v. City of Wichita Falls, . . . holding that removing a children’s book to the adult section of a public library constituted restriction on access because children searching for the book in the designated children’s areas would be unable to locate it and browsers risked never discovering the book at all. These particular burdens, of course, do not affect Dakota in the case at bar since she has access to the books as above noted. However, for the same reasons the Court concluded that she has standing to bring this action, it finds that the stigmatizing effect of having to have parental permission to check out a book constitutes a restriction on access. Further, the fact that Dakota cannot simply go in the library, take the books off the shelf and thumb through them—perhaps to refresh her mind about a favorite passage— without going through the permission and check-out process is a restriction on her access. Thus, unless it is shown that such restrictions are justified, they amount to impermissible infringements of First Amendment rights. Having concluded that a burden on Dakota’s right of access exists, the Court must consider whether the restrictions are justified by some exigency of the educational environment in the Cedarville School District. Hodges, Shelly and Koonce testified
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by deposition that their vote to restrict access to the Harry Potter books was based on (a) their concern that the books might promote disobedience and disrespect for authority, and (b) the fact that the books deal with “witchcraft” and “the occult.” The Court will examine these positions seriatim. The first asserted justification for the restriction appears to be the shared concern among Hodges, Shelly and Koonce that the Harry Potter books might promote disobedience and disrespect for authority. The constitutional soundness of such a restriction depends on whether there is any evidence to support application of a very narrow exception to the First Amendment rights of primary and secondary public school students. While such students do not shed their constitutional rights at the schoolhouse gate, in First Amendment cases the Supreme Court has recognized a very limited restriction where “necessary to avoid material and substantial interference with schoolwork or discipline.” Tinker v. Des Moines Independent Community School District. . . . . . . [W]hile it is recognized that Boards of Education “have important, delicate, and highly discretionary functions,” it is also recognized that there are “none that they may not perform within the limits of the Bill of Rights. That they are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.” Turning to the evidence which might support defendant’s contention that the restrictions in question are “necessary to avoid material and substantial interference with schoolwork or discipline,” the Court finds the following relevant testimony . . . in the depositions of Hodges, Shelly and Koonce: Hodges (the only one of the three who had actually read an entire Harry Potter book) testified that the books are “going to create problems in the school,” and “could create . . . anarchy.” However he did not know of any behavioral problems that had been created by the series, and he admitted that his vote to restrict access was “a preventative measure at that school to prevent any signs that will come up like Columbine and Jonesboro.” Shelly (who had not read any of the books) testified that books teaching that sometimes rules need to be disobeyed should not be allowed in the
school library. Koonce (who had not read any of the books in full but “just kind of read here and there” in the first book of the series) testified that he believed it “could” lead kids into juvenile delinquency, but that he was motivated not by what the students were doing, only by what they “might do later.” There is no evidence that any of the three Board members was aware of any actual disobedience or disrespect that had flowed from a reading of the Harry Potter books. Their concerns are, therefore, speculative. Such speculative apprehensions of possible disturbance are not sufficient to justify the extreme sanction of restricting the free exercise of First Amendment rights in a public school library. As the Supreme Court pointed out in Tinker, “in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. . . . 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.” Accordingly, the Court finds no merit in the first asserted justification for the restriction. . . . The second asserted justification for the restriction is the shared concerns of Hodges, Shelly and Koonce that the Harry Potter books deal with “witchcraft” and “the occult.” The Court notes that all three men appear to strongly disapprove of “witchcraft” and “the occult.” This second asserted basis for restricting access to the books is, in the Court’s view, no more persuasive than was the first. In the words of Tinker, quoted above, “students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved.” Along with the freedom of expression considerations which apply when witchcraft and the occult are viewed simply as ideas to which students have a right to choose to be exposed, another First Amendment consideration comes into play. The proof before the Court shows that Hodges, Shelly and Koonce admittedly want to restrict access to the books because of their shared belief that the books promote a particular religion, e.g.: Hodges testified that witchcraft is
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Curriculum and the Pall of Orthodoxy
a religion and that he objected to a book which would expose Cedarville students to the “witchcraft religion.” Shelly testified that he objected to the books because they “teach witchcraft”— but that if the books “promoted Christianity” he would not object to them. Koonce testified that the books “teach about witchcraft,” and that witchcraft is a religion. Regardless of the personal distaste with which these individuals regard “witchcraft,” it is not properly within their power and authority as members of defendant’s school board to prevent the students at Cedarville from reading about it. As the Supreme Court said in Pico, supra, [O]ur Constitution does not permit the official suppression of ideas. . . . [W]e hold that local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books and seek by their removal to “prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.”
. . . The Court, therefore, finds no merit in the second asserted justification for the restrictions in question. There is no evidence shown to the Court which might reasonably have led defendant’s Board members “to forecast substantial disruption of or material interference with school activities” if students were to be allowed unfettered access to the Harry Potter books (as would be required to bring them within the narrow Tinker restriction), nor can the defendant permissibly restrict access on the basis of the ideas expressed therein—whether religious or secular. These are the reasons given by the three individuals who, by their votes as a majority of defendant’s five-member board, made defendant’s decision to restrict access. Accordingly, based upon the testimony of the individuals who cast the deciding votes in favor of the policy herein challenged, the Court finds there is no genuine dispute as to the material relevant facts and that, when the evidence is viewed in the light most favorable to the defendant, the conclusion is inevitable that defendant removed the books from its library shelves for reasons not authorized by the Constitution. There being no genuine issue of material fact in dispute as to these matters, the Court finds that Dakota Counts’ First Amendment rights are being infringed by defendant’s decision to
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restrict access to the Harry Potter books to those students whose parents sign a permission slip allowing them to check out the books. Summary judgment in her favor will therefore be granted.
CASE NOTE The plurality decision in Pico, in which no clearcut majority logic is ascertainable, prevents the case from standing as a viable binding precedent. In Muir v. Alabama Educational Television Commission, the U.S. Court of Appeals, Fifth Circuit, Judge Hill writing, said “that the ‘no-clear-majority’ nature of Pico meant that its First Amendment analysis did not have precedential value.” 688 F.2d 1033 (5th Cir. 1982). Later, the Fifth Circuit observed that Pico provided guidance in such cases but was not a binding precedent. Campbell v. St. Tammany Parish School Board, 64 F.3d 184 (5th Cir. 1995). In the latter case, the court reversed a summary judgment entered by a federal district court that held that the removal of the book Voodoo and Hoodoo from the library shelves of all district schools was unconstitutional. In reviewing this case, the Fifth Circuit summarized the U.S. Supreme Court’s primary points in Pico for guidance in future cases: 1. The Pico plurality stressed the “unique role of the school library” as a place where students could engage in voluntary inquiry. 2. It also observed that “students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding” and that the school library served as “the principal locus of such freedom.” 3. The Pico plurality recognized that the high degree of deference accorded to educators’ decisions regarding curricular matters diminishes when the challenged decision involves a noncurricular matter. 4. Emphasizing the voluntary nature of public school library use, the plurality in Pico observed that school officials’ decisions regarding public school library materials are properly viewed as decisions that do not involve the school curriculum and that are therefore subject to certain constitutional limitations. 5. In rejecting the school officials’ claim of absolute discretion to remove books from their school libraries, the Pico plurality recognized
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that students have a First Amendment right to receive information and that school officials are prohibited from exercising their discretion to remove books from school library shelves “simply because they dislike the ideas contained in those books and seek by their removal to ‘prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.’ ” 6. The Pico plurality observed that if school officials intended by their removal decision to deny students access to ideas with which the school officials disagreed, and this intent was the decisive factor in the removal decision, then the school officials had “exercised their discretion in violation of the Constitution.” 7. The Court in its plurality opinion implicitly recognized, however, that an unconstitutional motivation would not be demonstrated if the school officials removed the books from the public school libraries based on a belief that the books were “pervasively vulgar” or on grounds of “educational suitability.” Campbell v. St. Tammany Parish School Board, 64 F.2d. at 187–188. (5th Cir. 1995).
School Board’s Removal of Works by Aristophanes and Chaucer from Curriculum Is Reasonably Related to Legitimate Pedagogical Concerns
Virgil v. School Board of Columbia County, Florida United States Court of Appeals, Eleventh Circuit, 1989. 862 F.2d 1517.
ANDERSON, Circuit Judge. This case presents the question of whether the first amendment prevents a school board from removing a previously approved textbook from an elective high school class because of objections to the material’s vulgarity and sexual explicitness. We conclude that a school board may, without contravening constitutional limits, take such action where, as here, its methods are
“reasonably related to legitimate pedagogical concerns.” Accordingly, we affirm the judgment of the district court. The essential facts were stipulated by the parties to this dispute. Since about 1975 the educational curriculum at Columbia High School has included a course entitled “Humanities to 1500” offered as part of a two-semester survey of Western thought, art and literature. In 1985 the school designed the course for eleventh- and twelfthgrade students and prescribed as a textbook Volume I of The Humanities: Cultural Roots and Continuities. This book contained both required and optional readings for the course. Among the selections included in Volume I of Humanities which were neither required nor assigned are English translations of Lysistrata, written by the Greek dramatist Aristophanes in approximately 411 B.C., and The Miller’s Tale, written by the English poet Geoffrey Chaucer around 1380–1390 A.D. During the fall semester of the 1985–86 school year, a portion of Lysistrata was read aloud in class during a session of the Humanities course. In the spring of 1986, after the first semester had ended, the Reverend and Mrs. Fritz M. Fountain, the parents of a student who had taken the class in the fall of 1985, filed a formal complaint concerning Volume I of Humanities with the School Board of Columbia County. . . . Their objections centered upon Lysistrata and The Miller’s Tale. In response to this parental complaint, the School Board on April 8, 1986, adopted a Policy on Challenged State Adopted Textbooks to address any complaints regarding books in use in the curriculum. Pursuant to the new policy, the School Board appointed an advisory committee to review Volume I of Humanities. Upon examination, the committee recommended that the textbook be retained in the curriculum, but that Lysistrata and The Miller’s Tale not be assigned as required reading. At its April 22, 1986, meeting the School Board considered the advisory committee’s report. Silas Pittman, Superintendent of the Columbia County School System, offered his disagreement with the committee’s conclusion, and recommended that the two disputed selections be deleted from Volume I or that use of the book in the curriculum be terminated. Adopting the latter
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Curriculum and the Pall of Orthodoxy
proposal, the School Board voted to discontinue any future use of Volume I in the curriculum. Pursuant to the Board decision, Volume I of Humanities was placed in locked storage and has been kept there ever since. . . . On November 24, 1986, parents of students at Columbia High School filed an action against the School Board and the Superintendent seeking an injunction against the textbook removal and a declaration that such action violated their first amendment rights. . . . It has long been clear that public school students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” . . . At the same time, the Supreme Court has held that the rights of students in public schools are not automatically coextensive with the rights of adults, . . . and has recognized the central role of public schools in transmitting values necessary to the development of an informed citizenry. . . . In matters pertaining to the curriculum, educators have been accorded greater control over expression than they may enjoy in other spheres of activity. . . . [C]ourts that have addressed the issue have failed to achieve a consensus on the degree of discretion to be accorded school boards to restrict access to curricular materials. . . . The most direct guidance from the Supreme Court is found in the recent case of Hazelwood School District v. Kuhlmeier. . . . In Hazelwood the Court upheld the authority of a high school principal to excise two pages from a schoolsponsored student newspaper on the grounds that articles concerning teenage pregnancy and divorce were inappropriate for the level of maturity of the intended readers, the privacy interests of the articles’ subjects were insufficiently protected, and the controversial views contained therein might erroneously be attributed to the school. Hazelwood established a relatively lenient test for regulation of expression which “may fairly be characterized as part of the school curriculum.” Such regulation is permissible so long as it is “reasonably related to legitimate pedagogical concerns.” . . . In applying that test the Supreme Court identified one such legitimate concern which is relevant to this case: “a school must be able to take into account the emotional maturity of the
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intended audience in determining whether to disseminate student speech on potentially sensitive topics . . . [e.g.,] the particulars of teenage sexual activity.” . . . In applying the Hazelwood standard to the instant case, two considerations are particularly significant. First, we conclude that the Board decisions at issue were curricular decisions. The materials removed were part of the textbook used in a regularly scheduled course of study in the school. Plaintiffs argue that this particular course was an elective course, and not a required course. However, common sense indicates that the overall curriculum offered by a school includes not only the core curriculum (i.e., required courses) but also such additional, elective courses of study that school officials design and offer. Each student is expected to select from the several elective courses which school officials deem appropriate in order to fashion a curriculum tailored to his individual needs. One factor identified in Hazelwood as relevant to the determination of whether an activity could fairly be characterized as part of the curriculum is whether “the public might reasonably perceive [the activity] to bear the imprimatur of the school.” . . . It is clear that elective courses designed and offered by the school would be so perceived. Plaintiffs further point out that the materials removed in this case not only were part of an elective course, but were optional, not required readings. For the reasons just mentioned, we conclude that the optional readings removed in this case were part of the school curriculum. Just as elective courses are designed by school officials to supplement required courses, optional readings in a particular class are carefully selected by the teacher as relevant and appropriate to supplement required readings in order to further the educational goals of the course. This is especially true in the instant circumstances, where the optional readings were included within the text itself, and thus had to accompany the student every time the text was taken home. Such materials would obviously carry the imprimatur of school approval. The second consideration that is significant in applying the Hazelwood standard to this case is the fact that the motivation for the Board’s removal of the readings has been stipulated to be
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related to the explicit sexuality and excessively vulgar language in the selections. It is clear from Hazelwood and other cases that this is a legitimate concern. School officials can “take into account the emotional maturity of the intended audience in determining . . . [the appropriateness of] potentially sensitive topics” such as sex and vulgarity. . . . Since the stipulated motivation of the School Board relates to legitimate concerns, we need only determine whether the Board action was reasonably related thereto. It is of course true, as plaintiffs so forcefully point out, that Lysistrata and The Miller’s Tale are widely acclaimed masterpieces of Western literature. However, after careful consideration, we cannot conclude that the school’s actions were not reasonably related to its legitimate concerns regarding the appropriateness (for this high school audience) of the sexuality and vulgarity in these works. Notwithstanding their status as literary classics, Lysistrata and The Miller’s Tale contain passages of exceptional sexual explicitness, as numerous commentators have noted. In assessing the reasonableness of the Board’s action, we also take into consideration the fact that most of the high school students involved ranged in age from fifteen to just over eighteen, and a substantial number had not yet reached the age of majority. We also note that the disputed materials have not been banned from the school. The Humanities textbook and other adaptations of Lysistrata and The Miller’s Tale are available in the school library. No student or teacher is prohibited from assigning or reading these works or discussing the themes contained therein in class or on school property. . . . Under all the circumstances of this case, we cannot conclude that the Board’s action was not reasonably related to the stated legitimate concern. We decide today only that the Board’s removal of these works from the curriculum did not violate the Constitution. Of course, we do not endorse the Board’s decision. Like the district court, we seriously question how young persons just below the age of majority can be harmed by these masterpieces of Western literature. However, having concluded that there is no constitutional violation, our role is not to second guess the wisdom of the Board’s action. The judgment of the district court is affirmed.
CASE NOTE Chilling Effect: In denying a parent’s complaint, alleging violations of the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964, to compel a school board to remove from the required reading in an English class the two classic literary works, The Adventures of Huckleberry Finn, by Mark Twain, and the short story A Rose for Emily, by William Faulkner, a federal court pointed out the potential quagmire of judicial literary censorship that could result if courts began to substitute their judgments for those of school boards in the selection of curricular materials. Further, the court noted that the effect of such selective judicial approvals and disapprovals would create a “chilling effect” on local school boards that could restrict generally the expansion and conveyance of knowledge. The court said: There is, of course, an extremely wide—if not unlimited—range of literary products that might be considered injurious or offensive, particularly when one considers that high school students frequently take Advanced Placement courses that are equivalent to college-level courses. White plaintiffs could seek to remove books by Toni Morrison, Maya Angelou, and other prominent Black authors on the ground that they portray Caucasians in a derogatory fashion; Jews might try to impose civil liability for the teachings of Shakespeare and of more modern English poets where writings exhibit a similar anti-Semitic strain. Female students could attempt to make a case for damages for the assignment of some of the works of Tennessee Williams, Hemingway, or Freud, and male students for the writings of Andrea Dworkin or Margaret Atwood. The number of potential lawsuits that could arise from the highly varied educational curricula throughout the nation might well be unlimited and unpredictable. Many school districts would undoubtedly prefer to “steer far” from any controversial book and instead substitute “safe” ones in order to reduce the possibility of civil liability and the expensive and time-consuming burdens of a lawsuit—even one having but a slight chance of success. In short, permitting lawsuits against school districts on the basis of the content of literary works to proceed past the complaint stage could have a significant chilling effect on a school district’s willingness to assign books with themes, characters, snippets of dialogue, or words that might offend the sensibilities of any number of persons or groups.
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Curriculum and the Pall of Orthodoxy
Monteiro v. Tempe Union High School District, 158 F.3d 1022 (9th Cir. 1998). According to the Ninth Circuit, such a “chilling effect” could well deny First Amendment rights of other students who were denied the information and ideas. This decision is consistent with Virgil to the extent that it rejects judicial encroachment into curricular decisions of school boards.
Requirement That Students Study Basic Reader Series Does Not Violate Free Exercise Clause
Mozert v. Hawkins County Board of Education United States Court of Appeals, Sixth Circuit, 1987. 827 F.2d 1058.
LIVELY, Chief Judge. This case arose under the Free Exercise Clause of the First Amendment, made applicable to the states by the Fourteenth Amendment. The district court held that a public school requirement that all students in grades one through eight use a prescribed set of reading textbooks violated the constitutional rights of objecting parents and students. . . . Early in 1983 the Hawkins County, Tennessee, Board of Education adopted the Holt, Rinehart and Winston basic reading series (the Holt series) for use in grades 1–8 of the public schools of the county. . . . Like many school systems, Hawkins County schools teach “critical reading” as opposed to reading exercises that teach only word and sound recognition. “Critical reading” requires the development of higher order cognitive skills that enable students to evaluate the material they read, to contrast the ideas presented, and to understand complex characters that appear in reading material. . . . The plaintiff Vicki Frost is the mother of four children, three of whom were students in Hawkins County public schools in 1983. At the beginning of the 1983–84 school year Mrs. Frost
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read a story in a daughter’s sixth grade reader that involved mental telepathy. Mrs. Frost, who describes herself as a “born again Christian,” has a religious objection to any teaching about mental telepathy. Reading further, she found additional themes in the reader to which she had religious objections. After discussing her objections with other parents, Mrs. Frost talked with the principal of Church Hill Middle School and obtained an agreement for an alternative reading program for students whose parents objected to the assigned Holt reader. The students who elected the alternative program left their classrooms during the reading sessions and worked on assignments from an older textbook series in available office or library areas. Other students in two elementary schools were excused from reading the Holt books. In November 1983 the Hawkins County School Board voted unanimously to eliminate all alternative reading programs and require every student in the public schools to attend classes using the Holt series. Thereafter the plaintiff students refused to read the Holt series or attend reading classes where the series was being used. On December 2, 1983, the plaintiffs, consisting of seven families—14 parents and 17 children— filed this action pursuant to 42 U.S.C. § 1983. In their complaint the plaintiffs asserted that they have sincere religious beliefs which are contrary to the values taught or inculcated by the reading textbooks and that it is a violation of the religious beliefs and convictions of the plaintiff students to be required to read the books and a violation of the religious beliefs of the plaintiff parents to permit their children to read the books. The plaintiffs sought to hold the defendants liable because “forcing the student-plaintiffs to read school books which teach or inculcate values in violation of their religious beliefs and convictions is a clear violation of their rights to the free exercise of religion protected by the First and Fourteenth Amendments to the United States Constitution.” . . . Vicki Frost was the first witness for the plaintiffs and she presented the most complete explanation of the plaintiffs’ position. The plaintiffs do not belong to a single church or denomination, but all consider themselves born again Christians. Mrs. Frost testified that the word of God as found in the Christian Bible “is the totality of my
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beliefs.” There was evidence that other members of their churches, and even their pastors, do not agree with their position in this case. Mrs. Frost testified that she had spent more than 200 hours reviewing the Holt series and had found numerous passages that offended her religious beliefs. She stated that the offending materials fell into seventeen categories which she listed. These ranged from such familiar concerns of fundamentalist Christians as evolution and “secular humanism” to less familiar themes such as “futuristic supernaturalism,” pacifism, magic, and false views of death. In her lengthy testimony Mrs. Frost identified passages from stories and poems used in the Holt series that fell into each category. Illustrative is her first category, futuristic supernaturalism, which she defined as teaching “Man as God.” Passages that she found offensive described Leonardo da Vinci as the human with a creative mind that “came closest to the divine touch.” Mrs. Frost testified that it is an “occult practice” for children to use imagination beyond the limitation of scriptural authority. She testified that the story that alerted her to the problem with the reading series fell into the category of futuristic supernaturalism. Entitled “A Visit to Mars,” the story portrays thought transfer and telepathy in such a way that “it could be considered a scientific concept,” according to this witness. This theme appears in the testimony of several witnesses, i.e., the materials objected to “could” be interpreted in a manner repugnant to their religious beliefs. Mrs. Frost described objectionable passages from other categories in much the same way. Describing evolution as a teaching that there is no God, she identified 24 passages that she considered to have evolution as a theme. . . . Another witness for the plaintiffs was Bob Mozert, father of a middle school and an elementary school student in the Hawkins County system. His testimony echoed that of Vicki Frost in large part, though his answers to questions tended to be much less expansive. . . . The first question to be decided is whether a governmental requirement that a person be exposed to ideas he or she finds objectionable on religious grounds constitutes a burden on the free exercise of that person’s religion as forbidden by the First Amendment. . . .
It is also clear that exposure to objectionable material is what the plaintiffs objected to, albeit they emphasize the repeated nature of the exposure. The complaint mentioned only the textbooks that the students were required to read. It did not seek relief from any method of teaching the material and did not mention the teachers’ editions. The plaintiffs did not produce a single student or teacher to testify that any student was ever required to affirm his or her belief or disbelief in any idea or practice mentioned in the various stories and passages contained in the Holt series. However, the plaintiffs appeared to assume that materials clearly presented as poetry, fiction and even “make-believe” in the Holt series were presented as facts which the students were required to believe. Nothing in the record supports this assumption. . . . . . . Proof that an objecting student was required to participate beyond reading and discussing assigned materials, or was disciplined for disputing assigned materials, might well implicate the Free Exercise Clause because the element of compulsion would then be present. But this was not the case either as pled or proved. The record leaves no doubt that the district court correctly viewed this case as one involving exposure to repugnant ideas and themes as presented by the Holt series. Vicki Frost testified that an occasional reference to role reversal, pacifism, rebellion against parents, one-world government and other objectionable concepts would be acceptable, but she felt it was the repeated references to such subjects that created the burden. . . . . . . Mrs. Frost testified that it would be acceptable for the schools to teach her children about other philosophies and religions, but if the practices of other religions were described in detail, or if the philosophy was “profound” in that it expressed a world view that deeply undermined her religious beliefs, then her children “would have to be instructed to [the] error [of the other philosophy].” It is clear that to the plaintiffs there is but one acceptable view—the Biblical view, as they interpret the Bible. Furthermore, the plaintiffs view every human situation and decision, whether related to personal belief and conduct or to public policy and programs, from a theological or religious perspective. . . . The Supreme Court has recently affirmed that public schools serve the purpose of teaching
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Curriculum and the Pall of Orthodoxy
fundamental values “essential to a democratic society.” These values “include tolerance of divergent political and religious views” while taking into account “consideration of the sensibilities of others.” . . . The Court has noted with apparent approval the view of some educators who see public schools as an “assimilative force” that brings together “diverse and conflicting elements” in our society “on a broad but common ground.” . . . The critical reading approach furthers these goals. Mrs. Frost stated specifically that she objected to stories that develop “a religious tolerance that all religions are merely different roads to God.” Stating that the plaintiffs reject this concept, presented as a recipe for an ideal world citizen, Mrs. Frost said, “We cannot be tolerant in that we accept other religious views on an equal basis with ours.” While probably not an uncommon view of true believers in any religion, this statement graphically illustrates what is lacking in the plaintiffs’ case. The “tolerance of divergent . . . religious views” referred to by the Supreme Court is a civil tolerance, not a religious one. It does not require a person to accept any other religion as the equal of the one to which that person adheres. It merely requires recognition that in a pluralistic society we must “live and let live.” If the Hawkins County schools had required the plaintiff students either to believe or say they believe that “all religions are merely different roads to God,” this would be a different case. No instrument of government can, consistent with the Free Exercise Clause, require such a belief or affirmation. However, there was absolutely no showing that the defendant school board sought to do this; indeed, the school board agreed at oral argument that it could not constitutionally do so. Instead, the record in this case discloses an effort by the school board to offer a reading curriculum designed to acquaint students with a multitude of ideas and concepts, though not in proportions the plaintiffs would like. While many of the passages deal with ethical issues, on the surface at least, they appear to us to contain no religious or anti-religious messages. Because the plaintiffs perceive every teaching that goes beyond the “three Rs” as inculcating religious ideas, they admit that any value-laden reading curriculum that did not affirm the truth of their beliefs would offend their religious convictions.
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Although it is not clear that the plaintiffs object to all critical reading, Mrs. Frost did testify that she did not want her children to make critical judgments and exercise choices in areas where the Bible provides the answer. There is no evidence that any child in the Hawkins County schools was required to make such judgments. It was a goal of the school system to encourage this exercise, but nowhere was it shown that it was required. When asked to comment on a reading assignment, a student would be free to give the Biblical interpretation of the material or to interpret it from a different value base. The only conduct compelled by the defendants was reading and discussing the material in the Holt series, and hearing other students’ interpretations of those materials. This is the exposure to which the plaintiffs objected. What is absent from this case is the critical element of compulsion to affirm or deny a religious belief or to engage or refrain from engaging in a practice forbidden or required in the exercise of a plaintiff’s religion. . . . Since we have found none of the prohibited forms of governmental compulsion in this case, we conclude that the plaintiffs failed to establish the existence of an unconstitutional burden. Having determined that no burden was shown, we do not reach the issue of the defendants’ compelling interest in requiring a uniform reading series or the question, raised by the defendant, of whether awarding damages violated the Establishment Clause. . . . . . . There was no evidence that the conduct required of the students was forbidden by their religion. Rather, the witnesses testified that reading the Holt series “could” or “might” lead the students to come to conclusions that were contrary to teachings of their and their parents’ religious beliefs. This is not sufficient to establish an unconstitutional burden. . . . The judgment of the district court granting injunctive relief and damages is reversed, and the case is remanded with directions to dismiss the complaint. No costs are allowed. The parties will bear their own costs on appeal.
CASE NOTES 1. Sequel to Mozert. Following the determination in the Hawkins County case, Vicki Frost, a “born-again Christian,” was arrested for failure to leave school grounds after being told
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on several occasions by the principal that her repeated removal of her child from reading class and her conducting of reading lessons in the school parking lot, in the family car, was in violation of school policy. Frost sued, claiming a denial of freedom of expression and due process because she was denied custody of her child during the school day. The court held that the school board had not deprived Frost of her freedom of expression nor had she been deprived of the custody of her child without due process. Further, the court held that the city police were not liable for arresting her on school grounds. Her presence on school grounds and repeated refusal to leave was in violation of state statute forbidding trespass on school property. Frost v. Hawkins County Board of Education, 851 F.2d 822 (6th Cir. 1988). 2. Brian Barry, the highly regarded moral philosopher, said about Mozert that: “If the Mozert parents had deformed their children’s bodies by restricting their ability to move freely, nobody . . . would have any doubt that some public agency had a duty to intervene so as to protect the children from abuse.” Brian Barry, Culture & Equality (Cambridge, U.K.: Polity Press, 2001) p. 246. 3. Secular Humanism and Textbooks. Plaintiffs in an Alabama case, Smith v. Board of School Commissioners of Mobile County, 827 F.2d 684 (11th Cir. 1987), claimed that use of certain home economics textbooks required students to accept tenets of humanistic psychology, a term that the lower court found to be a “manifestation of humanism.” Humanism or secular humanism, it was maintained, was a religion advanced by the public schools through the use of home economics, history, and social studies textbooks that “implied that a person uses the same process in deciding a moral issue that he uses in choosing one pair of shoes over another.” It was contended that these home economics, history, and social studies textbooks inferred that “the student must determine right and wrong based only on his own experience, feelings and [internal] values” and that such “moral choice is only to be decided by the student.” The plaintiffs further asserted that the textbooks assumed that “self-actualization is the goal of every
human being, and that man has no supernatural attributes . . . , that there are only temporal and physical consequences for man’s actions, and that these results, alone, determine the morality of an action.” This “belief strikes at the heart of many theistic religious beliefs that certain actions are in and of themselves immoral, whatever the consequences.” By not seeking ecclesiastical answers in resolving human decisions, the schools, it was claimed, denied or inhibited religion and advanced secularism. In support of the charge that the schools were purely temporal, the plaintiffs cited a recommended decisionmaking process cited by the textbooks. This process called for resolving problems by (1) defining the problem, (2) establishing goals, (3) listing goals in priority order, (4) looking for resources, (5) studying the alternatives, (6) making a decision, (7) carrying out the decision, and (8) evaluating the results. Because this process did not invoke divine guidance or include a step for spiritual involvement, the plaintiffs and the lower court concluded that the textbooks advanced secular humanism as a religion and denied theistic religious views. The appeals court found for the school board and in so doing, concluded: . . . Examination of the contents of these textbooks, including the passages pointed out by Appellees as particularly offensive, in the context of the books as a whole and the undisputedly nonreligious purpose sought to be achieved by their use, reveals that the message conveyed is not one of endorsement of secular humanism or any religion. Rather, the message conveyed is one of a governmental attempt to instill in Alabama public school children such values as independent thought, tolerance of diverse views, self-respect, maturity, self-reliance and logical decisionmaking. This is an entirely appropriate secular effect. Indeed, one of the major objectives of public education is the “inculca[tion of] fundamental values necessary to the maintenance of a democratic political system.” . . . Nor do these textbooks evidence an attitude antagonistic to theistic belief. The message conveyed by these textbooks with regard to theistic religion is one of neutrality: the textbooks neither endorse theistic religion as a system of belief, nor discredit it. . . . There is no doubt that these textbooks were chosen for the secular purpose of education in the areas of history and social studies, and we find that the
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Curriculum and the Pall of Orthodoxy primary effect of the use of these textbooks is consistent with that stated purpose. We do not believe that an objective observer could conclude from the mere omission of certain historical facts regarding religion or the absence of a more thorough discussion of its place in modern American society that the State of Alabama was conveying a message of approval of the religion of secular humanism. . . . There simply is nothing in this record to indicate that omission of certain facts regarding religion from these textbooks of itself constituted an advancement of secular humanism or an active hostility towards theistic religion prohibited by the establishment clause.
Curriculum Discussing Witchcraft and Sorcerers Does Not Violate Establishment Clause
Brown v. Woodland Joint Unified School District United States Court of Appeals, Ninth Circuit, 1994. 27 F.3d 1373.
O’SCANNLAIN, Circuit Judge. We must decide whether classroom activities in a California public school district require children to practice the “religion” of witchcraft in violation of the federal Establishment Clause and the California Constitution. Douglas E. Brown and Katherine E. Brown, parents of two students formerly enrolled in the Woodland Joint Unified School District (the “School District”), seek injunctive and declaratory relief under 42 U.S.C. § 1983, alleging that the School District had violated their children’s rights under the United States and California Constitutions. The Browns and their children are part of the Christian Assembly of God denomination. The Browns object to the School District’s use of portions of Impressions, a teaching aid, in the first through sixth grades. Impressions is a series of 59 books containing approximately 10,000 literary selections and suggested classroom activities. It implements a “whole language” approach to
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reading instruction that has the goal of inducing children to read more quickly and with greater enthusiasm through the use of high quality literary selections. Literary selections are followed by suggested learning activities, such as having children compose rhymes and chants, act out the selections, and discuss the selections’ characters and themes. The selections reflect a broad range of North American cultures and traditions. The Browns challenge 32 of the Impressions selections (the “Challenged Selections”). They contend that these selections promote the practice of witchcraft, which they assert is a religion called “Wicca.” Most of the Challenged Selections ask children to discuss witches or to create poetic chants. Some selections also ask students to pretend that they are witches or sorcerers and ask them to role-play these characters in certain situations. The Browns have provided evidence indicating that practitioners of the witchcraft religion are known as sorcerers and witches and that spells and charms are sacred rituals of this occult religion. The Browns contend that, because the Challenged Selections resemble witchcraft rituals, the School District’s use of the selections violates the federal and state Constitutions. . . . The School District does not contest the Browns’ assertion that witchcraft (“Wicca”) is a religion under the California and federal Constitutions, and we will assume, without deciding, that it is a religion for the purpose of this appeal. We thus apply the Lemon test to the Browns’ claim, which requires a challenged government practice (1) to have a secular purpose, (2) to have a primary effect that neither advances nor inhibits religion, and (3) not to foster excessive state entanglement with religion. . . . The Browns concede that the author-editors of Impressions chose the Challenged Selections for a secular purpose and that the School District adopted Impressions for a secular purpose. They also do not assert that any School District teachers are using the Challenged Selections for the purpose of advancing witchcraft. Use of the Challenged Selections thus does not violate the purpose prong of the Lemon test. The Browns contend that the use of the Challenged Selections violates the second prong of the Lemon test, which bars any government practice that has the “primary” effect of advancing or
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disapproving of religion, even if that effect is not intended. The concept of a “primary” effect encompasses even nominally “secondary” effects of government action that directly and immediately advance, or disapprove of, religion. . . . The parties dispute the standard for judging whether a government action “conveys a message” of endorsement or disapproval of religion. The Browns assert that this inquiry must be made from the subjective perspective of an “impressionable child.” The School District counters that the correct perspective is that of a reasonable observer. The district court took a middle ground between these approaches, concluding that “[t]he effect analysis is influenced to some degree by the audience to whom the message is conveyed. . . .” We agree with the district court that the primary effect of a challenged practice generally is considered under the reasonable observer standard. . . . “This hypothetical observer is informed as well as reasonable; we assume that he or she is familiar with the history of the government practice at issue.” . . . However, these assumptions are less valid for elementary school children, who are less informed, more impressionable and more subject to peer pressure than average adults. . . . Courts thus have considered the more vulnerable nature of school-age children when analyzing the primary effect of state actions in the elementary school environment. The Browns contend that this perspective demands a subjective standard for determining whether a challenged practice appears to children as endorsing or disapproving of a religion. We disagree. Rather than consider what effect a challenged government practice has had on a particular public school student, the Supreme Court and this circuit consistently have applied an objective standard for public school Establishment Clause inquiries. . . . Use of this standard makes good sense. “People may take offense at all manner of religious as well as nonreligious messages.” . . . If an Establishment Clause violation arose each time a student believed that a school practice either advanced or disapproved of a religion, school curricula would be reduced to the lowest common denominator, permitting each student to become a “curriculum review committee” unto himself or herself. . . .
Thus we will analyze whether an objective observer in the position of an elementary school student would perceive a message of endorsement of witchcraft, or of disapproval of Christianity, in the Challenged Selections. The Browns assert that a message of endorsement is communicated because the Challenged Selections engage children in witchcraft rituals and cause them to pretend that they are witchcraft practitioners. The closest case in this circuit to the instant controversy is Grove v. Mead School District No. 354, 753 F.2d 1528 (9th Cir. 1985). In Grove, the plaintiffs alleged that a book entitled The Learning Tree, which was part of the defendant school’s sophomore curriculum, advanced the religion of secular humanism in violation of the federal Establishment Clause. The court rejected their claim. Observing that the “Supreme Court has stated clearly that literary or historic study of the Bible is not prohibited religious activity,” the court concluded that the reading of the book was “not a ritual” but a study of the “expectations and orientations of Black Americans.” . . . It further concluded that the book was “included in a group of religiously neutral books in a review of English literature, as a comment on an American subculture.” To the extent that the Challenged Selections involve no more than merely reading, discussing or contemplating witches, their behavior, or witchcraft, they fall squarely within the holding of Grove. See Grove, 753 F.2d at 1540 (Canby, J. concurring) (“Luther’s ‘Ninety-Nine [sic] Theses’ are hardly balanced or objective, yet their pronounced and even vehement bias does not prevent their study in a history class’ exploration of the Protestant Reformation, nor is Protestantism itself ‘advanced’ thereby”). Such selections thus are not reasonably viewed as communicating a message of endorsement. . . . The Browns then argue that the resemblance of the Challenged Selections to the practices of witchcraft causes children reasonably to believe that they are engaging in witchcraft ritual. However, a practice’s mere consistency with or coincidental resemblance to a religious practice does not have the primary effect of advancing religion. . . . The fact that the Challenged Selections constitute only a minute part of the Impressions curriculum further ensures that an objective observer in the position of an elementary school student
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Curriculum and the Pall of Orthodoxy
would not view them as religious rituals endorsing witchcraft. . . . The Browns assert that the context in which the Challenged Selections appear cannot neutralize their religious content. They argue that context is irrelevant where a person is required to participate in a religious ritual. . . . This position is untenable, however, because the Challenged Selections are not formal religious rituals; at best, the Browns can prove only that children may perceive them as such. The context in which Challenged Selections exist is relevant to determining whether children will have such a perception. . . . The Browns assert that use of the Challenged Selections was not necessary to accomplish the School District’s pedagogical goals and conclude that the unnecessary use of practices resembling religious ritual endorses religion. However, once the state is free to use a secular means of attaining a goal, it is not required to use an alternative secular means that is less likely to be associated with religion. . . . As we have established, the Challenged Selections are secular, not sectarian. Consequently, the School District’s decision not to use alternative educational tools did not endorse witchcraft. . . . The Browns argue that a failure by this panel to find that the Challenged Selections endorse witchcraft would discriminate against Christianity and other popular religions. Their argument rests on their observation that it would “obviously” violate the Establishment Clause if Impressions selections were to require children intentionally to perform, for example, a baptism, to take communion or to chant a rosary. These hypothetical examples are distinguishable from the Challenged Selections. Baptism, communion, and the rosary are “overt religious exercises,” performed for sectarian purposes. . . . Mimicry of them by public school children thus more likely, though perhaps not necessarily, . . . would give the appearance of an endorsement of religion. In contrast, the activities in the Challenged Selections are fantasy activities, drawn from a secular source and used for a secular purpose, that happen to resemble religious practices. They are not “overt religious exercises” that raise Establishment Clause concerns. Consequently, we do not believe that affirmance of the district court’s judgment will lead to disparate adverse treatment of popular religions.
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Finally, the Browns argue that the School District’s use of the Challenged Selections denigrates Christianity and makes Christians feel like outsiders. Their argument relies on their assertion that the alleged witchcraft activities in the Challenged Selections are repugnant to their religious beliefs. For the reasons expressed above, a child’s subjective perception that a state action disapproves of or is hostile toward his or her religion is not, by itself, sufficient to establish an Establishment Clause violation. A party must show that an objective observer in the position of an elementary school student would have this view. The purported state hostility toward or disapproval of Christianity consists of the alleged coincidental resemblance of the Challenged Selections to rituals and practitioners of witchcraft. For the same reasons that the use of these selections does not endorse witchcraft, it does not evince hostility toward or otherwise disapprove of Christianity. The Browns have not persuaded us that the second, “effects,” prong of Lemon has been violated here. The third prong of the Lemon test prohibits a practice that fosters an excessive entanglement of the state with religion. . . . The Browns assert that Impressions fosters excessive entanglement by generating political divisiveness “along religious lines” and requiring undue state surveillance of the purportedly religious-oriented aspects of the curriculum. . . . . . . The political divisiveness doctrine generally is applied only in cases involving direct government subsidies to sectarian institutions. . . . Unlike those cases, the School District’s use of the Challenged Selections is not an intentional effort to aid overtly religious exercises and issues. The district court’s decision not to apply the political divisiveness doctrine thus was proper. . . . The Browns have failed to persuade us that any of the three prongs of the Lemon test has been breached here. We conclude, therefore, that the School District has not violated the federal Establishment Clause in its use of the Impressions series. The Browns do not raise a genuine issue of material fact that a violation of the United States . . . Constitution . . . has occurred. Summary judgment in favor of the School District is therefore Affirmed.
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CASE NOTE In another case involving the Impressions reading series, parents claimed similarly that the series violated the Establishment Clause and Free Exercise Clause of the First Amendment. The parents alleged that the series fostered “a religious belief in the existence of superior beings exercising power over human beings” and focused on supernatural powers of wizards, sorcerers, and giants, indoctrinating children in values contrary to Christian beliefs. First, the court applied the Lemon test in rejecting the parents’ claims, saying that a “few stories about witches and goblins” do not violate the secular purpose test. Second, the stories that were offensive to the plaintiff parents were only a small portion of all the readings in the series, and other stories touched on and were consistent with Protestant and Catholic beliefs about Christmas and so forth. Simply because the stories “coincide or harmonize with tenets of some or all religions” does not endorse or enhance a religion but is merely designed to improve the children’s reading skills. Concerning the third leg of the Lemon test, the court found no entanglement simply because a curriculum review committee of the school district had reviewed the series before it was purchased. Further, the court concluded that no coercion existed so as to deprive children of the free exercise of religion. Fleischfresser v. Directors of School District 200, 15 F.3d 680 (7th Cir. 1994).
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Health Education
Freedom of speech and expression ensure that public schools will be open and expansive in the acquisition and purveyance of knowledge. Yet, the type and content of information that may be provided to schoolchildren is not without limitation. Society at large has the right and the obligation to protect children from harmful influences, and the public schools have the power and prerogative to make and enforce judgments about those things that are beneficial or deleterious to the development of youth. Even John Stuart Mill, the great expositor of individual liberty, maintained that liberties that were the rights of adults could not necessarily be indiscriminately assumed to vest in minors. In his essay On Liberty, Mill observed:
It is, perhaps, hardly necessary to say that this doctrine is meant to apply only to human beings in the maturity of their faculties. We are not speaking of children or of young persons below the age which the law may fix as that of manhood or womanhood. Those who are still in a state to require being taken care of by others must be protected against their own actions as well as against external injury.37
The school district can select the substance to be taught and can proscribe inappropriate books, films, or other materials. Required sex education classes provided as a part of a school health curriculum do not violate First Amendment religious freedoms or rights of privacy of parents or children. A Maryland federal district court justified required sex education classes as an important public health measure that outweighed individual rights of privacy, parental control, or religious freedom. The court said: “A domestic society rests . . . upon the healthy, well-rounded growth of young people into full maturity as citizens. . . .”38 Moreover, sex education does not invade the privacy of schoolchildren or parents.39 The New Jersey Supreme Court has upheld a state board of education regulation that requires each school district to develop and implement a family life education program in the public elementary and secondary school curricula. The focus of the program was to be on teaching about human sexuality. The regulation included an “excusal clause” establishing procedures by which a parent could withdraw his or her child if the course conflicted with religious belief or conscience. The court held that the regulation did not violate either the Free Exercise or Establishment Clauses of the First Amendment. Concerning free exercise, the court placed emphasis on the fact that the regulation contained an “excusal” provision. In applying the Establishment Clause, the court pointed out that the regulation does not enhance any particular religious viewpoint, nor does it favor a “secular” view over a “religious” one.40 The federal circuit court in Cornwell dismissed parents’ free exercise argument even though there was no provision for the student to be excused. However, in Medeiros and Smith the courts relied on an “excusal” clause in the regulations to offset the free exercise issue.
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Health Education
Parent Does Not Have a Fundamental Right to Mandate School Curriculum
Leebaert v. Harrington United States Court of Appeals, Second Circuit, 2003. 332 F.3d 134
SACK, Circuit Judge. Plaintiff-Appellant Turk Leebaert (“Leebaert”) argues that his constitutional right to direct the upbringing and education of his child requires the defendants, upon his request, to excuse his minor son, Corky Leebaert, from attending health education classes at a public school administered by the defendants. Leebaert further argues that the right so to excuse his son is, as a matter of constitutional law, “fundamental.” His son may therefore be required to attend classes teaching the health curriculum only if the requirement that he do so withstands constitutional “strict scrutiny” which, Leebaert contends, it does not. The defendants assert to the contrary that their mandatory curriculum must meet only the lower “rational basis” constitutional standard of review because the right that Leebaert asserts is not properly classified as “fundamental.” They also contend—and this Leebaert does not dispute—that required attendance at the health education classes meets the rational basis test. The district court agreed with the defendants, and so do we. We therefore affirm. Connecticut state law sets forth requirements for Connecticut public-school curricula. Subjects that must be “taught by legally qualified teachers” include “health and safety, including, but not limited to, human growth and development, nutrition, first aid, disease prevention, community and consumer health, physical, mental and emotional health, including youth suicide prevention, substance abuse prevention, safety, which may include the dangers of gang membership, and accident prevention.” Conn. Gen. Stat. § 10-16b(a). State law also provides:
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The State Board of Education shall . . . develop curriculum guides to aid local and regional boards of education in developing family life education programs within the public schools. The curriculum guides shall include, but not be limited to, information on developing a curriculum including family planning, human sexuality, parenting, nutrition and the emotional, physical, psychological, hygienic, economic and social aspects of family life, provided the curriculum guides shall not include information pertaining to abortion as an alternative to family planning.
. . . Connecticut law does not, however, require “local or regional board[s] of education to develop or institute such family life education programs.” . . . And it provides that “[n]o student shall be required by any local or regional board of education to participate in any such family life program which may be offered within such public schools.” . . . In addition, Connecticut law provides that “[t]he knowledge, skills and attitudes required to understand and avoid the effects of alcohol, of nicotine or tobacco and of drugs . . . on health, character, citizenship and personality development shall be taught every academic year to pupils in all grades in the public schools.” . . . “The content and scheduling of [this] instruction [is] within the discretion of the local or regional board of education.” . . . Finally, state law provides that: each local and regional board of education shall offer during the regular school day planned, ongoing and systematic instruction on acquired immune deficiency syndrome [“AIDS”], as taught by legally qualified teachers. The content and scheduling of the instruction shall be within the discretion of the local or regional board of education. . . .
The seventh-grade health-education curriculum at the Fairfield Public School System’s Roger Ludlowe Middle School, under the aegis of the defendants, includes instruction on health and safety, alcohol, tobacco and drugs, and family life. The defendants, school superintendent Carol A. Harrington and the Fairfield Board of Education, . . . maintain that only six of the fortyfive days on which the seventh-grade health education classes are taught during the fourth quarter are related to family-life instruction or AIDS education, and that, pursuant to sections 10-16e and 10-19b, the school permits parents, including Leebaert, to excuse their children from
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those six classes by notifying the school principal of their request. The remainder of the health education program at the school is mandatory and the defendants insist that it is not unconstitutional for the school to require Leebaert’s son to attend. . . . On October 22, 1999, Leebaert filed suit in the United States District Court for the District of Connecticut against Harrington, the Fairfield Board of Education, and the Town of Fairfield, pursuant to 42 U.S.C. § 1983, alleging that the defendants deprived him of his right to direct the upbringing and education of his minor child and his right to the free exercise of his religion in violation of the First and Fourteenth Amendments to the United States Constitution. . . . Leebaert requested that the district court issue an order directing the school to withdraw Corky’s “F”; a permanent injunction prohibiting the defendants from giving failing grades to students who have complied with the relevant optout provisions; an injunction ordering the defendants to “further clarify and separate Health and Family Life and their respective curricula” . . . and attorney’s fees. Incorporated into the stipulated facts was an affidavit in which Leebaert testified that matters in the health curriculum conflicted with his sincerely held religious beliefs. . . . In his brief to this Court on appeal, Leebaert identified . . . aspects of the school’s health curriculum as contradicting his sincerely held beliefs [among which were the following]: Defining self-esteem; Grieving and feelings about death . . . ; The definition of love . . . ; The qualities of successful people; Myths and facts about tobacco, marijuana and alcohol; . . . Discussions about the negative consequences of using drugs, marijuana and alcohol; . . . Discussions about tobacco products; . . . Discussion of behaviors which demonstrate respect for self and others; Discussing responses to being sexually harassed; [and] Demonstrating the ability to set personal goals . . .
. . . The district court . . . upheld the mandatory nature of the health curriculum on the ground that rational basis, rather than strict scrutiny, is the appropriate standard of review. It is undisputed that the rational basis test, if applicable, is met: Requiring students to attend
health education classes serves a legitimate state interest and is reasonably related to that interest. Leebaert appeals. . . . Leebaert does not contest defendants’ position that the mandatory health curriculum would pass rational basis review. There is “a ‘reasonable fit’ between the governmental purpose,” . . . here, promoting the health and welfare of children, “and the means chosen to advance that purpose,” here, requiring children to attend health education classes. Leebaert argues instead that to pass constitutional muster, the mandatory nature of the curriculum must withstand strict scrutiny—it must be narrowly tailored to meet a compelling state interest, . . . —and that it does not do so. . . . “[T]he touchstone of due process is protection of the individual against arbitrary action of government.” . . . “While due process protection in the substantive sense limits what the government may do in both its legislative and its executive capacities, criteria to identify what is fatally arbitrary differ depending on whether it is legislation or a specific act of a governmental officer that is at issue.” . . . In assessing whether a government regulation . . . impinges on a substantive due process right, the first step is to determine whether the asserted right is “fundamental.” “Rights are fundamental when they are implicit in the concept of ordered liberty, or deeply rooted in this Nation’s history and tradition.” . . . Where the right infringed is fundamental, strict scrutiny is applied to the challenged governmental regulation. . . . “Where [, however,] the claimed right is not fundamental, the governmental regulation need only be reasonably related to a legitimate state objective” to survive constitutional review. . . . The question before us, then, is whether Leebaert’s asserted right—the right to excuse his son from mandatory public school classes—is fundamental. Leebaert argues that it is, asserting that it stems from a pair of cases decided in the first quarter of the twentieth century. . . . Our conclusion that the plaintiff enjoys no such fundamental right is consistent with our decision in Immediato, supra. There, we upheld a public school’s mandatory community service program against a parental challenge that it violated the parents’ constitutional right to direct the
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Health Education
upbringing and education of their children. . . . We concluded that where “parents seek . . . to exempt their child from an educational requirement . . . rational basis review applies.” . . . We similarly conclude here that the defendants’ mandatory health curriculum must withstand no more than rational basis review to pass constitutional muster, which concededly it does. . . . Leebaert argues that his claim, based on the interests of parenthood combined with a free exercise claim, is analogous to that of the Amish parents in Yoder. But the Yoder Court took pains explicitly to limit its holding to “a free exercise claim of the nature revealed by this record,” . . . “one that probably few other religious groups or sects could make,” . . . [a]ided by a history of three centuries as an identifiable religious sect and a long history as a successful and self-sufficient segment of American society, the Amish . . . convincingly demonstrated the sincerity of their religious beliefs, the interrelationship of belief with their mode of life, the vital role that belief and daily conduct play in the continued survival of Old Order Amish communities and their religious organization, and the hazards presented by the State’s enforcement of a statute generally valid as to others.
. . . This threat to the Amish community’s way of life, posed by a compulsory school attendance statute, was central to the holding in Yoder. We have no reason to doubt either Leebaert’s sincerity or the depth of his convictions. But because of the comparative breadth of the plaintiffs’ claim in Yoder, we do not think that Leebaert’s free exercise claim is governed by that decision: He has not alleged that his community’s entire way of life is threatened by Corky’s participation in the mandatory health curriculum. Leebaert does not assert that there is an irreconcilable Yoder-like clash between the essence of Leebaert’s religious culture and the mandatory health curriculum that he challenges. Leebaert asserts that the mandatory health curriculum conflicts with his belief that “drugs and tobacco are [not] proper subjects that I want my son’s school to teach” and his view that “sex before marriage is . . . something I do not want my sons to be involved in.” . . . Leebaert’s “free exercise claim is [thus] qualitatively distinguishable from that alleged in Yoder.” . . . We affirm the judgment of the district court.
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School Instructional Materials That Seek to Reduce Sexual Orientation Prejudices Do Not Deny Religious Freedom and Due Process Rights of Students and Parents.
Parker v. Hurley United States Court of Appeals, First Circuit, 2008. 514 F.3d 87, cert. denied 229 S. Ct. 56 (2008).
LYNCH, Circuit Judge. Two sets of parents, whose religious beliefs are offended by gay marriage and homosexuality, sued the Lexington, Massachusetts, school district in which their young children are enrolled. They assert that they must be given prior notice by the school and the opportunity to exempt their young children from exposure to books they find religiously repugnant. Plaintiffs assert violations of their own and their children’s rights under the Free Exercise Clause and their substantive parental and privacy due process rights under the U.S. Constitution. The Parkers object to their child being presented in kindergarten and first grade with two books that portray diverse families, including families in which both parents are of the same gender. The Wirthlins object to a second-grade teacher’s reading to their son’s class a book that depicts and celebrates a gay marriage. The parents do not challenge the use of these books as part of a nondiscrimination curriculum in the public schools, but challenge the school district’s refusal to provide them with prior notice and to allow for exemption from such instruction. They ask for relief until their children are in seventh grade. Massachusetts does have a statute that requires parents be given notice and the opportunity to exempt their children from curriculum which primarily involves human sexual education or human sexuality issues. Mass. Gen. Laws, ch. 71, § 32A. The school system has declined to apply this statutory exemption to these plaintiffs on the basis that the materials do not primarily
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involve human sexual education or human sexuality issues. The U.S. District Court dismissed plaintiffs’ complaint for failure to state a federal constitutional claim upon which relief could be granted. . . . In addition to the complaint, we consider the three books plaintiffs find objectionable. We also take notice of the statewide curricular standards of the Commonwealth of Massachusetts and start with those to put this dispute in context. . . . The Commonwealth of Massachusetts enacted a comprehensive education reform bill in 1993, requiring the State Board of Education (SBE) to establish academic standards for core subjects. Mass. Gen. Laws ch. 69, § 1D. The statute mandates that the standards “be designed to inculcate respect for the cultural, ethnic and racial diversity of the commonwealth.” Further, “[a]cademic standards shall be designed to avoid perpetuating gender, cultural, ethnic or racial stereotypes.” . . . The statute does not specify sexual orientation in these lists. . . . The Learning Standard for elementary school grades under the Family Life component states that children should be able to “[d]escribe different types of families.” . . . The associated Learning Standard for pre-kindergarten through grade 5 recommends that children be able to “[d]escribe the concepts of prejudice and discrimination.” It is not until grades 6–8 that the Learning Standards under this component address “the detrimental effect of prejudice (such as prejudice on the basis of race, gender, sexual orientation, class, or religion) on individual relationships and society as a whole.” There is also a Reproduction/Sexuality component under the Physical Health Strand. Within that component, the Learning Standards provide that by grade 5, students should be able to “[d]efine sexual orientation using the correct terminology (such as heterosexual, and gay and lesbian).” These statewide academic standards do not purport to select particular instructional materials, but only to be a guide to assist others in that selection. Thus, there is no statewide regulation or policy providing for the use of the particular texts in dispute here. By statute, the actual selection of books is the responsibility of a school’s principal, with the approval of the superintendent of schools. . . .
Plaintiffs allege in their complaint that Lexington school officials began integrating books like these into their elementary school’s curriculum at the behest of gay rights advocates. In 1996, the Massachusetts legislature adopted a parental notification statute to be implemented by schools starting with the 1997–1998 school year. Mass. Gen. Laws ch. 71, § 32A. Section 32A requires school districts to provide parents with notice of and an opportunity to exempt their children from “curriculum which primarily involves human sexual education or human sexuality issues.” . . . Schools must make the relevant curricular materials available for parents to review, though they do not necessarily have to allow parents to observe the classes. The statute mandates that the Department of Education promulgate regulations for resolving any disputes arising under section 32A, which the Department has done. On November 18, 2003, a divided Supreme Judicial Court of Massachusetts held, in Goodridge v. Department of Public Health, 440 Mass. 309, 798 N.E.2d 941 (2003), that the state constitution mandates the recognition of same-sex marriage. A later effort to reverse this decision through the mechanism of a constitutional convention and a popular vote failed. David and Tonia Parker ’s sons, Jacob and Joshua Parker, and Joseph and Robin Wirthlin’s son, Joseph Robert Wirthlin, Jr., are students at Estabrook Elementary School in Lexington, Massachusetts. Both families assert that they are devout Judeo-Christians and that a core belief of their religion is that homosexual behavior and gay marriage are immoral and violate God’s law. In January 2005, when Jacob Parker (“Jacob”) was in kindergarten, he brought home a “Diversity Book Bag.” This included a picture book, Who’s in a Family? which depicted different families, including single-parent families, an extended family, interracial families, animal families, a family without children, and—to the concern of the Parkers—a family with two dads and a family with two moms. The book concludes by answering the question, “Who’s in a family?”: “The people who love you the most!” The book says nothing about marriage. The Parkers were concerned that this book was part of an effort by the public schools “to indoctrinate young children into the concept
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Health Education
that homosexuality and homosexual relationships or marriage are moral and acceptable behavior.” Such an effort, they feared, would require their sons to affirm a belief inconsistent with their religion. . . . As the 2005–2006 school year began, Paul Ash (“Ash”), the current Superintendent, released a public statement explaining the school district’s position that it would not provide parental notification for “discussions, activities, or materials that simply reference same-gender parents or that otherwise recognize the existence of differences in sexual orientation.” When Jacob entered first grade that fall, his classroom’s book collection included Who’s in a Family? as well as Molly’s Family, a picture book about a girl who is at first made to feel embarrassed by a classmate because she has both a mommy and a mama but then learns that families can come in many different varieties. In December 2005, the Parkers repeated their request for advance notice, which Superintendent Ash again denied. We turn to the other plaintiff family. In March 2006, an Estabrook teacher read aloud King and King to her second-grade class, which included Joseph Robert Wirthlin, Jr. (“Joey”). This picture book tells the story of a prince, ordered by his mother to get married, who first rejects several princesses only to fall in love with another prince. A wedding scene between the two princes is depicted. The last page of the book shows the two princes kissing, but with a red heart superimposed over their mouths. There is no allegation in the complaint that the teacher further discussed the book with the class. That evening, Joey told his parents about the book; his parents described him as “agitated” and remembered him calling the book “so silly.” Eventually the Wirthlins were able to secure a meeting with the teacher and Jay on April 6, 2006, to object to what they considered to be indoctrination of their son about gay marriage in contravention of their religious beliefs. Jay reiterated the school district’s position that no prior notice or exemption would be given. On April 27, 2006, the Parkers and the Wirthlins filed suit on behalf of themselves and their children in federal district court against Hurley, Ash, Jay, and Joey Wirthlin’s teacher, as well as the town of Lexington, the members of its school board, and other school district administrators.
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The complaint alleges that the public schools are systematically indoctrinating the Parkers’ and the Wirthlins’ young children contrary to the parents’ religious beliefs and that the defendants held “a specific intention to denigrate the [families’] sincere and deeply held faith.” . . . The plaintiffs argue that their ability to influence their young children toward their family religious views has been undercut in several respects. First, they believe their children are too young to be introduced to the topic of gay marriage. They also point to the important influence teachers have on this age group. They fear their own inability as parents to counter the school’s approval of gay marriage, particularly if parents are given no notice that such curricular materials are in use. As for the children, the parents fear that they are “essentially” required “to affirm a belief inconsistent with and prohibited by their religion.” The parents assert it is ironic, and unconstitutional under the Free Exercise Clause, for a public school system to show such intolerance towards their own religious beliefs in the name of tolerance. . . . Our review of the district court’s order of dismissal is de novo. . . . We affirm the order of dismissal, albeit on grounds different from the district court’s reasoning. . . . While we accept as true plaintiffs’ assertion that their sincerely held religious beliefs were deeply offended, we find that they have not described a constitutional burden on their rights, or on those of their children. . . . [The] standard constitutional threshold question . . . is “whether the plaintiff’s free exercise is interfered with at all.” . . . In this case there is no pleading of a constitutionally significant burden on plaintiffs’ rights. . . . Generally, the fundamental parental control/ free exercise claims regarding public schools have fallen into several types of situations: claims that failure to provide benefits given to public school students violates free exercise rights, claims that plaintiffs should not be subjected to compulsory education, demands for removal of offensive material from the curriculum, and, as here, claims that there is a constitutional right to exemption from religiously offensive material. . . . In the present case, the plaintiffs claim that the exposure of their children, at these young ages and in this setting, to ways of life contrary to the parents’ religious beliefs violates their ability to
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direct the religious upbringing of their children. We try to identify the categories of harms alleged. The parents do not allege coercion in the form of a direct interference with their religious beliefs, nor of compulsion in the form of punishment for their beliefs, as in Yoder. Nor do they allege the denial of benefits. Further, plaintiffs do not allege that the mere listening to a book being read violated any religious duty on the part of the child. There is no claim that as a condition of attendance at the public schools, the defendants have forced plaintiffs—either the parents or the children—to violate their religious beliefs. In sum there is no claim of direct coercion. The heart of the plaintiffs’ free exercise claim is a claim of “indoctrination”: that the state has put pressure on their children to endorse an affirmative view of gay marriage and has thus undercut the parents’ efforts to inculcate their children with their own opposing religious views. The Supreme Court, we believe, has never utilized an indoctrination test under the Free Exercise Clause, much less in the public school context. The closest it has come is Barnette, a free speech case that implicated free exercise interests and which Smith included in its hybrid case discussion. In Barnette, the Court held that the state could not coerce acquiescence through compelled statements of belief, such as the mandatory recital of the pledge of allegiance in public schools. It did not hold that the state could not attempt to inculcate values by instruction, and in fact carefully distinguished the two approaches. We do not address whether or not an indoctrination theory under the Free Exercise Clause is sound. Plaintiffs’ pleadings do not establish a viable case of indoctrination, even assuming that extreme indoctrination can be a form of coercion. First, as to the parents’ free exercise rights, the mere fact that a child is exposed on occasion in public school to a concept offensive to a parent’s religious belief does not inhibit the parent from instructing the child differently. A parent whose “child is exposed to sensitive topics or information [at school] remains free to discuss these matters and to place them in the family’s moral or religious context, or to supplement the information with more appropriate materials.” . . . The parents here did in fact have notice, if not prior notice, of the books and of the school’s
overall intent to promote toleration of same-sex marriage, and they retained their ability to discuss the material and subject matter with their children. Our outcome does not turn, however, on whether the parents had notice. Turning to the children’s free exercise rights, we cannot see how Jacob’s free exercise right was burdened at all: two books were made available to him, but he was never required to read them or have them read to him. Further, these books do not endorse gay marriage or homosexuality, or even address these topics explicitly, but merely describe how other children might come from families that look different from one’s own. There is no free exercise right to be free from any reference in public elementary schools to the existence of families in which the parents are of different gender combinations. Joey has a more significant claim, both because he was required to sit through a classroom reading of King and King and because that book affirmatively endorses homosexuality and gay marriage. It is a fair inference that the reading of King and King was precisely intended to influence the listening children toward tolerance of gay marriage. That was the point of why that book was chosen and used. Even assuming there is a continuum along which an intent to influence could become an attempt to indoctrinate, however, this case is firmly on the influence-towardtolerance end. There is no evidence of systemic indoctrination. There is no allegation that Joey was asked to affirm gay marriage. Requiring a student to read a particular book is generally not coercive of free exercise rights. Public schools are not obliged to shield individual students from ideas which potentially are religiously offensive, particularly when the school imposes no requirement that the student agree with or affirm those ideas, or even participate in discussions about them. “[P]ublic schools are not required to delete from the curriculum all materials that may offend any religious sensibility.” The reading of King and King was not instruction in religion or religious beliefs. . . . On the facts, there is no viable claim of “indoctrination” here. Without suggesting that such showings would suffice to establish a claim of indoctrination, we note the plaintiffs’ children were not forced to read the books on pain of suspension. Nor were they subject to a constant stream
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Evolution versus Creationism
of like materials. There is no allegation here of a formalized curriculum requiring students to read many books affirming gay marriage. . . . The reading by a teacher of one book, or even three, and even if to a young and impressionable child, does not constitute “indoctrination.” Because plaintiffs do not allege facts that give rise to claims of constitutional magnitude, the district court did not err in granting defendants’ motion to dismiss the claims under the U.S. Constitution. Public schools often walk a tightrope between the many competing constitutional demands made by parents, students, teachers, and the schools’ other constituents. . . . The balance the school struck here does not offend the Free Exercise or Due Process Clauses of the U.S. Constitution. We do not suggest that the school’s choice of books for young students has not deeply offended the plaintiffs’ sincerely held religious beliefs. If the school system has been insufficiently sensitive to such religious beliefs, the plaintiffs may seek recourse to the normal political processes for change in the town and state. They are not entitled to a federal judicial remedy under the U.S. Constitution. We affirm the district court’s dismissal. . . . Affirmed.
CASE NOTE In Zykan, the U.S. Court of Appeals, Seventh Circuit, has held that courts will not intervene in school matters unless there is shown to be a “flagrant abuse of discretion” on the part of school officials. This court said: [C]omplaints filed by secondary school students to contest the educational decision of local authorities are sometimes cognizable but generally must cross a relatively high threshold before entering upon the field of a constitutional claim. . . . [N]othing in the Constitution permits the courts to interfere with local discretion until local authorities begin to substitute rigid and exclusive indoctrination for the right to make pedagogic choices regarding matters of legitimate dispute.
The court went on to deny the plaintiffs’ claim because they failed to prove a “flagrant abuse of discretion on the part of the defendants.” Thus, the Seventh Circuit has established and articulated what may be called a “flagrant abuse of
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discretion” standard of review. Zykan v. Warsaw Community School Corp., 631 F.2d 1300, 1306 (7th Cir. 1980).
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Evolution versus Creationism
Tennyson once remarked while looking through a microscope, “Strange that these wonders should draw some men to God and repel others.”41 The ageless, inevitable, and perhaps the most human debates of humankind, those pitting science against theology, observation against belief, knowledge against superstition, have persisted down through the centuries and remain today almost uninterrupted. Due to advancements in learning, the world is today less reliant on augurs and oracles to exorcise the influence of witches, demons, and goblins. As science advances and the unknown becomes known, the field of debate narrows, but the intensity and vehemence of the proponents abide. (The poor and less educated are usually more susceptible to “the intellectual miasma”42 that confuses and blights the pursuit of worthwhile knowledge.43) All are aware of the Galileo incident, perhaps the most frequently cited example of religion dampening the scientific quest and stifling the ardor for new knowledge. Galileo, of course, proved that Copernicus’s heliocentric theories condemned by the Catholic Church were correct and was branded as a heretic for his efforts about a century after Copernicus. In 1633, Galileo stood trial in Rome for heresy and was convicted by the Holy Office of the Inquisition for “having held and believed the doctrine which is false and contrary to the Sacred and Divine Scriptures, that the sun is the center of the world and does not move from east to west and that the Earth moves and is not the center of the world.” The tribunal sentenced Galileo to formal “imprisonment in this Holy Office at our pleasure.”44 Subsequently, Galileo remained under house arrest in his own home for the remainder of his life. It was not until 1992 that the Catholic Church acknowledged that Galileo was right after all, that the sun really does not revolve around the earth. A grand mosaic of such events could be constructed from similar, but less famous events throughout history where religious revelation substituted for verifiable facts
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and knowledge. Indeed, the preemption of quantifiable physical proofs by religiously revealed truths’ contrived answers for complex questions regarding natural phenomenon undoubtedly was a principal contributor to the paucity and even the retrogression of learning that caused the Dark Ages and stagnated human progress for a thousand years. To our generation, the controversy over Darwin’s theory of evolution and the publication of his The Origin of Species is nearly as current as was Galileo’s verification of Copernicus’s theories. The potential for escalated controversy between scientists and religious fundamentalism was already in play before Darwin published Origin. In fact, Darwin’s due concern for an anticipated widespread negative reaction to his research by the religious community led him to solicit advice from various learned persons of the day, one of whom, fearing the impending uproar, responded with the politically sage but scientifically questionable advice, to “scrap the Origin and write instead about pigeons.”45 Yet, as a scientist, Darwin clearly understood the restrictive effects on the advancement of human knowledge that resulted from nonscientific solutions conjured by religious dogma to explain everything in nature. In the Origin, Darwin said: “Great is the power of steady misinterpretation; but the history of science shows that fortunately this power does not long endure.”46 Actually, for two centuries before Darwin’s Origin, the certainty of scripture had been under stress with the steady increase of scientific inquiry. As scientific research became more sophisticated, the struggle between science and religion intensified, even in light of the fact that two of the greatest intellectual lights of the seventeenth century, Robert Boyle and Isaac Newton, had resolved the conflict to their own satisfaction in a way that was well summarized much earlier in a poignant observation by a Catholic Church official, who in sympathy with Galileo observed that “the Bible was a book about how one goes to Heaven, not how Heaven goes.”47 Boyle, of Boyle’s Law fame, maintaining throughout his life a great personal piety, justified his own extensive scientific research, some of which tended to refute scripture, by pointing out that God permitted scientific inquiry. Boyle said, “If the omniscient author of nature knew that the study of his works tends to make men disbelieve his
Being or Attributes, he would not have given them so many invitations to study and contemplate Nature.”48 Newton, who died in 1727, saw no conflict between religion and his research into gravity and light, arguing that God “governs all things, not as the soul of the world; but as Lord over all.” To Newton, God was a “powerful, ever-living Agent” who by his magnificence prevents stars from falling and by “miraculous means regulates the solar system.”49 According to Newton, the laws of nature themselves are the creation of God.50 Later, in 1730, Voltaire commented that he had not seen a Newtonian scientist yet “who is not a theist in the strictest sense of the word.”51 Although some philosophers disagreed with Newton, most scientists of the pre-Enlightenment and Enlightenment era, the eighteenth century, tended to agree with Boyle and Newton.52 Yet during that period, there was a growing secularization that gained momentum with new research and knowledge. Increasingly it was thought that Christian dogma was contrary to reason and rationality and that the physical world and the spiritual world could not be reconciled. From this point in history, science became the central ingredient of a more progressive and enlightened world. We remain in a period of absorption and emerging proofs of evolution. The famous John Scopes “monkey trial” in Dayton, Tennessee, in 1925 was probably a high point in America in the rancor that followed the Origin.53 In the Scopes trial a technical victory was won by William Jennings Bryan for the state, but Clarence Darrow, the great Chicago trial lawyer, gained a popular victory in his devastating cross-examination of Bryan. Although the statute that made the teaching of evolution in public schools in Tennessee a criminal offense was not overturned, it was largely ignored and went unenforced after John Scopes was convicted. Seven decades after the Scopes trial, the Tennessee legislature continues in its attempts to suppress the teaching of evolution. Books are published54 and vigorous battles are waged in many other state legislative halls and school board rooms over restraint of the teaching of the theory of evolution along with reassertion of biblical creationism into the curriculum of public schools. In 1968, an anti-evolution statute in Arkansas was challenged as violative of the First Amendment. 55 The U.S. Supreme Court found in the
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Evolution versus Creationism
statute implicit state support of the Christian doctrine of creation from the Book of Genesis, and the Court declared the law unconstitutional. In a later version of the issue, the governor of Arkansas signed into law in 1981 a bill that required balanced treatment for creation science and evolution in the public schools. Proponents of the new statute maintained that not only was creationism a science, but that Darwin’s theory of evolution actually constituted a kind of obverse religion, secular humanism, and, as such, its use in the classroom was tantamount to teaching an atheistic religion in public schools. The statute was promptly challenged as violative of the religion provisions of the First Amendment. The State of Arkansas defended by maintaining, first, that a literal interpretation of Genesis did not necessarily mean that creation science was religious; second, that the state’s reference to creation did not imply that the creation was caused by a supreme being or God; and, third, that to teach in public schools about the concept of a creator was not religious per se. The federal court in McLean v. Arkansas Board of Education56 held against the state on all counts. The judge observed that creation science was not a science at all, but, instead, a religious doctrine. For the state to impose such a belief on the youth in public schools violated the First Amendment.
FIVE CHARACTERISTICS OF SCIENCE 1) It is guided by natural law. 2) It explains by reference to natural laws. 3) Its theories can be tested in the empirical world. 4) Its conclusions are tentative. 5) It is falsifiable. —District Judge Overton, McLean v. Arkansas
In January 1985, a federal district judge held a Louisiana creation statute, similar to Arkansas, unconstitutional because it “promotes the beliefs of some theistic sects to the detriment of others.” According to the judge, the so-called balanced treatment statute removed the state from a position of neutrality toward advancing a particular religious belief. This case, Edwards v. Aguillard,57 was appealed to the U.S. Supreme Court, and the Louisiana statute was held to be unconstitutional. The Court observed that the
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true legislative intent was to impose into the public schools the teaching of creationism as a religious doctrine, and the statute was therefore unconstitutional. A great deal of activity has taken place in state legislatures seeking to diminish the teaching of evolution and supporting the teaching of creationism. Legislatures in several states have attempted to pass legislation to discredit the theory of evolution. The latest attempt to insert creationism into the classroom is what is known as the Theory of Intelligent Design. The theory is that all of the complex natural phenomena could not have happened randomly; there had to be a design and a designer. Since the concept of the designer does not require a biblical interpretation, its advocates believe that it could possibly pass constitutional muster. Some states have proposed that science standards be rewritten to include requiring teachers to compare and contrast the design hypothesis with evidence that supports evolution. The efforts of Christian Fundamentalists to insert the biblical Book of Genesis’ explanation into the teaching of science in the public school classroom evolved in stages from direct state prohibitions to teaching Darwinian evolution, to teaching creation as a science, to balanced treatment of both creationism and evolution, and finally to the latest intelligent design movement (IDM). In a high-profile case in Pennsylvania, Kitzmiller v. Dover Area School District,58 a federal court, in a strongly-worded opinion, struck down an attempt by a local school board to insert the teaching of intelligent design into the classroom. Evidence in the case indicated how the progenitors of intelligent design had adapted their wording and tactics immediately after the U.S. Supreme Court decision in Edwards v. Aguillard.59 Edwards had struck down a legislative attempt to give “balanced-treatment” to “creation science” along with evolution in public school science classes. The federal court in Pennsylvania said that: “The weight of the evidence clearly demonstrates . . . that the systemic change from ‘creation’ to ‘intelligent design’ occurred sometime in 1987, after the Supreme Court’s important Edwards decision. This compelling evidence strongly supports plaintiff’s assertion that ID is creationism relabeled.”60 The defendant, Dover School Board, had sought to discredit Darwinian evolution with a school-published disclaimer that would have led a reasonable observer to conclude that creationism was truth
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and that evolution was not science, but rather an “opinion” or a “hunch” that is full of gaps and uncertainties.61 The court in a stinging rebuke of the Dover School Board observed that “the citizens of the Dover area were poorly served by the members of the Board who voted for the ID policy.” “It is ironic (the court said) that several of these individuals, who so staunchly and proudly touted their religious convictions in public, would time and again lie to cover their tracks and disguise the real purpose behind the ID policy,”62 the real purpose being to discredit evolution and to place the imprimatur of the school board behind the teaching of creationism in science classes. In concluding that ID is not science, the court explained: We find that ID fails on three different levels, any one of which is sufficient to preclude a determination that ID is science. They are: (1) ID violates centuries-old ground rules of science by invoking and permitting supernatural causation; (2) the argument of irreducible complexity, central to ID, employs the same flawed and illogical contrived dualism that doomed creation science in the 1980s; and (3) ID’s negative attacks on evolution have been refuted by the scientific community.63
The intelligent design theory was revived from the work of eighteenth-century theologian William Paley, who wrote a well-known treatise in 1802 entitled Natural Theology—or Evidence of the Existence and Attributes of the Deity Collected from the Appearances of Nature,64 an intellectual exposition of the “Argument for Design,” the argument for the existence of a God.65 Among Paley’s observations was his famous watchmaker metaphor, in which he said that if someone found a watch with intricate design and precision on the heath, would it be logical to assume that it had always been there? Or would one conclude: that the watch must have had a maker: that there must have existed, at some time, and at some place or other, an artificer or artificers who formed it for the purpose which we find it actually to answer; who comprehended its construction and designed its use.66
Paley then asks what the beginning was of something as intricate and delicate as the human eye, and he concludes that the eye must have had a designer.67 Paley thereby attempts to explain the creation as the work of God, the watchmaker. This is the “intelligent design theory.”
On the other hand, Darwin’s natural selection theory posits a great length of time in which the earth has existed that is difficult for some to comprehend, in which natural selection gradually formed and molded all living matter. Dawkins, the eminent Oxford scientist and ardent follower of Darwin, has observed that all the scientific evidence supports “[n]atural selection, the blind, unconscious, automatic process which Darwin described. . . . It has no vision, no foresight, no sight at all. If it [natural selection] can be said to play the role of watchmaker in nature, it is the blind watchmaker.”68 The Cambridge mathematician Stephen Hawking best captured the essence of the issue in one of his lectures when he posed the question, “How can our finite minds comprehend an infinite universe?”69 The danger, of course, lies in further restricting the reach of the limited human intellectual capacity with external beliefs that impose constraints on the human being already limited by a finite mind.
Statute Forbidding the Teaching of Evolution Is Unconstitutional
Epperson v. State of Arkansas Supreme Court of the United States, 1968. 393 U.S. 97, 89 S. Ct. 266.
Mr. Justice FORTAS delivered the opinion of the Court. This appeal challenges the constitutionality of the “anti-evolution” statute which the State of Arkansas adopted in 1928 to prohibit the teaching in its public schools and universities of the theory that man evolved from other species of life. . . . The Arkansas law makes it unlawful for a teacher in any state-supported school or university “to teach the theory or doctrine that mankind ascended or descended from a lower order of animals,” or “to adopt or use in any such institution a textbook that teaches” this theory. Violation is a misdemeanor and subjects the violator to dismissal from his position.
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Evolution versus Creationism
The present case concerns the teaching of biology in a high school in Little Rock. According to the testimony, until the events here in litigation, the official textbook furnished for the high school biology course did not have a section on the Darwinian Theory. Then, for the academic year 1965–1966, the school administration, on recommendation of the teachers of biology in the school system, adopted and prescribed a textbook which contained a chapter setting forth “the theory about the origin . . . of man from a lower form of animal.” Susan Epperson, a young woman who graduated from Arkansas’ school system and then obtained her master’s degree in zoology at the University of Illinois, was employed by the Little Rock school system in the fall of 1964 to teach tenth grade biology at Central High School. At the start of the next academic year, 1965, she was confronted by the new textbook (which one surmises from the record was not unwelcome to her). She faced at least a literal dilemma because she was supposed to use the new textbook for classroom instruction and presumably to teach the statutorily condemned chapter; but to do so would be a criminal offense and subject her to dismissal. . . . Only Arkansas and Mississippi have such “antievolution” or “monkey” laws on their books. There is no record of any prosecutions in Arkansas under its statute. It is possible that the statute is presently more of a curiosity than a vital fact of life in these States. Nevertheless, the present case was brought, the appeal as of right is properly here, and it is our duty to decide the issues presented. At the outset, it is urged upon us that the challenged statute is vague and uncertain and therefore within the condemnation of the Due Process Clause of the Fourteenth Amendment. The contention that the Act is vague and uncertain is supported by language in the brief opinion of Arkansas’ Supreme Court. That court, perhaps reflecting the discomfort which the statute’s quixotic prohibition necessarily engenders in the modern mind, stated that it “expresses no opinion” as to whether the Act prohibits “explanation” of the theory of evolution or merely forbids “teaching that the theory is true.” Regardless of this uncertainty, the court held that the statute is constitutional. On the other hand, counsel for the State, in oral argument in this Court, candidly stated that,
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despite the State Supreme Court’s equivocation Arkansas would interpret the statute “to mean that to make a student aware of the theory . . . just to teach that there was such a theory” would be grounds for dismissal and for prosecution under the statute, and he said “that the Supreme Court of Arkansas’ opinion should be interpreted in that manner.” He said: “If Mrs. Epperson would tell her students that ‘Here is Darwin’s theory, that man ascended or descended from a lower form of being,’ then I think she would be under this statute liable for prosecution.” In any event, we do not rest our decision upon the asserted vagueness of the statute. On either interpretation of its language, Arkansas’ statute cannot stand. It is of no moment whether the law is deemed to prohibit mention of Darwin’s theory, or to forbid any or all of the infinite varieties of communication embraced within the term “teaching.” Under either interpretation, the law must be stricken because of its conflict with the constitutional prohibition of state laws respecting an establishment of religion or prohibiting the free exercise thereof. The overriding fact is that Arkansas’ law selects from the body of knowledge a particular segment which it proscribes for the sole reason that it is deemed to conflict with a particular religious doctrine; that is, with a particular interpretation of the Book of Genesis by a particular religious group. . . . Judicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint. Our courts, however, have not failed to apply the First Amendment’s mandate in our educational system where essential to safeguard the fundamental values of freedom of speech and inquiry and of belief. By and large, public education in our Nation is committed to the control of state and local authorities. Courts do not and cannot intervene in the resolution of conflicts which arise in the daily operation of school systems and which do not directly and sharply implicate basic constitutional values. On the other hand, “[t]he vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools,” Shelton v. Tucker, 364 U.S. 479, 487, 81 S. Ct. 247, 251 (1960). As this Court said in Keyishian v. Board of Regents, the First Amendment “does not tolerate laws that cast a pall of orthodoxy over the classroom.” 385 U.S. 589, 603, 87 S. Ct. 675, 683(1967). . . .
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There is and can be no doubt that the First Amendment does not permit the State to require that teaching and learning must be tailored to the principles or prohibitions of any religious sect or dogma. . . . In the present case, there can be no doubt that Arkansas has sought to prevent its teachers from discussing the theory of evolution because it is contrary to the belief of some that the Book of Genesis must be the exclusive source of doctrine as to the origin of man. No suggestion has been made that Arkansas’ law may be justified by considerations of state policy other than the religious views of some of its citizens. It is clear that fundamentalist sectarian conviction was and is the law’s reason for existence. Its antecedent, Tennessee’s “monkey law,” candidly stated its purpose: to make it unlawful “to teach any theory that denies the story of the Divine Creation of man as taught in the Bible, and to teach instead that man has descended from a lower order of animals.” Perhaps the sensational publicity attendant upon the Scopes trial induced Arkansas to adopt less explicit language. It eliminated Tennessee’s reference to “the story of the Divine Creation of man” as taught in the Bible, but there is no doubt that the motivation for the law was the same: to suppress the teaching of the theory which it was thought “denied” the divine creation of man. . . . The judgment of the Supreme Court of Arkansas is reversed.
Louisiana Statute Requiring Balanced Treatment of Creation Science and Evolution Science Violates First Amendment
Edwards v. Aguillard Supreme Court of the United States, 1987. 482 U.S. 578, 107 S. Ct. 2573.
Justice BRENNAN delivered the opinion of the Court. The question for decision is whether Louisiana’s “Balanced Treatment for Creation Science and Evolution-Science in Public School Instruction” Act (Creationism Act), La. Rev. Stat. Ann.
§§ 17:286.1-17:286.7 (West 1982), is facially invalid as violative of the Establishment Clause of the First Amendment. The Creationism Act forbids the teaching of the theory of evolution in public schools unless accompanied by instruction in “creation science.” § 17:286.4A. No school is required to teach evolution or creation science. If either is taught, however, the other must also be taught. The theories of evolution and creation science are statutorily defined as “the scientific evidences for [creation or evolution] and inferences from those scientific evidences.” . . . Appellees, who include parents of children attending Louisiana public schools, Louisiana teachers, and religious leaders, challenged the constitutionality of the Act in District Court, seeking an injunction and declaratory relief. . . . The Establishment Clause forbids the enactment of any law “respecting an establishment of religion.” The Court has applied a three-pronged test to determine whether legislation comports with the Establishment Clause. First, the legislature must have adopted the law with a secular purpose. Second, the statute’s principal or primary effect must be one that neither advances nor inhibits religion. Third, the statute must not result in an excessive entanglement of government with religion. . . . State action violates the Establishment Clause if it fails to satisfy any of these prongs. In this case, the Court must determine whether the Establishment Clause was violated in the special context of the public elementary and secondary school system. States and local school boards are generally afforded considerable discretion in operating public schools. . . . The Court has been particularly vigilant in monitoring compliance with the Establishment Clause in elementary and secondary schools. Families entrust public schools with the education of their children, but condition their trust on the understanding that the classroom will not purposely be used to advance religious views that may conflict with the private beliefs of the student and his or her family. Students in such institutions are impressionable and their attendance is involuntary. . . . The State exerts great authority and coercive power through mandatory
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Evolution versus Creationism
attendance requirements, and because of the students’ emulation of teachers as role models and the children’s susceptibility to peer pressure. . . . Furthermore, “[t]he public school is at once the symbol of our democracy and the most pervasive means for promoting our common destiny. In no activity of the State is it more vital to keep out divisive forces than in its schools. . . .” Consequently, the Court has been required often to invalidate statutes which advance religion in public elementary and secondary schools. . . . Therefore, in employing the three-pronged Lemon test, we must do so mindful of the particular concerns that arise in the context of public elementary and secondary schools. We now turn to the evaluation of the Act under the Lemon test. Lemon’s first prong focuses on the purpose that animated adoption of the Act. “The purpose prong of the Lemon test asks whether government’s actual purpose is to endorse or disapprove of religion.” . . . A governmental intention to promote religion is clear when the State enacts a law to serve a religious purpose. This intention may be evidenced by promotion of religion in general, . . . or by advancement of a particular religious belief. . . . If the law was enacted for the purpose of endorsing religion, “no consideration of the second or third criteria is necessary.” . . . In this case, the petitioners have identified no clear secular purpose for the Louisiana Act. True, the Act’s stated purpose is to protect academic freedom. La. Rev. Stat. Ann. § 17:286.2 (West 1982). This phrase might, in common parlance, be understood as referring to enhancing the freedom of teachers to teach what they will. The Court of Appeals, however, correctly concluded that the Act was not designed to further that goal. We find no merit in the State’s argument that the “legislature may not [have] use[d] the terms ‘academic freedom’ in the correct legal sense. They might have [had] in mind, instead, a basic concept of fairness; teaching all of the evidence.” . . . Even if “academic freedom” is read to mean “teaching all of the evidence” with respect to the origin of human beings, the Act does not further this purpose. The goal of providing a more comprehensive science curriculum is not furthered either by outlawing the teaching of evolution or by requiring the teaching of creation science.
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While the Court is normally deferential to a State’s articulation of a secular purpose, it is required that the statement of such purpose be sincere and not a sham. . . . It is clear from the legislative history that the purpose of the legislative sponsor, Senator Bill Keith, was to narrow the science curriculum. During the legislative hearings, Senator Keith stated: “My preference would be that neither [creationism nor evolution] be taught.” Such a ban on teaching does not promote—indeed, it undermines—the provision of a comprehensive scientific education. It is equally clear that requiring schools to teach creation science with evolution does not advance academic freedom. The Act does not grant teachers a flexibility that they did not already possess to supplant the present science curriculum with the presentation of theories, besides evolution, about the origin of life. . . . Furthermore, the goal of basic “fairness” is hardly furthered by the Act’s discriminatory preference for the teaching of creation science and against the teaching of evolution. While requiring that curriculum guides be developed for creation science, the Act says nothing of comparable guides for evolution. . . . Similarly, research services are supplied for creation science but not for evolution. . . . Only “creation scientists” can serve on the panel that supplies the resource services. The Act forbids school boards to discriminate against anyone who “chooses to be a creation-scientist” or to teach “creationism,” but fails to protect those who choose to teach evolution or any other noncreation science theory, or who refuse to teach creation science. . . . If the Louisiana legislature’s purpose was solely to maximize the comprehensiveness and effectiveness of science instruction, it would have encouraged the teaching of all scientific theories about the origins of humankind. But under the Act’s requirements, teachers who were once free to teach any and all facets of this subject are now unable to do so. Moreover, the Act fails even to ensure that creation science will be taught, but instead requires the teaching of this theory only when the theory of evolution is taught. Thus we agree with the Court of Appeals’ conclusion that the Act does not serve to protect academic freedom, but has the distinctly different purpose of discrediting “evolution by counterbalancing its
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teaching at every turn with the teaching of creation science. . . .” . . . There is a historic and contemporaneous link between the teachings of certain religious denominations and the teaching of evolution. It was this link that concerned the Court in Epperson v. Arkansas, 393 U.S. 97, 89 S. Ct. 266 (1968), which also involved a facial challenge to a statute regulating the teaching of evolution. . . . Although the Arkansas anti-evolution law did not explicitly state its predominant religious purpose, the Court could not ignore that “[t]he statute was a product of the upsurge of ‘fundamentalist’ religious fervor” that has long viewed this particular scientific theory as contradicting the literal interpretation of the Bible. . . . These same historic and contemporaneous antagonisms between the teachings of certain religious denominations and the teaching of evolution are present in this case. The preeminent purpose of the Louisiana legislature was clearly to advance the religious viewpoint that a supernatural being created humankind. The term “creation science” was defined as embracing this particular religious doctrine by those responsible for the passage of the Creationism Act. Senator Keith’s leading expert on creation science, Edward Boudreaux, testified at the legislative hearings that the theory of creation science included belief in the existence of a supernatural creator (noting that “creation scientists” point to high probability that life was “created by an intelligent mind”). Senator Keith also cited testimony from other experts to support the creationscience view that “a creator [was] responsible for the universe and everything in it.” . . . The legislative history therefore reveals that the term “creation science,” as contemplated by the legislature that adopted this Act, embodies the religious belief that a supernatural creator was responsible for the creation of humankind. Furthermore, it is not happenstance that the legislature required the teaching of a theory that coincided with this religious view. The legislative history documents that the Act’s primary purpose was to change the science curriculum of public schools in order to provide persuasive advantage to a particular religious doctrine that rejects the factual basis of evolution in its entirety. . . . The legislation therefore sought to alter the science curriculum to reflect
endorsement of a religious view that is antagonistic to the theory of evolution. In this case, the purpose of the Creationism Act was to restructure the science curriculum to conform with a particular religious viewpoint. Out of many possible science subjects taught in the public schools, the legislature chose to affect the teaching of the one scientific theory that historically has been opposed by certain religious sects. As in Epperson, the legislature passed the Act to give preference to those religious groups which have as one of their tenets the creation of humankind by a divine creator. . . . Because the primary purpose of the Creationism Act is to advance a particular religious belief, the Act endorses religion in violation of the First Amendment. We do not imply that a legislature could never require that scientific critiques of prevailing scientific theories be taught. . . . But because the primary purpose of the Creationism Act is to endorse a particular religious doctrine, the Act furthers religion in violation of the Establishment Clause. . . . We agree with the lower courts that these affidavits do not raise a genuine issue of material fact. The existence of “uncontroverted affidavits” does not bar summary judgment. The Louisiana Creationism Act advances a religious doctrine by requiring either the banishment of the theory of evolution from public school classrooms or the presentation of a religious viewpoint that rejects evolution in its entirety. The Act violates the Establishment Clause of the First Amendment because it seeks to employ the symbolic and financial support of government to achieve a religious purpose. The judgment of the Court of Appeals therefore is Affirmed.
CASE NOTE The aggressive efforts by some school parishes and the Louisiana legislature to intermingle church and state in education continue to create litigation. From Cochran v. Louisiana State Board of Education, 281 U.S. 270, 50 S. Ct. 335 (1930) to the most recent Mitchell v. Helms, 530 U.S. 793, 120 S. Ct. 2530 (2000), the state or local school boards periodically insert religion into the public schools. In Freiler v. Tangipahoa Parish Public Schools, 185 F.3d 337 (5th Cir. 1999), the school board passed a resolution requiring
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Student Testing and Promotion
that a disclaimer be read immediately before the teaching of evolution in all elementary and secondary classes. The resolution followed a failed attempt by the Tangipahoa Parish school board to introduce creation science, the biblical story of creation, into science curriculum of the school curriculum as a scientific alternative to teaching about evolution. Having been thwarted earlier by the courts in this effort, the Tangipahoa board conjured the disclaimer scheme designed to distance the school curriculum from the theory of evolution. The board resolution said that: It is hereby recognized by the Tangipahoa Board of Education, that the lesson to be presented, regarding the origin of life and matter, is known as the Scientific Theory of Evolution and should be presented to inform students of the scientific concept and not intended to influence or dissuade biblical version of creation or any other concept.
The Fifth Circuit held that the disclaimer violated the second prong of the Lemon test; it had the primary effect of protecting and maintaining a particular religious viewpoint as well as endorsing religion. The court, in invalidating the resolution, observed that the disclaimer cited the “biblical version of Creation” as the only alternative theory explicitly referenced. The U.S. Supreme Court denied certiorari of this case on June 20, 2000.
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Student Testing and Promotion
The state has the authority to establish standards for promotion and graduation. In recent years, states have begun to rely more and more on the standardized test as a criterion to determine students’ competencies. So long as such measures of academic attainment are reasonable and nondiscriminatory, the courts will not intervene. Courts have traditionally given school officials and teachers wide latitude in deciding on appropriate academic requirements. In Board of Curators of University of Missouri v. Horowitz, the U.S. Supreme Court pointed out that “Courts are particularly ill-equipped to evaluate academic performance.”70 This judicial position of nonintervention was adopted early by the courts. In a 1913 case in Massachusetts, the court said that
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“[s]o long as the school committee acts in good faith, their conduct in formulating and applying standards and making decisions touching this matter is not subject to review by any other tribunal.”71 Courts, of course, are not equipped to evaluate the academic standards of the myriad areas of subject matter and to review student performance. The courts confine themselves to determining whether due process is given, whether discrimination exists, or if a student suffers ill treatment from arbitrary or capricious action by the school. In Gaspar v. Bruton, the U.S. Court of Appeals for the Tenth Circuit observed: [T]he courts are not equipped to review academic records based upon academic standards within the particular knowledge, experience and expertise of academicians . . . .Thus, when presented with a challenge . . . for failure re academic standards, the court may grant relief, as a practical matter, only in those cases where the student presents positive evidence of ill will or bad motives.72
DUE PROCESS AND TESTING In recent years, states have moved to competency tests as minimal criteria for the awarding of high school diplomas. Because of society’s great reliance on high school and college diplomas as measures of attainment, the diploma is of special interest to the student. The diploma, therefore, meets the criteria for a property interest under the Due Process Clause of the Fourteenth Amendment, as enunciated in Board of Regents v. Roth by the U.S. Supreme Court. There, the Court stated that “[t]o have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.”73 Certainly, a diploma is a benefit that everyone needs, and when a student progresses academically for 12 years, one may logically assume that the diploma will be forthcoming. The reasonableness of expectation of receipt of a diploma is, of course, contingent on the school standards and normal academic progress. In requiring that students pass minimal competency tests in order to graduate, states have established new criteria to which a student must respond in order to have a reasonable expectation of graduation. The criteria for graduation,
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level of test scores, type of questions, and the difficulty of items are all issues requiring subjective academic judgment. Substantive due process, property, and liberty interests do not apply to such subjective standards. It is the objective standards over which the courts will exercise scrutiny. The U.S. Supreme Court in Mathews v. Eldridge74 enunciated the rationale for invoking due process, saying that the dictates of due process are (1) the nature of the private interest denied by official action, (2) the risk of erroneous deprivation if appropriate procedures are not followed, and (3) the state’s interest in imposing the particular requirements or denying the benefit. Where tests are concerned, “risk of erroneous deprivation” may be caused by tests that do not measure the content that they are supposed to measure. If the tests do not measure the content, then they lack validity. A second test concept is reliability, which requires that the measure must yield consistent results. These issues of validity and reliability became the foci of the court in the case of Debra P. v. Turlington, in which the Florida functional literacy examination was challenged. In the original litigation, the plaintiffs prevailed on the due process issues because the state could not show that the school curriculum prepared the students for the items tested.75 The U.S. Court of Appeals for the Fifth Circuit, in addressing test validity as a due process issue, remanded the case for further findings of fact to determine whether the literacy test covered “material actually taught in Florida’s classrooms.” To provide this information, the Florida Department of Education went through an elaborate process of surveying teachers to determine the content of courses they were teaching in order to verify that the questions on the literacy test were addressed in the classroom. On rehearing of the case, the federal district court accepted the evidence submitted by the state, indicating validity of the questions, and ruled for the state. Debra P. is an important due process precedent because it expands the judicial view of objective criteria to the extent that test questions come under the scrutiny of the court. This case tends to narrow the state’s prerogative in interpreting what has traditionally been a subjective
consideration. By more carefully circumscribing objective criteria in terms of statistical measures of validity and reliability, the court effectively extends the realm of judicial scrutiny into student evaluation processes. In so doing, the court shifts the burden of proof and forces the state to demonstrate that the test was a fair assessment of what was taught. Debra P. has subsequently been used as precedent by other courts. In Anderson v. Banks, a Georgia federal district court required the school district to show that the questions on the California Achievement Test (CAT) had actually been covered in the high school curriculum before the court would allow the test to be used for an exit examination. The school district sustained this burden by conducting a study that matched objectives measured by the CAT with the school curriculum. The study also showed that the textbook content closely paralleled the types of items used and the content measured on the CAT. This was sufficient to meet the court’s due process requirements. The court, in quoting Debra P., said that “[t]o require school officials to produce testimony that every teacher finished every lesson and assigned every problem in the curriculum would impose a paralyzing burden on school authorities. . . .”76
EQUAL PROTECTION AND TESTING Courts are very much aware of the potential for the use of tests as a means to justify racial discrimination in violation of the Equal Protection Clause. In 1967, a federal district judge in Washington, D.C., held that the use of tests for tracking students was unconstitutional. The court found that the effect of the tests was to categorize students according to race, and that little opportunity was afforded to move from one track to another.77 Similarly, the use of IQ tests to evaluate students for placement in classes for the mentally retarded was invalidated by a federal court in California because the state could not show how the IQ tests were related to the intellectual capabilities of the students. The effect of these tests was to place an inordinate number of black children in the mentally retarded category.78 The “effect” standard required that school officials show a compelling interest to administer
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Student Testing and Promotion
such tests if the result was to effectively separate the races in the schools. School officials were uniformly unable to sustain this compelling interest burden, and were thus virtually foreclosed from using standardized tests for placement or promotion. Then the U.S. Supreme Court, in Washington v. Davis,79 set down a new precedent that required plaintiffs to show not merely that the “effect” of the tests was to racially discriminate, but that in adopting the tests, the state had the “intent” to discriminate. In this case, the Court found that to use tests producing racially disparate results was not a violation of equal protection unless it could be shown that there was official intent to discriminate. Since the Davis decision, lower courts have refined the intent standard with a moderating criterion called “institutional intent.” This standard requires that officials show a substantial nonracial objective, not a compelling interest, if discriminatory results can be reasonably foreseen. This compromise test has been defined this way: Where the school board adopts policies that foreseeably further an illegitimate objective, and it cannot justify or adequately explain such policies in terms of legitimate educational objectives, one must presume that the school board would not have adopted such a policy but for an illegitimate purpose. Consistent with this perspective, “institutional segregative intent” may be said to exist where a school board adopts a more, rather than a less, segregative policy and cannot justify its choice in terms of legitimate educational objectives.80
The important issue is to determine what is a “compelling” state interest as opposed to what is merely a “reasonable” state interest. There is little doubt that tests can be used as diagnostic instruments even though classifications fall along racial lines. But there may be some legitimate question as to whether such tests can be used as a culling device to weed out those who are not as academically able as others, especially where no opportunity for academic redress is offered the student. Most importantly, though, the “institutional intent” standard shifts the burden of proof to the school district, whereas with the simple “intent” test the plaintiff must show evidence that the state had the purpose and intent to discriminate.
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Functional Literacy Test May Be Required as Prerequisite for High School Diploma, but Test Must Be a Valid Measure of Instruction
Debra P. v. Turlington United States District Court, Middle District of Florida, 1983. 564 F. Supp. 177, aff’d, 730 F.2d 1405 (11th Cir.1984).
GEORGE C. CARR, District Judge. In 1978, the Florida Legislature approved an amendment to the Educational Accountability Act of 1976, Fla. Stat. § 229.55 et seq., which required public school students in the State of Florida to pass a functional literacy examination in order to receive a state high school diploma. Fla. Stat. § 232.246(1)(b). Shortly after its enactment, Florida high school students filed a class action challenging the constitutionality of the literacy test requirement. This Court found that the test violated both the equal protection and due process clauses of the Constitution and enjoined its use as a diploma sanction until the 1982–83 school year. Debra P. v. Turlington, 474 F. Supp. 244 (M.D. Fla. 1979). On appeal, the Fifth Circuit Court of Appeals affirmed many of this Court’s findings. Debra P. v. Turlington, 644 F.2d 397 (5th Cir. 1981). However, the appellate court remanded the case for further factual findings on two key issues. Specifically, this Court was directed to make further findings on whether or not the functional literacy test, the Florida Student State Assessment Test, Part II (SSAT-II), covers material actually taught in Florida’s classrooms. In addition, the Court of Appeals requested this Court to reexamine the “role and effect of the ‘vestiges’ of past discrimination” upon twelfth-grade black students. The SSAT-II is a test of a student’s ability to successfully apply basic communications and mathematics skill to everyday life situations. . . . The test covers twenty-four basic skills. Of these, eleven are designated as communications skills and thirteen are designated as mathematics skills. . . . The Court of Appeals has upheld the denial of a diploma to these students so long as the “test is
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a fair test of that which was taught.” The Court reasoned that “[i]f the test is not fair, it cannot be said to be rationally related to a state interest” and therefore it would be violative of the Equal Protection Clause. In other words, the SSAT-II is only constitutional if it is instructionally valid. . . . Put simply, the task assigned to this Court by the Court of Appeals was to find out if Florida is teaching what it is testing. Unfortunately, the answer to this apparently easy question is quite complex. In an effort to carry its burden of proving that the test is instructionally valid, the defendants commissioned . . . a private consultant firm, to develop a study. . . . The survey asked teachers whether they had provided instruction relating to the twenty-four skills tested on the SSAT-II. If they had, the teachers were then asked if they had provided sufficient instruction for a student to master the skills. The teachers were required to answer separately for each individual skill. In addition, although the survey was anonymous, the teachers were asked to identify whether they were an elementary or secondary teacher and, if a secondary teacher, they were to identify their major field of emphasis. The second part of the study . . . was a survey sent to the sixty-seven school districts and four university laboratory schools in Florida. . . . The third component of the . . . study consisted of a series of site visits to verify the accuracy of the district reports. . . . The fourth component of the . . . study was a student survey administered by the site visitors to one or two eleventh-grade social studies and English classes. The survey asked the students to state whether or not they had been taught in school how to answer the types of questions found on the SSAT-II. The sample questions provided to the students included questions on all twenty-four SSAT-II skills. At trial, the defendant offered three expert witnesses who opined, based on the array of data outlined above, that Florida was teaching what it was testing. . . . . . . [E]vidence suggests [that] the resolution of the instructional validity issue depends both on whose experts are believed and on what sort of proof is required. With regard to the former, it is important to understand that the instructional validity issue, and the related concept of minimum
competency testing, are relatively new and highly controversial subjects which seem to have polarized the educational community. Thus, in large part, this Court has been called upon to settle not only a legal argument but also a professional dispute. . . . But, what does the Constitution require in this instance? It may not be fair to expect students with differing interests and abilities to learn the same material at the same rate, but is it unconstitutional? Similarly, it may be inequitable that some students, through random selection, are assigned to mediocre teachers while others are given excellent instructors, but does this inequity rise to the level of a constitutional violation? These questions lead to other issues concerning the appropriate burden of proof. The plaintiffs argue that the defendants have not carried their burden because they have not attempted to follow students throughout their entire careers. They also assert that there is insufficient evidence of what actually goes on in the classrooms. But, absent viewing a videotape of every student’s school career, how can we know what really happened to each child? Even assuming that such videotapes were available, how could this Court decide, in constitutional terms, which students received appropriate instruction and which did not? Suppose that there is one student who never encountered a teacher who taught the SSAT-II skills, or a teacher who taught the skills well, should the entire test be declared invalid? What if the number of students were 3,000 rather than one? It is necessary to consider these questions in order to appreciate the dilemma confronted by this Court. Instructional validity is an elusive concept. Moreover, unlike some of the other claims made by the plaintiffs at the first trial, the instructional validity issue strikes at the heart of the learning and teaching process. It also lends itself to individualized determinations rather than objective treatment. Instructional validity is a subpart of content validity which together with curricular validity, insures that a test covers matters actually taught. As the Court of Appeals noted, and as this Court previously found, the SSAT-II is a “good test of what the students should know.” . . . That is, the subjects tested parallel the curricular goals of the State. To this end, the Department of Education
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Student Testing and Promotion
publishes minimum performance standards and also “periodically examine[s] and evaluate[s] procedures, records, and programs in each district to determine compliance with laws and rules established by the state board.” Thus, although the individual districts are still somewhat autonomous, they no longer have the authority to decide that they will not teach certain minimum skills. In the same vein, the Department of Education, the individual districts, and the separate schools are required to submit annual reports of how well school instructional programs are helping students acquire minimum performance skills. In sum, since at least 1979, school administrators and teachers have been well aware of the minimum performance standards imposed by the State and their duty to teach these skills. . . . The districts also receive funding from the State to remediate students who need special educational assistance in order to master the basic skills. . . . Each district school board is also required to establish pupil progression plans to insure that students are not promoted without consideration of each student’s mastery of basic skills. The State has also established uniform testing standards for grades three, five, eight and eleven to monitor the acquisition of basic skills by students statewide. These legislative requirements bolster the conclusion that the SSAT-II is, at least, curricularly valid. They lend support to the opinions of the defendants’ experts that the SSAT-II is instructionally valid. It is clear from the survey results that the terms of the Educational Accountability Act are not just hollow words found in a statute book. Rather, the district reports, teacher surveys, and site visit audits, as interpreted by the defendants’ experts, all indicate that the directives of the Act are a driving force in all of Florida’s public schools. Nevertheless, it is the plaintiffs’ position that the instructional validity of the test cannot be established by showing that the skills tested are included in a recognized curriculum. To the contrary, they believe that the only touchstone of the test’s validity is proof of what graduating seniors were actually, not theoretically, taught. Without such proof, the plaintiffs posit that no one can tell whether the students had a “fair” opportunity to learn. . . .
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As noted above, it is impossible to prove conclusively the degree to which every one of the more than 100,000 graduating seniors were exposed to the SSAT-II skills. What is known is that the districts have reported that these skills are included in their curriculum and that a substantial number of public school teachers have stated that they adhere to this curriculum by including these skills in their course of instruction. In addition, and of even greater significance in determining the constitutionality of the test, it is known that students are given five chances to pass the SSAT-II between the tenth and twelfth grades of school and that, if they fail, they are offered remedial help. They also have the option of staying in school for an additional year in order to “receive special instruction designed to remedy [their] identified deficiencies.” Certainly, some remedial programs and teachers will be more effective than others. However, this disparity cannot be said to be unfair in a constitutional sense. While it might be preferable from an educator’s standpoint to insure that students learn the requisite skills during their regular courses rather than in remedial sessions, the Constitution clearly does not mandate such a result. What is required is that the skills be included in the official curriculum and that the majority of the teachers recognize them as being something they should teach. Once these basic facts are proven, as they have been in this case, the only logical inference is that the teachers are doing the job they are paid to do and are teaching these skills. It strains credibility to hypothesize that teachers, especially remedial teachers, are uniformly avoiding their responsibilities at the expense of their pupils. . . . For the reasons stated above, and based on a review of the evidence presented by both sides, the Court finds that the defendants have carried their burden of proving by a preponderance of the evidence that the SSAT-II is instructionally valid and therefore constitutional. Although the instruction offered in all the classrooms of all the districts might not be ideal, students are nevertheless afforded an adequate opportunity to learn the skills tested on the SSAT-II before it is used as a diploma sanction. As noted earlier, deciding that the SSAT-II is a fair test of that which is taught in the Florida public schools does not end this Court’s inquiry.
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The Court must still decide whether or not the State should be enjoined from imposing the diploma sanction because the vestiges of past purposeful discrimination have an unconstitutional impact on black high school students. No one disputes the fact that the SSAT-II failure rate among black students is disproportionately high. Of the three thousand twelfth-grade students who have not passed the test, about 57% are black even though blacks only constitute about 20% of the entire student body. While these statistics are alarming, they do not, standing alone, answer the constitutional question this Court must confront. In order for this Court to continue to prohibit the State from using the SSAT-II as a diploma sanction, the disproportionate failure rate among today’s high school seniors must be found to have been caused by past purposeful segregation or its lingering effects. If the disparate failure of blacks is not due to the present effects of past intentional segregation or if the test is necessary to remedy those effects, then the four-year injunction entered in 1979 cannot be extended. . . . . . . [T]he plaintiffs seem to argue that the SSAT-II will be invalid as long as any vestiges of discrimination exist. In the 1979 trial, this Court found, “the most significant burden which accompanied black children into the integrated schools was the existence of years of inferior education.” This burden is not shouldered by the Class of 1983. Unlike the Class of 1979, black and white members of the Class of 1983 have had the same textbooks, curricula, libraries and attendance requirements throughout their public school years. Thus, while no two students can have an identical academic experience, their educational opportunities have nonetheless been equal in a constitutional sense. Moreover, to the extent that insidious racism is a problem in the schools, it would seem that a test like the SSAT-II, with objective standards and goals, would lead to its eradication. . . . Twelve years have passed since the Florida public schools became physically unitary. Since that time, the State of Florida has undertaken massive efforts to improve the education of all of its school children. The SSAT-II is an important part of those efforts. Its use can be enjoined only if it perpetuates the effects of past school segregation or if it is not needed to remedy those
effects. Applying this standard to the facts presented at both the 1979 and 1983 trials, the Court finds that the injunction should not be extended. The State of Florida may deny diplomas to the members of the Class of 1983 who have not passed the SSAT-II.
CASE NOTES 1. Testing. With the impetus of No Child Left Behind (NCLB), a testing regimen has become a staple of public school advancement for students. Cases directly following Debra P. v. Turlington have been sparse except for cases where plaintiffs question the legality of competency tests where the states do not remediate skill deficits. Donald T. Kramer indicates that such cases have occurred in all states except Alaska, Hawaii, Iowa, Minnesota, Mississippi, Montana, North Dakota, Ohio, Pennsylvania, South Dakota, West Virginia, and Wisconsin. C. Pipho, State Activity; Minimum Competency Testing (Educ Comm of the States, 1980). Rankins v. Louisiana State Bd. of Elementary and Secondary Educ., 637 So.2d 548, 91 Ed. Law Rep. 1240 (La. Ct. App. 1st Cir. 1994), writ denied, 635 So.2d 250 (La. 1994), citing La Rev Stat Ann § 17:6 subd. A(15), § 17:24.4. Donald T. Kramer, “Legal Rights of Children,” 2 Leg. Rts. Child. Rev. 2D § 24:24 (2009). 2. The State of Louisiana established a Graduate Exit Examination (GEE) that students had to pass before they received their diploma. A student accumulated the required Carnegie Units but failed the test and sued the State Board of Elementary and Secondary Education (BESE), alleging the BESE did not have the authority to establish the GEE as a graduation requirement and its administration denied equal protection. Under the equal protection allegation, the student claimed that the violation occurred because nonpublic, home-study students and persons obtaining the General Educational Development Diploma (GED) are not required to take the GEE. Although the legislature did not authorize the GEE, the State Board did have the authority. The court ruled the BESE had broad power pursuant to the state constitution to perform the functions necessary for the supervision and control of public education. When addressing
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Grading and Academic Requirements
the equal protection argument, the court said the state constitution allowed the BESE limited powers over private schools. In granting or withholding the approval of private schools, the BESE could only compare the quality of the private school curriculum with the statemandated curriculum. As long as private schools offered 23 Carnegie Units, it was approved. Also because of the state constitution, exit exams for homeschoolers would violate the parents’ rights to be free from unreasonable government interference. The court referred to Debra P. v. Turlington, when it said that an exit exam had to be correlated with the subject content. Rankins v. Louisiana State Board of Elementary and Secondary Education, 637 So.2d 548 (La. Ct. App. 1994).
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Grading and Academic Requirements
Educational processes of public schools are generally systematic and incremental in nature. Student progress is normally measured and evaluated accordingly. The school fits the conceptual bases discussed earlier by Benjamin Rush and Jefferson in their correspondence, wherein they called for a uniform system of education that would provide essential curriculum for the masses and an orderly means of incremental learning—elementary, secondary, higher education, and so on.81 The organization of the graded class system in which students build on the knowledge gained from previous schooling assumes, implicitly, some evaluation process to determine knowledge gained. Because such evaluations are so important to the individual’s future, it is inevitable that litigation should arise regarding grading, testing, and sanctioning a student’s educational progress. The courts have been reluctant to intervene in the internal academic affairs of schools, preferring to defer to the judgment of professional educators where issues of student evaluation are concerned. This reticence was illustrated by the U.S. Supreme Court in a 1978 higher-education case, where a fine line was drawn distinguishing academic penalties from disciplinary actions. The Court observed that academic considerations are by their “nature more subjective and evaluative than the typical factual questions presented in the average disciplinary decision”
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and that such academic judgments should be left to educators.82 More recently, the Supreme Court upheld faculty judgment in denying a student the opportunity to retake an examination that was a prerequisite to obtaining a degree because the student had a poor overall academic standing and had failed to score at an acceptable level on a particular examination. The Court upheld the school’s action, even though some other students had been allowed to retake the examination.83 The Court said that “when judges are asked to review the substance of a genuinely academic decision . . . , they should show great respect for the faculty’s professional judgment.”84
WITHHOLDING DIPLOMA It is within the sound judgment of school authorities to determine if and when a pupil has completed the prescribed courses entitling him or her to a diploma. However, there is no direct relationship between participation in a graduation exercise and the issuance of a diploma. Once the pupil has completed successfully all of the required courses, the issuance of a diploma is a ministerial act that the school officials must perform. The refusal of a pupil to perform some act that is not a part of curriculum nor is required by school regulation prior to graduation will not justify withholding of the diploma. Thus, school authorities may deny a student the opportunity to participate in graduation ceremonies as a disciplinary measure but may not withhold the diploma unless the student is academically deficient.85 In a 1921 case in which a student’s refusal to wear a cap and gown to graduation resulted in the board’s withholding the pupil’s diploma, the court mandated that the diploma be granted and stated: A diploma, therefore is prima facie evidence of educational worth, and is the goal of the matriculate. . . . The issuance of a diploma by the school board to a pupil who satisfactorily completes the prescribed course of study and who is otherwise qualified is mandatory, and, although such duty is not expressly enjoined upon the board by statute, it does arise by necessary and reasonable implication. . . . This Plaintiff . . . having complied with all the rules and regulations precedent to graduation, may not be denied her diploma by the arbitrary action of the school board subsequent to her being made the recipient of the honors of graduation.86
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GRADE REDUCTION Challenges to school grading policies have usually been couched as violative of the due process of law requirements. In response to such an allegation, a court in Michigan held that a student has no vested property interest in a particular grade, and that a school board has the implied authority to set grading policies even though state statute does not expressly grant such authority.87 Courts have generally held that grades cannot be reduced as a disciplinary measure for violation of school rules. Where a student, while on a school field trip, drank a glass of wine in violation of school rules, the school suspended her for five days, expelled her from the cheerleading squad and the National Honor Society, prohibited her participation in school activities during the days she was expelled from school, and imposed a further penalty of grade reduction. The school policy called for the reduction of grades in all classes by two percentage points for each day of suspension. Upon challenge, the court held for the student and ruled that a school board may not impose a grade reduction sanction for infractions that are not related to education. To do so, the court maintained, was to misrepresent the student’s true scholastic achievement for college entrance and other purposes.88 Yet, attendance at school and academic performance may be reasonably connected, and failure to attend school may affect the overall educational process. If a school board decides that attendance is essential to fulfill academic requirements, and if rules are so promulgated, then the courts are not likely to intervene.89 Thus, while school authorities have broad authority in the evaluation of students, the exercise of the authority cannot be so broad and indiscriminate as to permit unreasonable or improper exercise of discretion. What constitutes appropriate use of discretion largely depends on how well the school documents its rationale and how closely that rationale relates to the desirable educational end that the rule is designed to achieve.
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Grade Standards for Extracurricular Activities
Lately, much has been written about the relationship between regular and extracurricular activities of the school and the importance of requiring reasonable minimum academic standards as conditions precedent to participation. Minimal
participation standards have been imposed in several states, and in some instances litigation has resulted. The Montana Supreme Court has held that a school district requirement that a student maintain a 2.0, or C grade average, for the preceding nine weeks in order to participate in extracurricular activities was a valid exercise of school board authority.90 The court reasoned that participation in extracurricular activities is not a fundamental right under either the Montana or federal constitutions, and that therefore, the board need show only that its rule was reasonable and rational. The reasonableness of the board’s action was found in its desire to develop the full educational potential of each person in providing a basic quality education and providing incentive for those students who wish to participate in extracurricular activities. In a similar case, a Louisiana court held that requiring a 1.6 grade point average to participate in cheerleading tryouts was rationally related to promotion of academic excellence and was not violative of equal protection.91 In such cases, the rule will be upheld if its purpose is rationally related to the educational objective of the school. Because courts have generally held that participation in extracurricular activities and interscholastic athletics does not rise to the level of a constitutionally protected right, there is no entitlement to procedural due process protections, and the school board does not need to bear the more severe equal protection burden of showing that it has a compelling reason to invoke such a rule.92
School Board Policy Imposing Academic Sanctions for Nonattendance Is Not Ultra Vires, nor Does It Violate Due Process or Equal Protection Guarantees
Campbell v. Board of Education of Town of New Milford Supreme Court of Connecticut, 1984. 193 Conn. 93, 475 A.2d 289.
PETERS, Associate Justice. This case concerns the validity of the policy of a local school board that imposes academic
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Grade Standards for Extracurricular Activities
sanctions for nonattendance upon high school students. . . . The plaintiff claimed that the defendants’ policy was ultra vires in light of governing state statutes, and unconstitutional in light of operative provisions of the Connecticut constitution and the United States constitution. The trial court rendered judgment for the defendants and the plaintiff has appealed. The underlying facts are undisputed. The New Milford attendance policy, set out in an annually distributed student handbook, provides two sets of academic sanctions for students who are absent from school. Course credit is withheld from any student who, without receiving an administrative waiver, is absent from any yearlong course for more than twenty-four class periods. In the calculation of the twenty-four maximum absences, all class absences are included except absences on school-sponsored activities or essential administrative business. In addition to the twenty-four absence limit, the course grade of any student whose absence from school is unapproved is subject to a five-point reduction for each unapproved absence after the first. In any one marking period, the grade may not, however, be reduced to a grade lower than 50, which is a failing grade. The grade reduction for unexcused absences is, like the twenty-four maximum absence policy, subject to administrative waiver. The policy of the school board entails extensive opportunities for counseling after a student’s first confirmed unapproved absence from a class and thereafter. The stated purpose of the attendance policy is educational rather than disciplinary. A student’s disciplinary suspension from school, for reasons unrelated to attendance, is considered an approved rather than an unapproved absence. Such an absence cannot result in the diminution of a class grade although it may be counted, unless waived, as part of the twenty-four maximum absences for class credit. A student’s absence from school, whether approved or unapproved, is not a ground for suspension or expulsion. A student’s report card lists, for each course, grades for each marking period, a final examination grade, a final grade, the amount of credit awarded, and the number of approved and unapproved absences. The report card conspicuously bears the following legend: “A circled grade indicates that the grade was reduced due
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to unapproved absences.” In the case of the named plaintiff, his report card indicated grade reductions by the circling of grades in each of his academic courses, with the result that in three of the courses his final grade was lowered from passing to failing. In the fourth course, Architectural Drafting II, where the plaintiff’s final grade was passing despite an indicated reduction for unapproved absences, the report card assigned him no credit because of a total of thirty-eight absences, thirty-one of which were approved and seven of which were unapproved. Any report card thus discloses, on its face, those grades which are affected by the enforcement of the attendance policy. The plaintiff’s appeal argues that the trial court erred in ruling that the defendants’ attendance policy: (1) was not ultra vires or preempted by governing state statutes; (2) did not violate the rights of the plaintiff class to substantive due process under the Connecticut and the United States constitutions; (3) did not deprive the plaintiff class of procedural due process under the Connecticut and the United States constitutions; (4) did not deny the rights of the plaintiff class to equal protection of the law under the Connecticut and the United States constitutions. We find no error. The plaintiff’s first argument on appeal is that the defendant school board’s policy is invalid because it conflicts with a number of state statutes. This argument is twofold, that the attendance policy is ultra vires because it exceeds the authority conferred upon local school boards by state law and that the policy is preempted by state statutes with which it is inconsistent. We find neither argument persuasive. The authority of local boards of education derives from their role as agents of the state. “[T]he furnishing of education for the general public, required by article eighth, § 1, of the Connecticut constitution, is by its very nature a state function and duty.” . . . This responsibility has been delegated to local boards which, as “agencies of the state in charge of education in the town . . . possess only such powers as are granted to them by the General Statutes expressly or by necessary implication.” . . . The trial court found authority for the defendant school board’s attendance policy in General Statutes §§ 10-220 and 10-221.
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The first of these statutes, § 10-220, requires a local school board to “implement the educational interests of the state” and to “provide such other educational activities as in its judgment will best serve the interests of the school district.” The second statute, § 10-221, instructs local boards of education to “prescribe rules for the management, studies, classification and discipline of the public schools.” In addition, the trial court noted that General Statutes §§ 10-184 and 10–199 permit local school boards to investigate and to regulate “the irregular attendance of pupils at school.” The plaintiff contends that these statutes do not furnish support for the defendant school board’s policy because its policy is properly to be characterized not as an academic regulation assigning a uniform grading value to classroom presence but rather as unauthorized punishment for nonattendance. . . . We do not read the school board’s authority in so limited a fashion. The authority to adopt uniform rules concerning irregularity of attendance is necessarily implied in the conjunction of statutory provisions authorizing local implementation of the educational mission of the state. Significantly, § 10-220 expressly charges local boards with responsibility for the oversight of the school attendance of children from the ages of seven to sixteen made mandatory by § 10–184. Furthermore, the plaintiff’s concession that school teachers, upon the instruction of local school boards, may properly consider class participation in the assignment of grades, logically implies the existence of an educational nexus between classroom presence and grading. If local school boards can delegate to others the authority to impose academic sanctions for nonattendance, the decision to adopt uniform school-wide rules for such sanctions can hardly be deemed ultra vires. None of the out-of-state cases upon which the plaintiff relies compels the conclusion that school-wide academic sanctions for nonattendance should generally be adjudged to be ultra vires. It may well be improper to reduce a student’s grade for nonattendance as an additional punishment for unrelated conduct leading to a suspension from class . . . , but this school board’s program does not permit such double punishment. It would indubitably be unlawful to apply
a nonattendance program in an unreasonable, capricious, arbitrary or inequitable manner . . . , but no such allegation has been factually demonstrated. It would finally be troublesome to bar a truant student from further class attendance and from taking a final examination . . . , but the defendant board’s program neither removes such a student from class nor excuses further compliance with the state’s compulsory education law. In short, the plaintiff has cited no authority for his claim that attendance rules promulgated by local school boards, if carefully drafted and fairly applied, are to be deemed per se ultra vires. Our own research has likewise revealed no such caselaw. We agree that such regulations fall within the authority granted to local school boards by the statutes of this state. . . . . . . [T]he plaintiff urges that the state statutes governing academic discipline, which require that a suspended or expelled student be afforded alternate educational opportunities; General Statutes §§ 10-233c and 10-233d; be read as a mandate that any student be given full academic credit for completion of academic work, and as a prohibition of locally imposed academic sanctions for nonattendance. The defendant school board’s reply to these arguments calls upon us to recognize a distinction between sanctions which are disciplinary in nature and sanctions which relate to academic requirements. The question is not whether we concur in the judgment of the defendant board of education that “[l]earning experiences that occur in the classroom are . . . essential components of the learning process” or that “[t]ime lost from class tends to be irretrievable in terms of opportunity for instructional interaction.” The policy decision that academic credentials should reflect more than the product of quizzes, examinations, papers and classroom participation nonetheless constitutes an academic judgment about academic requirements. We agree with the defendants’ characterization of their policy. . . . Even if the defendant school board’s attendance policy is authorized by the relevant state statutes, the plaintiff class asserts that the policy cannot pass constitutional muster. The plaintiff relies on provisions of our state and federal constitutions to raise three different constitutional claims: a right to substantive due process, a right to procedural due process, and a right to equal
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Grade Standards for Extracurricular Activities
protection of the laws. The trial court, upon consideration of these claims, found no infringement of the plaintiff’s constitutional rights. We agree. The plaintiff’s challenge to the New Milford attendance policy as violative of the requirements of substantive due process claims infringement of students’ fundamental rights to public education, of students’ liberty interests in their academic reputation and of students’ property interests in grades reflecting academic achievement. The first of these claims is based on article eight, § 1, of the Connecticut Constitution; the others rely on article first, §§ 8 and 10, of the Connecticut Constitution and the Fourteenth Amendment of the United States Constitution. Of these substantive due process claims, the most serious is the charge of impairment of a fundamental right, because, if such an impairment were properly before us, the validity of the questioned governmental regulation would require strict scrutiny to determine whether the regulation was compellingly justified and narrowly drafted. . . . We must therefore decide the applicability of the fundamental rights guaranteed by article eight, § 1, to the school board’s policy of imposing uniform school-wide academic sanctions for nonattendance. In Horton v. Meskill, 172 Conn. 615, 648–49, 376 A. 2d 359 (1977), we held, in the context of state-wide disparities in the financing of public school education, that “elementary and secondary education is a fundamental right, [and] that pupils in the public schools are entitled to the equal enjoyment of that right.” The plaintiff argues that Horton v. Meskill implies that strict scrutiny must be the test for any and all governmental regulations affecting public school education. We disagree. The underlying issue in Horton v. Meskill was the provision of “a substantially equal educational opportunity” for Connecticut students in the state’s “free public elementary and secondary schools.” . . . This school board policy, which is neither disciplinary . . . nor an infringement of equal educational opportunity, does not jeopardize any fundamental rights under our state constitution. The standard by which the plaintiff’s remaining substantive due process claims must be measured is therefore the more usual rational basis test. . . . In order to succeed on these claims, the plaintiff bears the heavy burden of proving that
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the challenged policy has no reasonable relationship to any legitimate state purpose . . . and that the plaintiff class has suffered a specific injury as a result of the policy’s enforcement. . . . The plaintiff has established neither the legal nor the factual predicate for meeting this burden of proof. The plaintiff argues that it is unconstitutionally arbitrary and capricious for the defendant school board to require student grades to reflect more than academic achievement. With respect to the plaintiff’s liberty interest, we can find no factual impairment of whatever rights the plaintiff might possibly assert. Inspection of the report card of the named plaintiff discloses the relationship between his academic performance and the reduction in his grades and class credit that resulted from application of the attendance policy. The plaintiff has failed to show how a student’s reputation could be injured by a report card in this form. With respect to the plaintiff’s property interest, we find it difficult to understand how a uniform school-wide policy that links class grades with attendance can be on its face more arbitrary, as a constitutional matter, than are similar judgments by individual teachers who may justifiably, according to the plaintiff, adjust classroom grades to reflect classroom participation. . . . On this record, the plaintiff class has not proven infringement of its liberty or property interest in a fair grading system. . . . The plaintiff’s final constitutional claim invokes the equal protection provisions of article first, § 20, of the Connecticut Constitution and the Fourteenth Amendment to the United States Constitution. . . . It is irrational, and a violation of equal protection, according to the plaintiff, to waive grade reduction for students who do “outstanding” work and to impose such sanctions on students whose work is, because of academic difficulties unrelated to class absence, only average. The defendants offer several answers to this argument. Factually, they deny the premise that the waiver provision favors students on account of their ability rather than on account of their effort, since work may be considered “outstanding” in light of a particular student’s past performance. Legally, they note that the waiver provision imports a reasonable element of flexibility into the assessment of a student’s total
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classroom performance. Finally, they remind us that a district-wide policy is more likely to assure equality of treatment for all students than is a policy administered on an ad hoc basis by individual classroom teachers. We find the defendants’ arguments persuasive and therefore reject the plaintiff’s equal protection claim. There is no error. In this opinion the other Judges concurred.
CASE NOTES 1. A member of the National Honor Society cheated on a calculus examination by etching the formulas on his calculator. The court upheld the student’s dismissal from the society. Jacob v. School Board of Lee County, 419 S.2d 1002 (Fla. Dist. Ct. App. 1987). 2. Denial of membership in the National Honor Society does not give rise to a property interest. Price v. Young, 580 F. Supp. 1 (E.D. Ark. 1983). See also Karnstein v. Pewaukee School Board, 557 F. Supp. 565 (E.D. Wis. 1983).
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Bilingual Education Programs
A school’s curriculum must provide special instructional services for limited-Englishproficiency students. As to the nature and method of instruction required, the courts have left substantial school board discretion. In 1974, the U.S. Supreme Court held in Lau v. Nichols that the failure of the San Francisco public school system to provide for the lingual needs of non–Englishspeaking Chinese students violated Section 601 of the Civil Rights Act of 1964.93 The Court said: there is no equality of treatment merely by providing students the same facilities, textbooks, teachers, and curriculum; for students who do not understand English are effectively foreclosed from any meaningful education.
Later, in 1978, the Ninth Circuit Court of Appeals held that neither the federal Constitution nor the civil rights laws required that all courses, instructional materials, instructors, and testing procedures be bicultural or bilingual.94 The court indicated that compensatory education programs for non–English-speaking children were sufficient to satisfy the Court’s mandate in Lau v. Nichols.
In 1974, the U.S. Congress enacted the Equal Educational Opportunities Act (EEOA), which requires that school systems develop appropriate programs for limited-English-proficiency students. The Act states in pertinent part: no state shall deny educational opportunity to an individual on account of his or her race, color, sex, or national origin, by . . . the failure by an educational agency to take appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs.95
In applying this law, the Fifth Circuit Court of Appeals, in 1981, in Castaneda v. Pickard (Castaneda I), observed that Congress, while requiring appropriate remedial programs, gave local school districts “a substantial amount of latitude” in meeting these obligations.96 In this case, the court found that the challenged bilingual programs were nondiscriminatory. Later, in 1986, in Castaneda II, the Fifth Circuit upheld the school district’s ability-grouping and classroom assignment system as not being racially and ethnically discriminatory. The court said: We by no means imply, however, that a state must provide a program of bilingual education to all limited English speaking students in order to satisfy § 1703(f) of the EEOA. We hold fast to our conviction, voiced in Castaneda I, that in enacting § 1703(f) Congress intended to leave state and local educational authorities a substantial amount of latitude in choosing the programs and techniques they would use.97
Of significance in this court’s validation of the school district’s bilingual program was the fact that a majority of the teachers were native speakers of the Spanish language and the remainders were “proficient in Spanish.” Further, the court was satisfied that adequate steps had been taken to ensure that these teachers had appropriate inservice teacher training to “develop and hone the skills necessary to be an adequate bilingual teacher.”98 Guidelines emerging from the Castaneda cases may be summarized from the court’s conclusion in Castaneda I, that the appropriateness of remediation programs in satisfying the EEOA may be evaluated with three queries: (1) Is the school district’s program based upon reorganized, sound educational theory or principles? (2) Is the school district’s program or practice designed
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Bilingual Education Programs
to implement the adopted theory? (3) Has the program produced satisfactory results?99 Concerning the pertinent federal legislation, Congress had passed a Bilingual Education Act in 1968100 and, as discussed previously, revised it in the Bilingual Education Act in 1974.101 In the former, supplemental funding was provided for school districts to address the educational needs of low-income students with limited English proficiency. The Bilingual Education Act of 1974 expanded coverage to include children other than those from low-income families. The Act also provided a more precise definition of the bilingual education program required in English and in the child’s native language to the extent needed for the child to make effective progress. Whether a state or a school district institutes a program that “produces satisfactory results” is a point of continuing litigation. See in the Case Notes after Lau below, Horne v. Flores (2009) and U.S. and LULAC v. Texas (2010).
School System’s Failure to Provide English-Language Instruction to Chinese-Speaking Children Violates the Civil Rights Act of 1964
Lau v. Nichols Supreme Court of the United States, 1974. 414 U.S. 563, 94 S. Ct. 786.
Mr. Justice DOUGLAS delivered the opinion of the Court. . . . This class suit brought by non-English-speaking Chinese students against officials responsible for the operation of the San Francisco Unified School District seeks relief against the unequal educational opportunities, which are alleged to violate the Fourteenth Amendment. No specific remedy is urged upon us. Teaching English to the students of Chinese ancestry who do not speak the language is one choice. Giving instructions to this group in Chinese is another. There may be others. Petitioners ask only that the Board of Education be directed to apply its expertise to the problem and rectify the situation. . . .
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The Court of Appeals reasoned that “every student brings to the starting line of his educational career different advantages and disadvantages caused in part by social, economic and cultural background, created and continued completely apart from any contribution by the school system.” Yet in our view the case may not be so easily decided. This is a public school system of California and § 71 of the California Education Code states that “English shall be the basic language of instruction in all schools.” That section permits a school district to determine “when and under what circumstances instruction may be given bilingually.” That section also states as “the policy of the state” to insure “the mastery of English by all pupils in the schools.” And bilingual instruction is authorized “to the extent that it does not interfere with the systematic, sequential, and regular instruction of all pupils in the English language.” Moreover, § 8573 of the Education Code provides that no pupil shall receive a diploma of graduation from grade twelve who has not met the standards of proficiency in “English,” as well as other prescribed subjects. Moreover, by § 12101 of the Education Code children between the ages of six and sixteen years are (with exceptions not material here) “subject to compulsory full-time education.” Under these state-imposed standards there is no equality of treatment merely by providing students with the same facilities, textbooks, teachers, and curriculum; for students who do not understand English are effectively foreclosed from any meaningful education. Basic English skills are at the very core of what these public schools teach. Imposition of a requirement that, before a child can effectively participate in the educational program, he must already have acquired those basic skills is to make a mockery of public education. We know that those who do not understand English are certain to find their classroom experiences wholly incomprehensible and in no way meaningful. We do not reach the Equal Protection Clause argument which has been advanced but rely solely on § 601 of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000d, to reverse the Court of Appeals. That section bans discrimination based “on the ground of race, color, or national origin,”
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in “any program or activity receiving Federal financial assistance.” The school district involved in this litigation receives large amounts of federal financial assistance. HEW, which has authority to promulgate regulations prohibiting discrimination in federally assisted school systems, 42 U.S.C.A. § 2000d-1, in 1968 issued one guideline that “school systems are responsible for assuring that students of a particular race, color, or national origin are not denied the opportunity to obtain the education generally obtained by other students in the system.” 33 CFR 4955. In 1970 HEW made the guidelines more specific, requiring school districts that were federally funded “to rectify the language deficiency in order to open” the instruction to students who had “linguistic deficiencies,” 35 Fed. Reg. 11595. By § 602 of the Act HEW is authorized to issue rules, regulations, and orders to make sure that recipients of federal aid under its jurisdiction conduct any federally financed projects consistently with § 601. HEW’s regulations, 45 CFR § 80.3(b) (1), specify that the recipients may not provide any service, financial aid, or other benefit to an individual which is different, or is provided in a different manner, from that provided to others under the program. . . . Restrict an individual in any way in the enjoyment of any advantage or privilege enjoyed by others receiving any service, financial aid, or other benefit under the program. Discrimination among students on account of race or national origin that is prohibited includes “discrimination . . . in the availability or use of any academic . . . or other facilities of the grantee or other recipient.” Discrimination is barred which has that effect even though no purposeful design is present: a recipient “may not . . . utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination” or have “the effect of defeating or substantially impairing accomplishment of the objectives of the program as respect individuals of a particular race, color or national origin.” It seems obvious that the Chinese-speaking minority receive fewer benefits than the English-speaking majority from respondents’ school system, which denies them a meaningful opportunity to participate in the educational
program—all earmarks of the discrimination banned by the regulations. In 1970 HEW issued clarifying guidelines (35 Fed. Reg. 11595) which include the following: Where inability to speak and understand the English language excludes national origin–minority group children from effective participation in the educational program offered by a school district, the district must take affirmative steps to rectify the language deficiency in order to open its instructional program to these students (Pet. Br. App. 1a). Any ability grouping or tracking system employed by the school system to deal with the special language skill needs of national origin—minority group children must be designed to meet such language skill needs as soon as possible and must not operate as an educational dead-end or permanent track (Pet. Br. p. 2a).
Respondent school district contractually agreed to “comply with Title VI of the Civil Rights Act of 1964 . . . and all requirements imposed by or pursuant to the Regulation” of HEW (45 CFR pt. 80) which are “issued pursuant to that title . . .” and also immediately to “take any measures necessary to effectuate this agreement.” The Federal Government has power to fix the terms on which its money allotments to the States shall be disbursed. . . . Whatever may be the limits of that power . . . they have not been reached here. Senator Humphrey, during the floor debates on the Civil Rights Act of 1964, said: Simple justice requires that public funds, to which all taxpayers of all races contribute, not be spent in any fashion which encourages, entrenches, subsidizes, or results in racial discrimination.
We accordingly reverse the judgment of the Court of Appeals and remand the case for the fashioning of appropriate relief. Reversed.
CASE NOTES 1. In 2009, the U.S. Supreme Court in Horne v. Flores, ___ U.S. ___, 129 S.Ct. 2579, reasserted, as did the Fifth Circuit in Castaneda v. Pickard (Castaneda III), 781 F.2d 456 (5th Cir. 1986), that Congress, by simply requiring a state to take appropriate action to overcome language barriers in order to comply with the Educational Opportunities Act (EEOA), § 204, 20 U.S.C.A.
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Summation of Case Law
§ 1703, without specifying the particular actions that a state must take, intended to leave broad latitude to state and local education authorities as to instructional programs, techniques and methodology in meeting their EEOA obligations. 2. In 2010, in United States and LULAC v. Texas, 601 F.3d 354, the U.S. Court of Appeals, Fifth Circuit, reinforced the “three prong” test that it had set forth in Castaneda I and II (see explanation above). The Fifth Circuit, in applying the last prong, “whether the program, over a legitimate period of time, has achieved some success in overcoming language barriers” (the results prong), found that the Texas Education Agency had not violated statutory rights (EEOA, § 204(f), 20 U.S.C.A. 1703(f)) of students of Mexican-American descent or nationality in its limited English proficiency program (LEP). The court reversed a lower federal court that had held that the defendants had failed to effectively monitor the LEP programs causing poor performance and achievement gaps. The Fifth Circuit found that the lower federal court had abused its discretion by concluding that the state’s adopted performance-based evaluation system was inappropriate. The evidence presented to the lower court had not indicated that the state had violated the intent of the federal statute. 3. A school district may admit students who achieve in the top 15 percent to a preferred, college-preparatory high school without violating the Civil Rights Act or the Fourteenth Amendment, even though the percentage of black and Spanish-American students is disproportionately low. The Ninth Circuit found that a school district’s legitimate interest outweighed any harm imagined or suffered by students whose achievement had not qualified them for admission. Berkelman v. San Francisco Unified School District, 501 F. 2d 1264 (9th Cir. 1974). 4. A federal district court has within its inherent legal prerogative the equitable power to fashion a bilingual–bicultural program that will ensure that Spanish-surnamed children receive meaningful education. Serna v. Portales Municipal Schools, 499 F. 2d 1147 (10th Cir. 1974).
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Summation of Case Law
Judicial Deference 1. School board members have authority to require that reasonable time shall be given to the study of a prescribed curriculum in public schools. 2. Decisions by educational authorities which turn on evaluation of academic performance of a student as it relates to promotion are peculiarly within the expertise of educators and are particularly inappropriate for review in a judicial context. Meyer 1. The liberty protected by the Fourteenth Amendment of the U.S. Constitution may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the state to effect. 2. A state law prohibiting the teaching of any subject in any language other than the English language, or the teaching of languages in private schools other than the English language, to pupils who have not passed the eighth grade, cannot be sustained as designed to protect the health of children. Community Service 1. Government may require performance of “civic duties” such as military service, jury duty, and upkeep of local public roads, without trenching upon the Thirteenth Amendment’s ban on involuntary servitude. 2. Rights that are “fundamental,” requiring governmental regulation infringing those rights, must be narrowly tailored to serve compelling state interest when they are implicit in the concept of ordered liberty or are deeply rooted in the nation’s history and tradition. 3. A school district’s mandatory community service program for high school students is reasonably related to state’s legitimate function of educating its students. Such a program does not violate parents’ substantive due process rights in the upbringing of their children; a mandatory service program furthers a state’s objective by exposing students to the needs of their communities and
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helping them to recognize their place in their communities. 4. A state has compelling interest in educating its youth to prepare them both to participate effectively and intelligently in an open political system and to be self-reliant and selfsufficient participants in society. State Discretion—Libraries 1. Discretion of state and local school boards in matters of education must be exercised in a manner that comports with the transcendent imperatives of the First Amendment. 2. The right to receive information and ideas is an inherent corollary of the rights of free speech and press that are explicitly guaranteed by the Constitution. 3. All First Amendment rights accorded to students must be construed in light of the special characteristics of the school environment, but the special characteristics of the school library make that environment especially appropriate for the recognition of the First Amendment rights of students. 4. A board of education rightly possesses significant discretion to determine the contents of school libraries, but that discretion may not be exercised in a narrowly partisan or political manner. 5. Local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books and seek by their removal to prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion. 6. A school district rule, requiring parental permission for checking out certain books from school library on grounds that the books promoted disobedience and witchcraft, violated student’s First Amendment right to access books. The student’s rights were violated even though the student already owned books and her parents had signed permission slips. The books in question were stigmatized, with resulting stigmatization of those who chose to read them. Curriculum 1. A school board’s removal of certain classics of Western literature from curriculum on the basis of sexuality and vulgarity contained in works is not unconstitutional. Such action
2.
3.
4.
5.
may reasonably be related to a stated legitimate concern in light of age of students. A requirement that public school students read a basic reader series chosen by school authorities does not create an impermissible burden on the students’ exercise of their religion notwithstanding the students’ and their parents’ religious objections to the texts. When a public school is free to use secular means of attaining a goal, it is not required to use an alternative secular means that is less likely to be associated with religion. A public school child’s objective perception that a state disapproves of or is hostile toward his or her religion is not, by itself, sufficient to create an Establishment Clause violation. Aschool district’s use of teaching aids for grades one through six which asked children to discuss witches or to create poetic chants and which parents claimed promoted witchcraft did not constitute excessive governmental entanglement with religion in violation of the Establishment Clause.
Legitimate State Objectives 1. Where a claimed right is not fundamental, a governmental regulation need only be reasonably related to a legitimate state objective to survive constitutional due process review. 2. The claim of a parent of a seventh-grade student, that the school superintendent and board of education violated the parent’s First Amendment free exercise rights and his parental rights under the Fourteenth Amendment Due Process Clause by refusing to excuse his son from a mandatory health education course and by failing his son in the course after he refused to attend, was constitutional and did not command strict judicial scrutiny review. 3. Even if a high school drama teacher had the First Amendment right to insist on makeup of curriculum, school administration had legitimate pedagogical interest in regulating students’ performance of play chosen by teacher as makeup of curriculum was legitimate pedagogical concern. 4. The study of religions and of the Bible from a literary and historic viewpoint, presented objectively as part of secular program of education, need not collide with freedom of religion prohibition of First Amendment.
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Research Aids
However, the State may not adopt programs or practices in its public schools which aid or oppose any religion. 5. Undoubted right of the State to prescribe curriculum for its public schools does not carry with it the right to prohibit, on pain of criminal penalty, the teaching of a scientific theory or doctrine where that prohibition is based on reasons that violate the freedom of religion provisions of the First Amendment. Evolution 1. State statutes forbidding the teaching of evolution in public schools and in colleges and universities supported in whole or in part by public funds are contrary to the freedom of religion mandate of the First Amendment and in violation of the Fourteenth Amendment. 2. Governmental intention to promote religion is clear when the state enacts a law to serve religious purposes, and the intention may be evidenced by promotion of religion in general or by advancement of particular religious belief. 3. A state’s “Balanced Treatment for CreationScience and Evolution-Science” in a public school instruction law does not serve any identifiable secular purpose, including promotion of academic freedom. 4. The primary purpose of a state’s “Balanced Treatment for Creation-Science and EvolutionScience” is to advance a particular religious belief, and the Act thus endorses religion in violation of the First Amendment.
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Research Aids
Research citations below are abbreviated as: American Law Reports (A.L.R.), American Jurisprudence (Am.Jur.), Corpus Juris Secundum (C.J.S.), and McQuillen Municipal Corporations (McQuillen Mun. Corp.). Explanations for each of these sources of law are found in chapter one of this text. Also, see Appendix B of this book. Compulsory Schooling 113 A.L.R. 697. What Is Common or Public School Within Contemplation of Constitutional or Staututory Provisions. 18 A.L.R. 4th 649. Validity of State Regulation of Curriculum and Instruction in Private and Parochial Schools. 16A C.J.S. Constitutional Law § 706. Control and Education of Children.
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78 C.J.S. Schools and School Districts § 395. Teachers, Principals, Superintendents, and Similar Personal Grounds for Dismissal. Pico 16B McQuillin Mun.Corp. (3rd ed.) § 46.09.05. Public Education: School Boards and School Districts; School Libraries. 64 A.L.R.Fed. 771. Propriety, Under First Amendment, of School Board’s Censorship of Public School Libraries or Coursebooks. 67B Am.Jur.2d Schools § 356. Courses of Instruction; Textbooks, Curriculum and Library Materials. 16B C.J.S. Constitutional Law § 907. Freedom of Speech and of Press: Removal of Books. 103 A.L.R.Fed. 538. Constitutionality of Teaching or Otherwise Promoting Secular Humanism in Public Schools. 16B McQuillin Mun.Corp. (3rd ed.) § 46.02.40. Public Schools and Religion. Health Education 16D C.J.S. Constitutional Law § 1911. Family, Marriage and Sexual Matters. 16B Am.Jur.2d Constitutional Law § 894. Sexual Orientation—Marriage. 67B Am.Jur.2d Schools § 349-351. Courses of Instruction: Authority of Teachers, Textbooks. 78A C.J.S. Schools and School Districts § 1074. Conduct of Schools and Scholastic Activities: Curriculums; Courses and Methods of Study. Evolution 102 A.L.R. Fed. 537. Constitutionality of Teaching or Suppressing Teaching of Biblical Creationism or Darwinian Evolution Theory in Public Schools. 68 Am.Jur.2d Schools § 443. Teaching Evolution and Religiously Based Alternatives. 68 Am.Jur.2d Schools § 442, Teaching Secularism. 103 A.L.R. Fed. 538. Constitutionality of Teaching or Otherwise Promoting Secular Humanism in Public Schools. Tests 67B Am.Jur.2d Schools § 254. Right to Diploma—Requirement of Achievement or Proficiency Test. 11 A.L.R. 4th 1182. Student’s Right to Compel School Officials to Issue Degree, Diploma, or the Like. Grading 19 Am.Jur. Proof of Facts 2d § 649. Arbitrary and Capricious Grading of Student.
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The Instructional Program
Endnotes
1. Tinker v. Des Moines Independent School District, 393 U.S. 503, 89 S. Ct. 733 (1969). 2. Ibid. at 511. 3. Steirer ex rel. Steirer v. Bethlehem Area School District, 987 F.2d 989 (3rd Cir. 1993). 4. Keyishian v. Board of Regents, 385 U.S. 589, 603, 87 S. Ct. 675, 683–684 (1967), quoting United States v. Associated Press, 52 F. Supp. 362, 372 (S.D. N.Y. 1943), aff’d, 326 U.S. 1, 65 S. Ct. 1416 (1945); see also Weiman v. Updegraff, 344 U.S. 183, 197–98, 73 S. Ct. 215, 221–22 (1952) (Frankfurter, J., concurring). 5. Ibid., Keyishian v. Board of Regents, 385 U.S. 589, 603, 87 S. Ct. 675, 683–684 (1967). 6. 48 New York University Law Review, p. 1183 (Dec. 1973). 7. Todd v. Rochester Community Schools, 41 Mich. App. 320, 200 N.W.2d 90 (1972). 8. School District of Abington Township v. Schempp, 374 U.S. 203, 300, 83 S. Ct. 1560, 1612 (1963). 9. Sturgis v. County of Allegan, 343 Mich. 209, 72 N.W.2d 56 (1955). 10. Kelly v. Dickson County School District, 64 Lack. Jur. 13 (Pa. Com. Pl. 1962). 11. Board of Curators of University of Missouri v. Horowitz, 435 U.S. 78, 98 S. Ct. 948 (1978). 12. Welling v. Board of Education, 382 Mich. 620, 171 N.W.2d 545 (1969). 13. Pittman v. Board of Education of Glen Cove, 56 Misc. 2d 51, 287 N.Y.S.2d 551 (1967). 14. Ibid. 15. Isquith v. Levitt, 285 A.D. 833, 137 N.Y.S.2d 497 (N.Y. App. Div. 1955). 16. Meyer v. Nebraska, 262 U.S. 390, 43 S. Ct. 625 (1923). 17. Edward J. Larson, Summer for the Gods, The Scopes Trial and America’s Continuing Debate Over Science and Religion (Cambridge, Mass.: Harvard University Press, 1997), p. 61. See also Woodrow Wilson, “War Message, April 2, 1997,” in Papers of Woodrow Wilson, Vol. 41 (Princeton, N.J.: Princeton University Press, 1983), pp. 519–527. 18. Larson, Ibid. See also Postmaster General Albert S. Burleson, quoted in Paul L. Murphy, World War I and the Origin of Civil Liberties in the United States (New York: Norton, 1979), p. 98. 19. Ibid. 20. Schenck v. United States, 249 U.S. 47, 39 S. Ct. 247 (1919). 21. Bartels v. Iowa, 262 U.S. 404, 43 S. Ct. 628 (1923). 22. Bohning v. Ohio, 262 U.S. 404, 43 S. Ct. 628 (1923). 23. Keyishian v. Board of Regents, op. cit. 24. Sweezy v. New Hampshire, 354 U.S. 234, 77 S. Ct. 1203 (1957). 25. Ibid. at 250, 77 S. Ct. at 1212. 26. R. Freeman Butts and Lawrence A. Cremin, A History of Education in American Culture (New York: Henry Holt and Co., 1953), p. 273. 27. McCollum v. Board of Education, 333 U.S. 203, 68 S. Ct. 461 (1948). 28. Butts and Cremin, op. cit., p. 165. 29. Board of Education v. Pico, 457 U.S. 853, 102 S. Ct. 2799 (1982). 30. Ibid.
31. Pratt v. Independent School District No. 831, 670 F.2d 771 (8th Cir. 1982). 32. Ibid. 33. Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S. Ct. 562 (1988), rev’g Kuhlmeier v. Hazelwood School District, 795 F.2d 1368 (8th Cir. 1986). 34. Ibid. 35. Ibid. at 273, 108 S. Ct. at 571. 36. Virgil v. School Board of Columbia County, Florida, 862 F.2d 1517 (11th Cir. 1989). 37. John Stuart Mill, On Liberty (Indianapolis, Ind.: BobbsMerrill, 1956), pp. 13–14. 38. Cornwell v. State Board of Education, 314 F. Supp 340 (D. Md. 1969), aff’d, 428 F.2d 471 (4th Cir. 1970), cert. denied, 400 U.S. 942, 91 S. Ct. 240 (1970). 39. Medeiros v. Kiyosaki, 52 Haw. 436, 478 P.2d 314 (1970). 40. Smith v. Ricci, 89 N.J. 514, 466 A.2d 501 (1982). 41. Gertrude Himmelfarb, Darwin and the Darwinian Revolution (Chicago: Ivan R. Dee, 1996), p. 390. 42. Will and Ariel Durant, The Age of Reason (New York: Simon and Schuster, 1961), p. 162. 43. Ibid. 44. Dava Sobel, Galileo’s Daughter (New York: Walker and Co., 1999), p. 274. 45. Himmelfarb, op cit., p. 355. 46. Charles Darwin, The Origin of Species (New York: Penguin Books, Inc., 1958), p. 452, first published in 1859. 47. Dava Sobel, op cit., p. 65. Sobel quotes the Vatican Librarian Cesare Cardinal Baronio; this view was adopted by Galileo himself. 48. “Some Considerations Touching the Usefulness of Experimental Philosophy” (1663), quoted in Martha Ornstein, The Role of Scientific Societies in the Seventeenth Century, 3rd ed. (1938), pp. 58–59; cited in Peter Gay, The Enlightenment: The Science of Freedom (New York: W.W. Norton and Co., 1969), p. 140. 49. Peter Gay, The Enlightenment: The Science of Freedom (New York: W.W. Norton & Co., 1969), p. 141. 50. Ibid. 51. Quoting Voltaire in Éléments de la philosophie de Newton, in Éuvres XXII, p. 403–404, cited in Gay, op. cit., p. 142. 52. See Gay, op cit., p. 144. 53. Darwin’s The Origin of Species was published by Murray publishing house in London on November 24, 1859. 54. See Carl Sagan, The Demon-Haunted World: Science as a Candle in the Dark (New York: Random House, 1996). 55. Epperson v. State of Arkansas, 393 U.S. 97, 89 S. Ct. 266 (1968). 56. McLean v. Arkansas Board of Education, 529 F. Supp. 1255 (E.D. Ark. 1982). 57. Edwards v. Aguillard, 482 U.S. 578, 107 S. Ct. 2573 (1987). 58. Kitzmiller v. Dover Area School District, 400 F. Supp. 2d 707 (2005). 59. Edwards v. Aguillard, 482 U.S. 578, 107 S. Ct. 2573 (1987). 60. Kitzmiller v. Dover Area School District, op. cit. 61. Ibid. 62. Ibid. 63. Ibid. 64. See Richard Dawkins, The Blind Watchmaker (London: Penguin Books, 1991), p. 4.
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Quoted Box Citation 65. Ibid. 66. Ibid., p. 5. 67. Ibid. 68. Ibid. 69. Stephen Hawking, “Builders of the Millennium Lecture,” University College Oxford University as reported in Oxford Today, The University Magazine, Vol. 12, No. 2 (Hilary Issue, 2000), p. 2. 70. Board of Curators of University of Missouri v. Horowitz, 435 U.S. 78, 98 S. Ct. 948 (1978). 71. Barnard v. Inhabitants of Shelburne, 216 Mass. 19, 102 N.E. 1095 (1913). 72. Gaspar v. Bruton, 513 F.2d 843, 851 (10th Cir. 1975). 73. Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701 (1972). 74. Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893 (1976). 75. Debra P. v. Turlington, 474 F. Supp. 244 (M.D. Fla. 1979), aff’d, 644 F.2d 397 (5th Cir. 1981). 76. Anderson v. Banks, 540 F. Supp. 761, 765 (S.D. Ga. 1982). 77. Hobson v. Hansen, 269 F. Supp. 401 (D.D.C. 1967), aff’d sub nom., Smuck v. Hobson, 408 F.2d 175 (D.C. Cir. 1969). 78. P. v. Riles, 343 F. Supp. 1306 (N.D. Cal. 1972), aff’d, 502 F.2d 963 (9th Cir. 1974). 79. Washington v. Davis, 426 U.S. 229, 96 S. Ct. 2040 (1976). 80. “Reading the Mind of the School Board: Segregative Intent and the De Facto/De Jure Distinction.” 86 Yale Law Journal, pp. 317, 335 (1976). 81. Lawrence A. Cremin, American Education, The National Experience, 1783–1876 (New York: Harper and Row, 1980), p. 117. 82. Board of Curators of the University of Missouri v. Horowitz, op. cit. 83. Regents of the University of Michigan v. Ewing, 474 U.S. 214, 106 S. Ct. 507 (1985). 84. Ibid. 85. Swany v. San Ramon Valley Unified School District, 720 F. Supp. 764 (N.C. Cal. 1989).
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86. Valentine v. Independent School District of Casey, 191 Iowa 1100, 183 N.W. 434 (1921). 87. Slocum v. Holton Board of Education, 171 Mich. App. 92, 429 N.W.2d 607 (1988). 88. Katzman v. Cumberland Valley School District, 84 Pa. Commw. 474, 479 A.2d 671 (1984). 89. Campbell v. Board of Education of Town of New Milford, 193 Conn. 93, 475 A.2d 289 (1984). 90. State v. Board of Trustees of School Dist. No. 1, 223 Mont. 269, 726 P.2d 801 (1986). 91. Rousselle v. Plaquemines Parish School Board, 527 So.2d 376 (La. App. 1988). 92. Truby v. Broadwater, 175 W. Va. 270, 332 S.E.2d 284 (1985). 93. Lau v. Nichols, 414 U.S. 563, 94 S. Ct. 786 (1974). 94. Guadalupe Organization, Inc. v. Tempe Elementary School District No. 3, 587 F. 2d 1022 (9th Cir. 1978). 95. 20 U.S.C.A. § 1703(f ). 96. Castaneda v. Pickard (Castaneda I), 648 F. 2d 989 (5th Cir. 1981). 97. Castaneda v. Pickard (Castaneda II), 781 F. 2d 456 (5th Cir. 1986). 98. Ibid. 99. Castaneda v. Pickard, 648 F. 2d at 1009–1010; see also Martha McCarthy and Nelda H. Cambron-McCabe, Public School Law, 2d ed. (Boston: Allyn and Bacon, 1987), pp. 186–87. 100. 20 U.S.C.A. § 880b. et seq. 101. 20 U.S.C.A. § 880b-1(a)(4)(A).
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Quoted Box Citation
Judge Overton, Federal District Judge, McLean v. Arkansas Board of Education, 529 F.Supp. 1255.
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CHAPTER 8
Student Speech and Expression The attainment of freedom of expression is not the sole aim of the good society. As the private right of the individual, freedom of expression is an end of itself, but it is not the only end of man as an individual. . . . Any theory of freedom of expression must therefore take into account other values, such as public order, justice, equality and moral progress, and the need for substantive measures designed to promote those ideals. Hence there is a real problem of reconciling freedom of expression with the other values and objectives sought by the good society. —Thomas I. Emerson
CHAPTER OUTLINE ■
INTRODUCTION
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FORUM ANALYSIS AND STUDENT NEWSPAPERS
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FREEDOM OF SPEECH AND EXPRESSION
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CATEGORIES OF PUBLICATIONS
Unprotected Speech
School-Sponsored Publications
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CLEAR AND PRESENT DANGER
Non-School Publications
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MATERIAL AND SUBSTANTIAL DISRUPTION
Religious Publications
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OBSCENITY AND UNCIVIL DISCOURSE
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THE INTERNET AND FREE SPEECH
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THREATS OF VIOLENCE
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STUDENT PERSONAL APPEARANCE
Fighting Words or Hate Speech
Hair Length
True Threats
School Uniforms
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FORUM ANALYSIS APPLIED TO SCHOOLS
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SUMMATION OF CASE LAW
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TIME, PLACE, AND MANNER
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RESEARCH AIDS
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STUDENT PUBLICATIONS AND KUHLMEIER
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Freedom of Speech and Expression
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Introduction
When the U.S. Supreme Court, in the landmark case of Tinker v. Des Moines Independent School District, declared that “[s]tudents in school as well as out of school are ‘persons’ under our Constitution,” and they do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,”1 this utterance constituted a proclamation of utmost importance to all students who would, from that date forward, be enrolled in public schools. The statement removed once and for all the more traditional judicial view that attendance at public schools is a privilege and not a right.2 Moreover, the Court made it clear that even though education itself is not a fundamental right under the federal Constitution,3 as explained in Chapter 3 of this book, nevertheless, students in public schools, as “persons” under the First and Fourteenth Amendments, do have fundamental rights of religion, speech, press, privacy, and other liberties as assured by textual and nontextual substantive constitutional protections. Importantly too, in the same paragraph in Tinker, the Supreme Court attached a balancing responsibility that requires students to “respect their obligations to the state.”4 Thus, not only must the public school respect the rights of students, but students themselves must fulfill their obligations to the public school.5 This chapter is about those mutual and corresponding rights and obligations, the balance of which forms the essence of student rights in public schools. The first section of the chapter deals with the all-important rights of speech and expression, while the second part sets forth the law pertaining to publications and freedom of the press.
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Freedom of Speech and Expression
Freedom of speech is a fundamental right. Why it is protected may seem obvious, but much thought and discourse has been devoted to the question. Justice Brandeis in a concurring opinion in Whitney v. California6 set forth the basic rationale of the Founders of the Republic for the fundamentality of speech. He wrote: They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth;
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that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of American government.7
Chemerinsky distills four theories for the necessity of freedom of speech from the Supreme Court precedents 8: (1) Self-governance; free speech checks the abuse of power by majorities and abuse of power by government officials.9 (2) Discovering truth; this is the basis for the metaphor, the “marketplace of ideas,” invoked by Justice Oliver Wendell Holmes when he wrote that “the best truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.”10 (3) Advancing autonomy11; free speech is a visible manifestation of liberty, “to engage voluntarily in a speech is to engage in self-definition or expression.”12 Justice Thurgood Marshall reasoned that free speech “serves not only the needs of the polity but also those of the human spirit—a spirit that demands self-expression.”13 (4) Promoting tolerance14; free speech helps “shape the intellectual character of society,”15 an essential aspect of which is tolerance of the opinions and beliefs of others. This theory argues that the polity is defined and strengthened by tolerance engendered by free discussion.16 It is obvious that these theories are not mutually exclusive; however, taken together they give substantive rationale for the ideals of free speech.17
FOUR THEORIES FOR FREE SPEECH 1. 2. 3. 4.
Self-Governance Discovering Truth Advancing Autonomy Promoting Tolerance —Erwin Chemerinsky
Even though the First Amendment does not actually use the word expression, the Supreme Court has treated it as interchangeable with “speech.” Moreover, “speech” also overlaps with “press” in prohibiting government restrictions on publications. “Speech” thus cuts a wide swath, preventing, as Justice Oliver Wendell Holmes
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Chapter 8
Student Speech and Expression
said, “all previous restraints upon publications,”18 and it is not limited to written publications, but covers various forms of expression, including movies, digital recordings, and the electronic highway.19 It was within the context of free speech that Justice Holmes coined the abovementioned metaphor, “marketplace of ideas,” in 1919.20 It must be concluded that speech is an essential cornerstone to the democratic process and its “[r]estriction alters the democratic process.”21 Justice Frankfurter later wrote of the importance of free speech, declaring that “[w]ithout freedom of expression, thought becomes checked and atrophied,”22 and the Supreme Court, as a body, concluded in 1943 that the First Amendment freedoms are preeminent, saying, “[f]reedom of press, freedom of speech, freedom of religion are in preferred position”23 as basic liberties in our democratic form of government. Speech, press, and religion are all held in a preferred position in the hierarchy of constitutional rights. Regardless, those who elevate speech to this exalted position hold that free speech is a constitutional “absolute” and it is not subject to a “balancing” of interests between the state and the individual. In holding that freedom of speech is an absolute, Justice Black said, “. . . I believe that the First Amendment’s unequivocal command that there shall be no abridgement of the rights of free speech and assembly shows that the men who drafted our Bill of Rights did all the ‘balancing’ that was done in this field. . . .”24 On the other hand, however, other Supreme Court decisions generally hold that some “balancing” of the individual’s interest in freedom of speech and the state’s interest in the conduct of an ordered society is necessary. 25 In support of the need for balancing, and in opposing the absolutist view, Justice Harlan set forth what is considered to be the prevailing view today of freedom of speech: [W]e reject the view that freedom of speech and association . . . as protected by the First and Fourteenth Amendments, are “absolutes.” . . . Throughout its history this Court has consistently recognized at least two ways in which constitutionally protected freedom of speech is narrower than an unlimited license to talk. On the one hand, certain forms of speech, or speech in certain contexts, have been considered outside the scope of constitutional protection. . . . On the other hand, general regulatory statutes not intended to control
the content of speech but incidentally limiting its unfettered exercise, have not been regarded as the type of law the First or Fourteenth Amendments forbade Congress or the states to pass, when they have been found justified by subordinating valid governmental interests, a prerequisite to constitutionality which has necessarily involved a weighting of the governmental interest involved. . . .26
It was with this same view of a balancing of interests that Justice Holmes’ famous comment regarding a crowded theater was uttered. He said, “The most stringent protection of free speech would not protect a man in falsely shouting ‘Fire’ in a theater.”27
UNPROTECTED SPEECH Supreme Court precedents make it clear that freedom of speech is not unqualified, and speech in public schools is qualified in several ways. Erwin Chemerinsky, the constitutional law scholar, explains that the First Amendment is written in “absolute language,” that Congress shall make “no law.” 28 The fact of the matter is that free speech with no exceptions would be impractical, and even impossible, to implement in a republican form of government. Chemerinsky says that “No matter how appealing the absolute position may be to the First Amendment’s staunchest supporters, it is simply untenable.”29 His example, that parallels Justice Holmes’ “crowded theater” metaphor, is that no one would countenance an absolutist view that would permit a spectator to yell out in a court of law to prevent a judge or jury from hearing the evidence. Too, and more closely related to school law, public school classrooms could not function if a student were permitted unlimited orations, perorations, and tirades in drowning out teachers and other students. The non-absolute nature of free speech and expression can be circumscribed for society, in general, as follows: (1) Incitement of disruption and breach of peace; (2) Defamation; (3) True threats of violence and fighting words; and (4) Obscenity. In application to public schools, the first category can be interpreted in terms of judicial precedents pertaining to “clear and present danger,” and “material and substantial disruption.” Defamation is explained and discussed in a later chapter; true threats and fighting words are explained below in this chapter, as are obscenity and a category that is especially applicable to public schools, “uncivil discourse.”
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Material and Substantial Disruption
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Clear and Present Danger
It was from Justice Holmes’ rationale that the “clear and present danger” test first emerged as a legal device for balancing freedom of speech against necessary governmental interests. Thus, if the exercise of speech creates a “clear and present danger” to the state, then the speech can be repressed without violating the individual’s freedom of speech. In elaborating on the “clear and present danger” test, the Supreme Court in 1950 said that in order to repress speech, two steps are required. First, the government must show a substantial interest in limiting the speech, such as preventing overthrow of the government; and second, the words or actions must constitute a “clear and present danger.” Free speech does not require that government wait to act “until the putsch is about to be executed.”30 Of course, the “clear and present danger” test has never fit the public school situation very well. In fact, earlier, when the Court advanced “clear and present danger” as a balancing test, attendance at public schools was generally thought to be a privilege rather than a right, and operating under such rationale, speech of students could be repressed upon pain of being expelled from school. Later, with the advent of Tinker and the affirmation of the students’ right of free speech and expression, there became a necessity for a more appropriate test. The new balancing test that emerged from Tinker was that of “material and substantial disruption.”31
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Material and Substantial Disruption
In Tinker, the Supreme Court established the “material and substantial disruption” test to protect the freedom of speech and expression in public schools. Here, the Court made it clear that school authorities are not permitted to deny a student the fundamental right of freedom of expression simply because of “a mere desire to avoid discomfort and unpleasantness that always accompany an unpopular viewpoint.”32 The material and substantial disruption standard is, however, so broad that interpretation of specific school incidents is sometimes difficult.
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It is important to note that the precedent set in Tinker was based on facts relating to the intense political controversy surrounding the Vietnam War. Therefore, the curtailment of expression at that level is of obvious political concern and constitutional significance. The Supreme Court acknowledges that even expression at this level of importance can be limited if the school officials can reasonably forecast material and substantial disruption. As to when and how such restraint can take place, the Court in Tinker is rather nebulous. The interpretation and application of the standard are largely left to later court decisions to apply the test in other factual situations. One such decision that provides good guidance for school officials is Guzick v. Drebus,33 a federal circuit court decision in which Tinker was applied to a situation in Shaw High School in Cleveland. Here, the school forbade the wearing of buttons in an antiwar protest because the history of school disturbance and the wearing of insignia of various kinds strongly suggested to school officials that disruption would ensue. This fear was so pronounced that the court agreed that the officials could reasonably forecast substantial disruption. Thus, in a particular setting where disruptive antecedents can be documented and long-standing uniform rules can be applied, even political expression can be restrained.
Denial of Freedom of Expression Must Be Justified by a Reasonable Forecast of Substantial Disruption
Tinker v. Des Moines Independent School District Supreme Court of the United States, 1969. 393 U.S. 503, 89 S. Ct. 733.
Mr. Justice FORTAS delivered the opinion of the Court. Petitioner John F. Tinker, fifteen years old, and petitioner Christopher Eckhardt, sixteen years old, attended high schools in Des Moines, Iowa. Petitioner Mary Beth Tinker, John’s sister, was a thirteen-year-old student in junior high school.
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Chapter 8
Student Speech and Expression
In December 1965, a group of adults and students in Des Moines held a meeting at the Eckhardt home. The group determined to publicize their objections to the hostilities in Vietnam and their support for a truce by wearing black armbands during the holiday season and by fasting on December 16 and New Year’s Eve. Petitioners and their parents had previously engaged in similar activities, and they decided to participate in the program. The principals of the Des Moines schools became aware of the plan to wear armbands. On December 14, 1965, they met and adopted a policy that any student wearing an armband to school would be asked to remove it, and if he refused he would be suspended until he returned without the armband. Petitioners were aware of the regulation that the school authorities adopted. On December 16, Mary Beth and Christopher wore black armbands to their schools. John Tinker wore his armband the next day. They were all sent home and suspended from school until they would come back without their armbands. They did not return to school until after the planned period for wearing armbands had expired—that is, until after New Year’s Day. . . . . . . On appeal, the Court of Appeals for the Eighth Circuit considered the case en banc. The court was equally divided, and the District Court’s decision was accordingly affirmed, without opinion. . . . The District Court recognized that the wearing of an armband for the purpose of expressing certain views is the type of symbolic act that is within the Free Speech Clause of the First Amendment. . . . As we shall discuss, the wearing of armbands in the circumstances of this case was entirely divorced from actually or potentially disruptive conduct by those participating in it. It was closely akin to “pure speech” which, we have repeatedly held, is entitled to comprehensive protection under the First Amendment. . . . First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate [emphasis added]. This has been the unmistakable holding of this Court for almost fifty years. . . .
The school officials banned and sought to punish petitioners for a silent, passive expression of opinion, unaccompanied by any disorder or disturbance on the part of petitioners. There is here no evidence whatever of petitioners’ interference, actual or nascent, with the schools’ work or of collision with the rights of other students to be secure and to be let alone. Accordingly, this case does not concern speech or action that intrudes upon the work of the schools or the rights of other students. Only a few of the 18,000 students in the school system wore the black armbands. Only five students were suspended for wearing them. There is no indication that the work of the schools or any class was disrupted. Outside the classrooms, a few students made hostile remarks to the children wearing armbands, but there were no threats or acts of violence on school premises. The District Court concluded that the action of the school authorities was reasonable because it was based upon their fear of a disturbance from the wearing of the armbands. But, in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Any departure from absolute regimentation may cause trouble. Any variation from the majority’s opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk, . . . and our history says that it is this sort of hazardous freedom—this kind of openness—that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society. 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. . . .
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Material and Substantial Disruption
In the present case, the District Court made no such finding, and our independent examination of the record fails to yield evidence that the school authorities had reason to anticipate that the wearing of the armbands would substantially interfere with the work of the school or impinge upon the rights of other students. Even an official memorandum prepared after the suspension that listed the reasons for the ban on wearing the armbands made no reference to the anticipation of such disruption. On the contrary, the action of the school authorities appears to have been based upon an urgent wish to avoid the controversy which might result from the expression, even by the silent symbol of armbands, of opposition to this Nation’s part in the conflagration in Vietnam. It is revealing, in this respect, that the meeting at which the school principals decided to issue the contested regulation was called in response to a student’s statement to the journalism teacher in one of the schools that he wanted to write an article on Vietnam and have it published in the school paper. (The student was dissuaded.) It is also relevant that the school authorities did not purport to prohibit the wearing of all symbols of political or controversial significance. The record shows that students in some of the schools wore buttons relating to national political campaigns, and some even wore the Iron Cross, traditionally a symbol of Nazism. The order prohibiting the wearing of armbands did not extend to these. Instead, a particular symbol—black armbands worn to exhibit opposition to this Nation’s involvement in Vietnam—was singled out for prohibition. Clearly, the prohibition of expression of one particular opinion, at least without evidence that it is necessary to avoid material and substantial interference with schoolwork or discipline, is not constitutionally permissible. In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school as well as out of school are “persons” under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State. In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. They may not be confined to the
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expression of those sentiments that are officially approved. In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views. . . . If a regulation were adopted by school officials forbidding discussion of the Vietnam conflict, or the expression by any student of opposition to it anywhere on school property except as part of a prescribed classroom exercise, it would be obvious that the regulation would violate the constitutional rights of students, at least if it could not be justified by a showing that the students’ activities would materially and substantially disrupt the work and discipline of the school. . . . In the circumstances of the present case, the prohibition of the silent, passive “witness of the armbands,” as one of the children called it, is no less offensive to the constitution’s guarantees. As we have discussed, the record does not demonstrate any facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities, and no disturbances or disorders on the school premises in fact occurred. These petitioners merely went about their ordained rounds in school. Their deviation consisted only in wearing on their sleeve a band of black cloth, not more than two inches wide. They wore it to exhibit their disapproval of the Vietnam hostilities and their advocacy of a truce, to make their views known, and, by their example, to influence others to adopt them. They neither interrupted school activities nor sought to intrude in the school affairs or the lives of others. They caused discussion outside of the classrooms, but no interference with work and no disorder. In the circumstances, our Constitution does not permit officials of the State to deny their form of expression. We express no opinion as to the form of relief which should be granted, this being a matter for the lower courts to determine. We reverse and remand for further proceedings consistent with this opinion. Reversed and remanded.
CASE NOTE School Regulation of Out-of-School Activities. The rule of law regarding school regulation of student out-of-school activities is explained by the
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American Law Reports. The general rule is that the power of the school authorities does not cease absolutely when the pupils leave the school premises. “It is axiomatic that school rules must be reasonable. The test of the reasonableness of a school regulation affecting out-of-school conduct has usually, explicitly or implicitly, been whether the out-of-school conduct being regulated has a direct and immediate effect on the discipline or general welfare of the school.” Daniel E. Feld, 53 A.L.R.3d 1124, Cumulative Supplement, 2007.
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Obscenity and Uncivil Discourse
Obscenity. Outside the school, political and other kinds of public speech are protected unless the speech is obscene. On the other hand, in public schools, the speech standard is different and can be controlled if it is “uncivil,” lewd, vulgar, or conveys sexual innuendo to school audiences. Because obscenity is not constitutionally protected under the speech or press provisions of the First Amendment,34 the U.S. Supreme Court has been diligent in its attempts to define the term so as not to permit regulatory overreach that could conceivably encroach on constitutional liberties of speech and press. The difficulty that the Supreme Court has experienced in conceptualizing a workable definition of obscenity is illustrated by Justice William Brennan’s frustrations with the issue. He said, “I put sixteen years into that damn obscenity thing. I tried and I tried, and I waffled back and forth, and finally gave up. If you can’t define it, you can’t prosecute people for it.”35 Yet, over the years, the Supreme Court has defined obscenity in a series of cases,36 and it thereby provides a legal context in which our society must operate. It was in the 1952 Beauharnais case37 in which Justice Frankfurter wrote for the Court, that obscenity is without constitutional protection; that by definition, obscenity is not entitled to protection. In this case, the Court drew the distinction between sex and obscenity, saying that “obscene material is material which deals with sex in a manner appealing to the prurient interest,”38 whereas the mere portrayal of sex in art, literature, scientific works, and similar forums “is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press.”
Later, the Supreme Court in Roth v. United States established the formula to identify obscenity as follows: Material may be determined to be obscene and, thus, beyond constitutional protection, if it (a) appeals to a prurient interest in sex; (b) has no serious literary, artistic, political, or scientific merit; and (c) is on the whole offensive to the average person under contemporary community standards.39
The word prurient has caused definitional problems since its inception. The Court has sought to clarify its meaning by defining it as material that has “a tendency to excite lustful thoughts.”40 Some justices, however, early expressed the view that even this definition was too imprecise, and that such imprecision of terminology would give “the censor free range over a vast domain.”41 Not long after Roth, it was generally concluded that the Court intended to require that offensive material, taken as a whole, must be determined by how the average person reflecting the attitudes of a common community standard would adjudge the material. Further, because “prurient” could be understood differently in different circumstances, it was concluded that the terminology was so subjective that it could be applied only in a relative sense.42 This “variable obscenity” standard manifested such uncertainty that Justice Potter Stewart was led to conclude in despair that he could not define it, but that “I know it when I see it.”43 Finally, the definitional problem forced a modification of the precedent that was set forth in Miller v. California, prescribing a new test for obscenity. The basic guidelines are as follows: (a) [W]hether “the average person, applying contemporary community standards,” would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.44
The first part of the test adopted a community standards test and implicitly rejected a national standards test for obscenity. In Miller, the Supreme Court stated explicitly that “[i]n resolving the inevitable sensitive questions of fact and law, we must continue to rely on the jury system, accompanied by safeguards that
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Obscenity and Uncivil Discourse
judges, rules of evidence, presumption of innocence, and other protective features provide.”45 Such issues cannot all be decided under perceptions of the judges at the U.S. Supreme Court or national level. The Court concluded that the trier of fact should not be required to guess at some hypothetical “medium” standard for the nation. Part two of the test allows the state to prohibit patently offensive “representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.”46 The third part of the test replaced the earlier test standard of “utterly without redeeming social value.”47 The Miller standard appears to be better defined and a bit more restrictive than earlier versions. The word “serious” replaces “utterly,” and “social value” is replaced by the increased specification of “literary, artistic, political, or scientific value.” Later, in 1987, in an elaboration on Miller, the Supreme Court held that the third prong of the Miller test is not to be determined by a jury applying “local contemporary community standards,” but rather by a jury being instructed to decide whether a reasonable person would find serious literary, artistic, political, or scientific value in the material taken as a whole: “The value of a work, unlike its prurient appeal or patent offensiveness [that is, unlike the first two elements of Miller] does not vary from community to community based on the degree of local acceptance it has won.”48 Uncivil Discourse. This definition of obscenity is the view of the Supreme Court as it prevails today. Public schools, however, are a more restricted legal environment, with an educational purpose and a clientele of youth who are subject to curricular prescription as devised by the state. Obscenity is, of course, proscribed in schools, but school officials can go even further in preventing the use or distribution of offensive materials in schools, regardless of whether such materials fall within the strict definition of obscenity. The primary precedent covering such situations49 is Hazelwood School District v. Kuhlmeier, in which the U.S. Supreme Court vested educators with substantial discretion in control of speech and press in the school. The Court pointedly held that “[e]ducators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are
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reasonably related to legitimate pedagogical concerns.”50 Educators can, in legitimate exercise of their prerogatives, prescribe the content of the curriculum and censor inappropriate materials. The Kuhlmeier Court said further: It is only when the decision to censor a schoolsponsored publication, theatrical production, or other vehicle of student expression has no valid educational purpose that the First Amendment is so directly and sharply implicated as to require judicial intervention to protect students’ constitutional rights.51
Thus, the Supreme Court does not hold public school regulation of speech to the same obscenity standards that it has so laboriously struggled with in adult speech. Speech in public schools does not need to be strictly classified as “obscene” to be prohibited as “unprotected” speech. In Bethel v. Fraser,52 the Supreme Court held that it is a “highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse.”53 In Fraser, the Court distinguished the free speech rules of public discourse of adults outside of public schools from the discourse within public schools. The Court said that the “First Amendment guarantees wide freedoms in matters of adult public discourse, but it does not follow that simply because an offensive form of expression may not be prohibited to adults making what the speaker considers to be a political point that the same latitude must be permitted to children in the public school.”54 Thus, public schools are not required to show that utterances in the school transgress the technical definition of “obscenity” to be prohibited. In the public school, vulgar and lewd speech is unprotected. “Uncivil discourse” may, therefore, be prohibited in public schools. In Fraser, the Court laid down an attendant category of unprotected speech that is applicable to public schools, if not to the public at large, that prohibits speech and expression by students that violate “fundamental values of ‘habits and manners of civility’ essential to a democratic society.” The Court pointed out that the public school system has the essential responsibility of inculcating “the habits and manners of civility as values” . . . “indispensable to the practice of self-government.” Thus, the Court enunciated a second reason that speech and expression cannot be viewed as absolutes in the setting of the public school.
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THE MEANING OF FRASER Fraser advances two basic principles: “First, Fraser’s holding demonstrates that “the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings.” Second, Fraser established that the mode of analysis set forth in Tinker is not absolute. —Morse v. Frederick.
Students’ Lewd and Indecent Speech Is Not Protected by First Amendment
Bethel School District No. 403 v. Fraser Supreme Court of the United States, 1986. 478 U.S. 675, 106 S. Ct. 3159.
Chief Justice BURGER delivered the opinion of the Court. We granted certiorari to decide whether the First Amendment prevents a school district from disciplining a high school student for giving a lewd speech at a school assembly. On April 26, 1983, respondent Matthew N. Fraser, a student at Bethel High School in Bethel, Washington, delivered a speech nominating a fellow student for student elective office. Approximately 600 high school students, many of whom were 14-year-olds, attended the assembly. Students were required to attend the assembly or to report to the study hall. The assembly was part of a school-sponsored educational program in self-government. Students who elected not to attend the assembly were required to report to study hall. During the entire speech, Fraser referred to his candidate in terms of an elaborate, graphic, and explicit sexual metaphor. (In part Fraser said: “ ‘I know a man who is firm—he’s firm in his pants, he’s firm in his shirt, his character is firm—but most . . . of all, his belief in you, the students of Bethel, is firm. Jeff Kuhlman is a man who takes his point and
pounds it in. If necessary, he’ll take an issue and nail it to the wall. He doesn’t attack things in spurts—he drives hard, pushing and pushing until finally—he succeeds. Jeff is a man who will go to the very end—even the climax, for each and every one of you. So vote for Jeff for A.S.B. vice-president—he’ll never come between you and the best our high school can be.”) Two of Fraser’s teachers, with whom he discussed the contents of his speech in advance, informed him that the speech was “inappropriate and that he probably should not deliver it,” and that his delivery of the speech might have “severe consequences.” During Fraser ’s delivery of the speech, a school counselor observed the reaction of students to the speech. Some students hooted and yelled; some by gestures graphically simulated the sexual activities pointedly alluded to in respondent’s speech. Other students appeared to be bewildered and embarrassed by the speech. One teacher reported that on the day following the speech, she found it necessary to forgo a portion of the scheduled class lesson in order to discuss the speech with the class. A Bethel High School disciplinary rule prohibiting the use of obscene language in the school provides: Conduct which materially and substantially interferes with the educational process is prohibited, including the use of obscene, profane language or gestures.
The morning after the assembly, the Assistant Principal called Fraser into her office and notified him that the school considered his speech to have been a violation of this rule. Fraser was presented with copies of five letters submitted by teachers, describing his conduct at the assembly; he was given a chance to explain his conduct, and he admitted to having given the speech described and that he deliberately used sexual innuendo in the speech. Fraser was then informed that he would be suspended for three days, and that his name would be removed from the list of candidates for graduation speaker at the school’s commencement exercises. Fraser sought review of this disciplinary action through the School District’s grievance procedures. . . . The examiner determined that the speech fell within the ordinary meaning of “obscene,” as used in the disruptive-conduct
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Obscenity and Uncivil Discourse
rule, and affirmed the discipline in its entirety. Fraser served two days of his suspension, and was allowed to return to school on the third day. Respondent, by his father as guardian ad litem, then brought this action [and] . . . alleged violation of his First Amendment right to freedom of speech and sought both injunctive relief and monetary damages under 42 U.S.C. § 1983. . . . The Court of Appeals for the Ninth Circuit affirmed the judgment of the District Court, 755 F.2d 1356 (1985), holding that respondent’s speech was indistinguishable from the protest armband in Tinker v. Des Moines Independent Community School Dist. . . . The court explicitly rejected the School District’s argument that the speech, unlike the passive conduct of wearing a black armband, had a disruptive effect on the educational process. The Court of Appeals also rejected the School District’s argument that it had an interest in protecting an essentially captive audience of minors from lewd and indecent language in a setting sponsored by the school, reasoning that the school board’s “unbridled discretion” to determine what discourse is “decent” would “increase the risk of cementing white, middle-class standards for determining what is acceptable and proper speech and behavior in our public schools.” . . . Finally, the Court of Appeals rejected the School District’s argument that, incident to its responsibility for the school curriculum, it had the power to control the language used to express ideas during a schoolsponsored activity. We granted certiorari. . . . We reverse. This Court acknowledged in Tinker v. Des Moines Independent Community School Dist. . . . that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” . . . The Court of Appeals read that case as precluding any discipline of Fraser for indecent speech and lewd conduct in the school assembly. That court appears to have proceeded on the theory that the use of lewd and obscene speech in order to make what the speaker considered to be a point in a nominating speech for a fellow student was essentially the same as the wearing of an armband in Tinker as a form of protest or the expression of a political position. The marked distinction between the political “message” of the armbands in Tinker and
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the sexual content of respondent’s speech in this case seems to have been given little weight by the Court of Appeals. In upholding the students’ right to engage in a non-disruptive, passive expression of a political viewpoint in Tinker, this Court was careful to note that the case did “not concern speech or action that intrudes upon the work of the schools or the rights of other students.” It is against this background that we turn to consider the level of First Amendment protection accorded to Fraser’s utterances and actions before an official high school assembly attended by 600 students. The role and purpose of the American public school system was well described by two historians, saying “public education must prepare pupils for citizenship in the Republic. . . . It must inculcate the habits and manners of civility as values in themselves conducive to happiness and as indispensable to the practice of selfgovernment in the community and the nation.” C. Beard & M. Beard, New Basic History of the United States 228 (1968). . . . These fundamental values of “habits and manners of civility” essential to a democratic society must, of course, include tolerance of divergent political and religious views, even when the views expressed may be unpopular. But these “fundamental values” must also take into account consideration of the sensibilities of others, and, in the case of a school, the sensibilities of fellow students. The undoubted freedom to advocate unpopular and controversial views in schools and classrooms must be balanced against the society’s countervailing interest in teaching students the boundaries of socially appropriate behavior. Even the most heated political discourse in a democratic society requires consideration for the personal sensibilities of the other participants and audiences. In our Nation’s legislative halls, where some of the most vigorous political debates in our society are carried on, there are rules prohibiting the use of expressions offensive to other participants in the debate. . . . Can it be that what is proscribed in the halls of Congress is beyond the reach of school officials to regulate? The First Amendment guarantees wide freedom in matters of adult public discourse. A sharply divided Court upheld the right to express
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an anti-draft viewpoint in a public place, albeit in terms highly offensive to most citizens. . . . It does not follow, however, that simply because the use of an offensive form of expression may not be prohibited to adults making what the speaker considers a political point that the same latitude must be permitted to children in a public school. . . . Surely it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse. Indeed, the “fundamental values necessary to the maintenance of a democratic political system” disfavor the use of terms of debate highly offensive or highly threatening to others. Nothing in the Constitution prohibits the states from insisting that certain modes of expression are inappropriate and subject to sanctions. The inculcation of these values is truly the “work of the schools.” . . . The determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the school board. The process of educating our youth for citizenship in public schools is not confined to books, the curriculum, and the civics class; schools must teach by example the shared values of a civilized social order. Consciously or otherwise, teachers—and indeed the older students— demonstrate the appropriate form of civil discourse and political expression by their conduct and deportment in and out of class. Inescapably, like parents, they are role models. The schools, as instruments of the state, may determine that the essential lessons of civil, mature conduct cannot be conveyed in a school that tolerates lewd, indecent, or offensive speech and conduct such as that indulged in by this confused boy. The pervasive sexual innuendo in Fraser ’s speech was plainly offensive to both teachers and students—indeed to any mature person. By glorifying male sexuality, and in its verbal content, the speech was acutely insulting to teenage girl students. . . . The speech could well be seriously damaging to its less mature audience, many of whom were only 14 years old and on the threshold of awareness of human sexuality. Some students were reported as bewildered by the speech and the reaction of mimicry it provoked. This Court’s First Amendment jurisprudence has acknowledged limitations on the otherwise absolute interest of the speaker in reaching an
unlimited audience where the speech is sexually explicit and the audience may include children. . . . These cases recognize the obvious concern on the part of parents, and school authorities acting in loco parentis to protect children—especially in a captive audience—from exposure to sexually explicit, indecent, or lewd speech. We have also recognized an interest in protecting minors from exposure to vulgar and offensive spoken language. . . . We hold that petitioner School District acted entirely within its permissible authority in imposing sanctions upon Fraser in response to his offensively lewd and indecent speech. Unlike the sanctions imposed on the students wearing armbands in Tinker, the penalties imposed in this case were unrelated to any political viewpoint. The First Amendment does not prevent the school officials from determining that to permit a vulgar and lewd speech such as respondent’s would undermine the school’s basic educational mission. A high school assembly or classroom is no place for a sexually explicit monologue directed towards an unsuspecting audience of teenage students. Accordingly, it was perfectly appropriate for the school to disassociate itself to make the point to the pupils that vulgar speech and lewd conduct is wholly inconsistent with the “fundamental values” of public school education. Justice Black, dissenting in Tinker, made a point that is especially relevant in this case: I wish therefore . . . to disclaim any purpose . . . to hold that the federal Constitution compels the teachers, parents and elected school officials to surrender control of the American public school system to public school students.
Respondent contends that the circumstances of his suspension violated due process because he had no way of knowing that the delivery of the speech in question would subject him to disciplinary sanctions. This argument is wholly without merit. We have recognized that “maintaining security and order in the schools requires a certain degree of flexibility in school disciplinary procedures, and we have respected the value of preserving the informality of the student-teacher relationship.” . . . Given the school’s need to be able to impose disciplinary sanctions for a wide range of unanticipated conduct disruptive of the educational process, the school disciplinary rules
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Obscenity and Uncivil Discourse
need not be as detailed as a criminal code which imposes criminal sanctions. . . . Two days’ suspension from school does not rise to the level of a penal sanctions calling for the full panoply of procedural due process protections applicable to a criminal prosecution. . . . The school disciplinary rule proscribing “obscene” language and the prespeech admonitions of teachers gave adequate warning to Fraser that his lewd speech could subject him to sanctions. The judgment of the Court of Appeals for the Ninth Circuit is Reversed.
School Officials Did Not Violate Free Speech by Confiscating Pro-Drug “Bong Hits 4 Jesus” Banner and Suspending Offending Student
Morse v. Frederick Supreme Court of the United States, 2007. 551 U.S. 393, 127 S. Ct. 2618.
ROBERTS, C.J., delivered the opinion of the Court, in which SCALIA, KENNEDY, THOMAS, and ALITO, JJ., joined. THOMAS, J., filed a concurring opinion. ALITO, J., filed a concurring opinion, in which KENNEDY, J., joined. BREYER, J., filed an opinion concurring in the judgment in part and dissenting in part. STEVENS, J., filed a dissenting opinion, in which SOUTER and GINSBURG, JJ., joined. At a school-sanctioned and school-supervised event, a high school principal saw some of her students unfurl a large banner conveying a message she reasonably regarded as promoting illegal drug use. Consistent with established school policy prohibiting such messages at school events, the principal directed the students to take down the banner. One student—among those who had brought the banner to the event— refused to do so. The principal confiscated the banner and later suspended the student. The Ninth Circuit held that the principal’s actions violated the First Amendment, and that the student could sue the principal for damages.
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Our cases make clear that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines. At the same time, we have held that “the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings,” Bethel School Dist. No. 403 v. Fraser, and that the rights of students “must be ‘applied in light of the special characteristics of the school environment.’ ” Hazelwood School Dist. v. Kuhlmeier. Consistent with these principles, we hold that schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use. We conclude that the school officials in this case did not violate the First Amendment by confiscating the pro-drug banner and suspending the student responsible for it. On January 24, 2002, the Olympic Torch Relay passed through Juneau, Alaska, on its way to the winter games in Salt Lake City, Utah. The torchbearers were to proceed along a street in front of Juneau-Douglas High School (JDHS) while school was in session. Petitioner Deborah Morse, the school principal, decided to permit staff and students to participate in the Torch Relay as an approved social event or class trip. Students were allowed to leave class to observe the relay from either side of the street. Teachers and administrative officials monitored the students’ actions. Respondent Joseph Frederick, a JDHS senior, was late to school that day. When he arrived, he joined his friends (all but one of whom was JDHS students) across the street from the school to watch the event. Not all the students waited patiently. Some became rambunctious, throwing plastic cola bottles and snowballs and scuffling with their classmates. As the torchbearers and camera crews passed by, Frederick and his friends unfurled a 14-foot banner bearing the phrase: “BONG HITS 4 JESUS.” The large banner was easily readable by the students on the other side of the street. Principal Morse immediately crossed the street and demanded that the banner be taken down. Everyone but Frederick complied. Morse confiscated the banner and told Frederick to report to her office, where she suspended him for 10 days. Morse later explained that she told Frederick to take the banner down because she
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thought it encouraged illegal drug use, in violation of established school policy. Juneau School Board Policy No. 5520 states: “The Board specifically prohibits any assembly or public expression that . . . advocates the use of substances that are illegal to minors. . . .” In addition, Juneau School Board Policy No. 5850 subjects “[p]upils who participate in approved social events and class trips” to the same student conduct rules that apply during the regular school program. Frederick administratively appealed his suspension, but the Juneau School District Superintendent upheld it, limiting it to time served (8 days). In a memorandum setting forth his reasons, the superintendent determined that Frederick had displayed his banner “in the midst of his fellow students, during school hours, at a school-sanctioned activity.” He further explained that Frederick “was not disciplined because the principal of the school ‘disagreed’ with his message, but because his speech appeared to advocate the use of illegal drugs.” . . . Relying on our decision in Fraser, the superintendent concluded that the principal’s actions were permissible because Frederick’s banner was “speech or action that intrudes upon the work of the schools.” The Juneau School District Board of Education upheld the suspension. Frederick then filed suit under 42 U.S.C. § 1983, alleging that the school board and Morse had violated his First Amendment rights. . . . We granted certiorari on two questions: whether Frederick had a First Amendment right to wield his banner, and, if so, whether that right was so clearly established that the principal may be held liable for damages. We resolve the first question against Frederick, and therefore have no occasion to reach the second. At the outset, we reject Frederick’s argument that this is not a school speech case—as has every other authority to address the question. . . . The event occurred during normal school hours. It was sanctioned by Principal Morse “as an approved social event or class trip,” and the school district’s rules expressly provide that pupils in “approved social events and class trips are subject to district rules for student conduct.” Teachers and administrators were interspersed among the students and charged with supervising them. The high school band and cheerleaders
performed. Frederick, standing among other JDHS students across the street from the school, directed his banner toward the school, making it plainly visible to most students. Under these circumstances, we agree with the superintendent that Frederick cannot “stand in the midst of his fellow students, during school hours, at a school-sanctioned activity and claim he is not at school.” . . . The message on Frederick’s banner is cryptic. It is no doubt offensive to some, perhaps amusing to others. To still others, it probably means nothing at all. Frederick himself claimed “that the words were just nonsense meant to attract television cameras.” But Principal Morse thought the banner would be interpreted by those viewing it as promoting illegal drug use, and that interpretation is plainly a reasonable one. As Morse later explained in a declaration, when she saw the sign, she thought that “the reference to a ‘bong hit’ would be widely understood by high school students and others as referring to smoking marijuana.” She further believed that “display of the banner would be construed by students, district personnel, parents, and others witnessing the display of the banner as advocating or promoting illegal drug use”—in violation of school policy. (“I told Frederick and the other members of his group to put the banner down because I felt that it violated the [school] policy against displaying . . . material that advertises or promotes use of illegal drugs.”) We agree with Morse. At least two interpretations of the words on the banner demonstrate that the sign advocated the use of illegal drugs. First, the phrase could be interpreted as an imperative: “[Take] bong hits . . .”—a message equivalent, as Morse explained in her declaration, to “smoke marijuana” or “use an illegal drug.” Alternatively, the phrase could be viewed as celebrating drug use—“bong hits [are a good thing],” or “[we take] bong hits”—and we discern no meaningful distinction between celebrating illegal drug use in the midst of fellow students and outright advocacy or promotion. . . . The pro-drug interpretation of the banner gains further plausibility given the paucity of alternative meanings the banner might bear. The best Frederick can come up with is that the banner is “meaningless and funny.”
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Obscenity and Uncivil Discourse
The question thus becomes whether a principal may, consistent with the First Amendment, restrict student speech at a school event, when that speech is reasonably viewed as promoting illegal drug use. We hold that she may. In Tinker, this Court made clear that “First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students.” . . . Tinker held that student expression may not be suppressed unless school officials reasonably conclude that it will “materially and substantially disrupt the work and discipline of the school.” . . . This court’s next student speech case was Fraser. . . . The mode of analysis employed in Fraser is not entirely clear. The Court was plainly attuned to the content of Fraser’s speech, citing the “marked distinction between the political ‘message’ of the armbands in Tinker and the sexual content of Fraser’s speech.” But the Court also reasoned that school boards have the authority to determine “what manner of speech in the classroom or in school assembly is inappropriate.” . . . We need not resolve this debate to decide this case. For present purposes, it is enough to distill from Fraser two basic principles. First, Fraser’s holding demonstrates that “the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings.” Had Fraser delivered the same speech in a public forum outside the school context, it would have been protected. In school, however, Fraser’s First Amendment rights were circumscribed “in light of the special characteristics of the school environment.” Tinker. Second, Fraser established that the mode of analysis set forth in Tinker is not absolute. Whatever approach Fraser employed, it certainly did not conduct the “substantial disruption” analysis prescribed by Tinker. . . . Our most recent student speech case, Kuhlmeier, concerned “expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school.” . . . Kuhlmeier does not control this case because no one would reasonably believe that Frederick’s banner bore the school’s imprimatur. The case is nevertheless instructive because it confirms both principles cited above. Kuhlmeier acknowledged that schools may regulate some speech “even
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though the government could not censor similar speech outside the school.” . . . Drawing on the principles applied in our student speech cases, we have held in the Fourth Amendment context that “while children assuredly do not ‘shed their constitutional rights . . . at the schoolhouse gate,’ . . . the nature of those rights is what is appropriate for children in school.” Vernonia School Dist. 47J v. Acton. In particular, “the school setting requires some easing of the restrictions to which searches by public authorities are ordinarily subject.” New Jersey v. T.L.O. See Vernonia, (“Fourth Amendment rights, no less than First and Fourteenth Amendment rights, are different in public schools than elsewhere . . .”); Board of Ed. of Independent School Dist. No. 92 of Pottawatomie Cty. v. Earls, (“ ‘special needs’ inhere in the public school context”; “[w]hile schoolchildren do not shed their constitutional rights when they enter the schoolhouse, Fourth Amendment rights . . . are different in public schools than elsewhere; the ‘reasonableness’ inquiry cannot disregard the schools’ custodial and tutelary responsibility for children”) (quoting Vernonia). Even more to the point, these cases also recognize that deterring drug use by schoolchildren is an “important—indeed, perhaps compelling” interest. . . . Just five years ago, we wrote: “The drug abuse problem among our Nation’s youth has hardly abated since Vernonia was decided in 1995. In fact, evidence suggests that it has only grown worse.” The problem remains serious today. Congress has declared that part of a school’s job is educating students about the dangers of illegal drug use. It has provided billions of dollars to support state and local drug-prevention programs, Brief for United States as Amicus Curiae 1, and required that schools receiving federal funds under the Safe and Drug-Free Schools and Communities Act of 1994 certify that their drug prevention programs “convey a clear and consistent message that . . . the illegal use of drugs [is] wrong and harmful.” 20 U.S.C. § 7114(d)(6) (2000 ed., Supp. IV). Thousands of school boards throughout the country—including JDHS—have adopted policies aimed at effectuating this message. . . . Student speech celebrating illegal drug use at a school event, in the presence of school administrators
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and teachers, thus poses a particular challenge for school officials working to protect those entrusted to their care from the dangers of drug abuse. The “special characteristics of the school environment,” . . . and the governmental interest in stopping student drug abuse-reflected in the policies of Congress and myriad school boards, including JDHS—allow schools to restrict student expression that they reasonably regard as promoting illegal drug use. Tinker warned that schools may not prohibit student speech because of “undifferentiated fear or apprehension of disturbance” or “a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.” The danger here is far more serious and palpable. The particular concern to prevent student drug abuse at issue here, embodied in established school policy, extends well beyond an abstract desire to avoid controversy. School principals have a difficult job, and a vitally important one. When Frederick suddenly and unexpectedly unfurled his banner, Morse had to decide to act—or not act—on the spot. It was reasonable for her to conclude that the banner promoted illegal drug use—in violation of established school policy—and that failing to act would send a powerful message to the students in her charge, including Frederick, about how serious the school was about the dangers of illegal drug use. The First Amendment does not require schools to tolerate at school events student expression that contributes to those dangers. The judgment of the United States Court of Appeals for the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.
CASE NOTE Section 1983. Throughout this book, reference is made to Section 1983 and its importance to civil rights. (See in particular Chapter 13, where Section 1983 liability is explained.) Section 1983 came about as a result of the continuing discrimination against African Americans in the South after the Civil War. By 1870, it was evident that the civil rights amendments— Thirteenth, Fourteenth, and Fifteenth—had no enforceable teeth and terrorism was rampart in the repression of African Americans. The
Klu Klux Klan intimidated, tortured, and murdered African Americans across the South. The Fifteenth Amendment was passed on March 30, 1870, “The rights of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” On May 31, 1870, Congress enacted the first of three Enforcement Acts, making it a federal offense to deprive anyone of his or her civil or political rights. The 1870 Act forbid state officials from discriminating against voters on the basis of race or color, and outlawed force, bribery, threats, and intimidation of voters. Importantly, the Act prohibited disguised groups from going “upon public highways, or upon the premises of another” with the intent to interfere with constitutional rights. Klan terrorism, however, continued, and segregationists captured the political power in southern state legislatures. The problem was of such great national urgency that President Grant wrote to House Speaker James G. Blaine saying that the primary goal of Congress should be to address the one issue of terrorism in the South as a priority over everything else. Responding, the Congress enacted the Klu Klux Klan bill on April 20, 1871, giving powers to the president to control the lawlessness in the South. See: Jean Edward Smith, Grant (New York: Simon & Schuster, 2001), pp. 544–545. Section 1983 was part of the Civil Rights Act of 1871. It enabled persons who had been denied civil rights by unconstitutional state action to sue the wrongdoing “person” in an action in law or equity. The law today is now only slightly modified and in its present form provides that: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other persons within the jurisdiction, thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . (42 U.S.C.A. § 1983)
The Civil Rights Act of 1871 also provided for redress against conspiracies to deny civil rights (42 U.S.C.A. § 1985(3)). The critical part of § 1983 is that it provides damages and attorneys’ fees to be paid by the person or government entity that
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Obscenity and Uncivil Discourse
denies constitutional or statutory civil rights. The Civil Rights Act of 1871 lay largely dormant as a mechanism to enforce civil rights until Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473 (1961). According to Collins, the Court “dusted off § 1983 after a long period of disuse and it became the principal enforcement tool to enforce constitutional and civil rights that it is today.” See: Michael G. Collins, Section 1983 Litigation (St. Paul, Minn.: West Publishing Co., 1997), pp. 1–11.
School’s Ban of Confederate Flags from School Grounds Is Not an Unconstitutional Restriction of Students’ Free Speech Rights
Scott v. School Board of Alachua County United States Court of Appeals, Eleventh Circuit, 2003. 324 F.3d 1246, cert den. 540 U.S. 824, 124 S. Ct. 156 (2003).
PER CURIAM: Plaintiffs Franklin Jay Scott, Jr. and Nicholas Thomas (“Plaintiffs”), then both Santa Fe High School students, filed a 42 U.S.C. § 1983 lawsuit against defendant School Board of Alachua County (“School Board”), alleging that the discipline imposed by Principal Lamar Simmons, school suspensions, for their displaying of a Confederate flag on school premises, after previously being told not to do so, violated their First Amendment right to symbolic speech. The district court granted the School Board’s motion for summary judgment. Plaintiffs appeal asserting three arguments. They first argue that their school suspensions were based on an inadequate showing of a material and substantial disruption and thus violated the Court’s decision in Tinker v. Des Moines Indep. Cmty. School Dist. Next, plaintiffs argue that the School Board’s “after-the-fact justifications” for Principal Simmons’ unwritten ban of Confederate flags were pretextual and thus expose the School Board to monetary liability. Third, plaintiffs assert that genuine issues of material fact exist as to whether: (1) the School Board was aware or was deliberately indifferent to Principal Simmons’ unwritten ban of
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Confederate flags and (2) the racial impact of a prior disruption in the high school was adequate to precipitate Principal Simmons’ unwritten ban. After careful review of the briefs, record, and relevant case law, we affirm the decision of the district court, holding that Principal Simmons’ unwritten ban of Confederate flags on school grounds was not an unconstitutional restriction of the plaintiffs’ First Amendment rights. As such, there is no actionable § 1983 claim in this case. Having decided that, we need not consider whether the Board was aware or was deliberately indifferent to Principal Simmons’ unwritten ban of Confederate flags. Prior to setting forth the applicable portions of the district court’s well-reasoned opinion, we note that this First Amendment freedom of expression case stands against the unique backdrop of a public school. Although public school students’ First Amendment rights are not forfeited at the school door, those rights should not interfere with a school administrator’s professional observation that certain expressions have led to, and therefore could lead to, an unhealthy and potentially unsafe learning environment for the children they serve. Short of a constitutional violation based on a school administrator’s unsubstantiated infringement on a student’s speech or other expressions, this Court will not interfere with the administration of a school. The district court properly determined that Principal Simmons’ unwritten ban on displaying the Confederate flag was not a violation of the plaintiffs’ First Amendment rights. The applicable portions of the Order of District Judge Maurice M. Paul giving the reasons for this decision, which we accept, are as follows: Simply put, the defendant’s second argument is that the ban on Confederate symbols was appropriate based on the potential disruption that the displaying of Confederate symbols would likely create. After a careful analysis, . . . the Court concludes that school officials can appropriately censure students’ speech under either of the following two theories. First, from the Tinker case, school officials are on their most solid footing when they reasonably fear that certain speech is likely to “appreciably disrupt the appropriate discipline in the school.” Second, from Fraser, even if disruption is not immediately likely, school officials are charged with the duty
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to “inculcate the habits and manners of civility as values conducive both to happiness and to the practice of self-government.” To do so, they must have the flexibility to control the tenor and contours of student speech within school walls or on school property, even if such speech does not result in a reasonable fear of immediate disruption. As the Supreme Court stated in Fraser: Surely it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse. Indeed, the “fundamental values necessary to the maintenance of a democratic political system” disfavor the use of terms of debate highly offensive or highly threatening to others. Nothing in the Constitution prohibits the states from insisting that certain modes of expression are inappropriate and subject to sanctions. The inculcation of these values is truly the “work of the schools.” Tinker, 393 U.S. at 508, 89 S. Ct. at 737. . . . The determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the school board. The process of educating our youth for citizenship in public schools is not confined to books, the curriculum, and the civics class; schools must teach by example the shared values of a civilized social order. Consciously or otherwise, teachers—and indeed the older students—demonstrate the appropriate form of civil discourse and political expression by their conduct and deportment in and out of class. In the case sub judice (under judicial consideration), however, the above language merely begs the question. The real difference of opinion in this case, of course, is whether the symbol should be considered “vulgar and offensive” at all. That is, some say the symbol is not offensive if not intended to be offensive. Others say it is innately offensive, while still others argue that, even if the symbol is not intended to be offensive or innately offensive, it is still dangerous because it is perceived as offensive by so many people. This debate, which is being played out in state legislatures, newspaper editorial columns and classrooms across the South is exemplified in the expert witness disclosures offered by the two sides in this case. The plaintiffs’ experts plan to testify that “the Confederate battle flag is not a symbol of racism, but rather a historical symbol embodying the philosophical and political principals
of a decentralized form of government in which states and local government retain all powers not expressly ceded to the centralized federal government under the constitution” and that thus the flag is merely “a symbol of southern heritage.” . . . The defendant’s expert plans to testify that “from its inception, the confederacy was a political movement dedicated to the preservation of the institution of slavery. Therefore, from its inception, the confederacy and its symbols represented approval of white supremacy” and that “the confederate flag is a symbol that has acquired numerous racist associations to the point that the flag itself has understandably come to be perceived as a racist symbol.” . . . The problem, of course, is that both of them are correct. And they are correct not only in describing the different emotions this symbol evokes, but also in connoting the depth of those emotions through their choice of words. Words like “symbol,” “heritage,” “racism,” “power,” “slavery,” and “white supremacy” are highly emotionally charged and reveal that for many, perhaps most, this is not merely an intellectual discourse. Real feelings—strong feelings—are involved. It is not only constitutionally allowable for school officials to closely contour the range of expression children are permitted regarding such volatile issues, it is their duty to do so. . . . Part of a public school’s essential mission must be to teach students of differing races, creeds and colors to engage each other in civil terms rather than in “terms of debate highly offensive or highly threatening to others.” . . . There is no evidence that the school district has attempted to suppress civil debate on racial matters, but the district had concluded that the display of certain symbols that have become associated with racial prejudice are so likely to provoke feelings of hatred and ill will in others that they are inappropriate in the school context. In light of the above principles, the Court finds that the ban on the display of Confederate symbols was not unconstitutional. School officials presented evidence of racial tensions existing at the school and provided testimony regarding fights which appeared to be racially based in the months leading up to the actions underlying this case. Additionally, one only needs to consult the evening news to understand the concern school administrators had regarding the disruption, hurt
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Obscenity and Uncivil Discourse
feelings, emotional trauma and outright violence which the display of the symbols involved in this case could provoke. Therefore, under both Tinker and Fraser, the school administrators did nothing wrong in banning the display of Confederate flags on school property. In sum, the school administrators did not violate the plaintiffs’ constitutional rights by banning the display of Confederate flags on school grounds and subsequently enforcing the ban by suspending them. Having found no constitutional right violated, the plaintiffs have failed to set forth a prima facie case for § 1983 relief. The district court properly granted the defendant’s motion for summary judgment. AFFIRMED.
CASE NOTES Confederate Flags and Symbols. Confederate flags or insignia and symbols can be banned if school officials have reason to believe that such will cause disruption in the school, per Tinker criteria. 1. The U.S. Court of Appeals, Eighth Circuit, held in 2009 that the suspensions of students who wore clothing depicting the Confederate flag did not contravene the constitutional speech and expression. Various incidents between blacks and whites had transpired at school and school events that were fueled by the symbols. The incidents were of such magnitude to suggest to the school officials that “material and substantial disruption” of the school would likely ensue. The court agreed, invoking Tinker v. Des Moines and upholding the school official’s decisions. B.W.A. v. Farmington R-7 School District, 554 F.3d 734 (8th Cir. 2009). 2. In a Tennessee high school where there had been several incidents of racial unrest, accompanied by fights and threats, one incident even causing a school lockdown by local police, and there had also been civil rights complaints filed against the school district alleging racial hostility, a federal district court upheld a ban on shirts depicting Confederate flags. Students who sought to wear the shirts claimed that they had a First Amendment free speech right for such political expression. The court ruled that the school officials did not need to show a direct causal relationship between the flags and disruption, but, rather,
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only needed to believe or reasonably forecast that the display of Confederate flags would cause disruption and interfere with the conduct of the school. D. B. v. Lafon, 452 F. Supp. 2d 813 (E.D. Tenn. 2006). 3. In a West Virginia case that reached a different result, a new school principal inserted a “Rebel flag” prohibition into the school regulations. Pursuant thereto the principal confronted a student who had worn a Confederate belt buckle almost every day for three years. When he refused to abandon the buckle, she placed him in detention for violating the ban. Evidence indicated that there had previously been no racial strife in the school. The court found that the fact that the new principal’s former school had had racial problems was not relevant to the present situation. Applying the Tinker criteria, the court ruled that one could not reasonably forecast that the wearing such insignia would cause material and substantial disruption in the school. The court noted that about 75 percent of the students in the school had worn flag paraphernalia and no disruption had resulted. According to the court, the Confederate flag itself is not “patently offensive” and it can only be banned if it causes or elicits school disruption. Remote apprehension of disruption is not sufficient to uphold such a ban. Bragg v. Swanson, 371 F. Supp. 2d 814 (W.D. W.VA. 2005). 4. See also: West v. Derby Unified School District No. 260, 206 F.3d 1358 (2000), where the U.S. Court of Appeals, Tenth Circuit, upheld a three-day suspension of a seventh-grade student who drew a picture of the Confederate flag in violation of a school policy. The school policy prohibited employees or students from having “in their possession any written material, either printed or in their own handwriting, publications or any item that denotes Klu Klux Klan, Aryan Nation, White Supremacy, Black Power, Confederate flags or articles, Neo-Nazi or any other ‘hate’ group.” This policy had been enacted by the school district after a series of earlier racial incidents, some related to the Confederate flag. The history of racial tension in the district was sufficient for school officials to have more than an undifferentiated apprehension or discomfort regarding the possibility of racial conflict and, in
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fact, the history of racial problems supported a “reasonable forecast of disruption,” per Tinker criteria. West v. Derby Unified School District, No. 260, 206 F.3d 1358 (2000).
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Threats of Violence
True threats and fighting words are unprotected speech. School officials must be able, if possible, to discern permissible constitutionally protected speech and expression from real and imminent danger. The Virginia Tech and Columbine massacres are only two of the several recent examples of the murder and mayhem that can occur on college and school campuses when demented individuals are not identified and restrained. School officials have the unenviable task of weighing evidence and balancing the rights of individuals against potential harm. The general rule as set forth in Tinker requires that the school official anticipate, foresee, and reasonably “forecast material and substantial disruption” from the information at hand. However, the First Amendment rights of speech and expression were never intended to embrace all circumstances. Restrictions on the content of speech are permitted in certain circumstances. If the social interest, order, and moral code of the society are jeopardized by certain kinds of speech, then speech can be controlled. Corpus Juris Secundum states, thusly: . . . no constitutional problem arises from the prevention and punishment of certain well-defined and narrowly limited classes of speech, including defamation, incitement to a breach of the peace on imminent lawless action, threats, obscenity, pornography produced with real children, and words by their very utterance inflict injury or tend to incite an immediate breach of the peace.55
FIGHTING WORDS OR HATE SPEECH Encompassed with this general rule is speech that conveys “true threats” of violence, racial epithets, or “fighting words.” Speech that incites danger and harm to individuals or disruption to the school are subject to restraint.56 Profanity is not excluded from free speech expression unless its context amounts to fighting words. The fighting words doctrine was recognized and validated in the 1942 U.S. Supreme Court decision, Chaplinsky v. New Hampshire, where a state statute was
upheld that banned “face-to-face words plainly likely to cause a breach of the peace by the addressee.” Justice Murphy in dictum explained that “ ‘fighting words’—those which by their very utterance inflict injury or tend to incite an immediate breach of peace”—are not constitutionally protected because their minimal social value as an expression of truth is “clearly outweighed by the social interest in order and morality.”57 Therefore, the good conduct of the school may require that school officials restrain any expression of speech that could be construed as “fighting words,” and racial epithets may well fall into this category of legitimate prior restraint.58 The Tinker standard amply covers such situations.
TRUE THREATS True threats are, however, of a slightly different genre than fighting words or racial epithets. Fighting words and racial epithets elicit from the addressee a response that can disrupt society, generally, or the school specifically. True threats, on the other hand, may not elicit a response that causes the disruption; rather the speaker may directly promise harm. A true threat is not protected speech. In the case of a threat that may be harmful to the conduct of a school, the recipient, not necessarily the addressee, will normally be a teacher, school principal, or other school employee. Courts will determine whether loose words or writings constitute a true threat, as indicated in Doe v. Pulaski County Special School District, by applying a nonexhaustive five-part test. The reasonable recipient (school official) must evaluate the purported threat by determining: “(1) the reaction of those who heard the alleged threat; (2) whether the threat was conditional; (3) whether the person who made the alleged threat communicated it directly to the object of the threat; (4) whether the speaker had a history of making threats against the person purportedly threatened; and (5) whether the recipient had a reason to believe that the speaker had a propensity to engage in violence.”59 The forum analysis for determining the context of free speech is normally not useful for legal analysis in cases of threats of physical violence. Threats of physical violence in any forum are not protected by the First Amendment. True threats are clearly outside the First Amendment protection.60
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Threats of Violence
Where an angry high school student told a high school guidance counselor “if you don’t give me this schedule change, I’m going to shoot you,” the court ruled that such speech was not protected.61 In viewing the evidence in context, the court decided that a “reasonable person in the guidance counselor’s position,” would have concluded that the speech conveyed a serious expression of intent to harm or assault the recipient.62 In a case styled LaVine v. Blaine, where a student wrote a poem about death, suicide, the shooting of 28 people, and how it all cleansed his soul, the court held that the poem constituted a threat to the safety of students and emergency expulsion was justified. The court pointed out that “schools must be safe,” 63 and “given the knowledge the shootings at Columbine, Thurston and Santee High School, among others, have imparted about the potential for school violence, . . . we must take care when evaluating a student’s First Amendment right of free expression against school officials’ need to provide a safe school environment. . . .” Acknowledging that creative writing and poetry are a part of the education fabric, this court nevertheless concluded that the poem and the evidence that the student was a loner, had stalked a girl, and was insubordinate on occasion at school all combined as a basis for a reasonable person to conclude that the poem was a threat that could have forecast suicide or harm to the safety of other students.64 The court noted that the poem could be reasonably interpreted as a “warning sign.”65 This LaVine court concluded and summarized by providing its standard for review of student speech cases citing Chandler v. McMinnville School District. In Chandler,66 the court discerned “three distinct areas of student speech,” each governed by a separate U.S. Supreme Court precedent: (1) vulgar, lewd, obscene, and plainly offensive speech governed by Bethel v. Fraser; (2) school-sponsored speech governed by Kuhlmeier; and (3) speech that falls into neither of these categories governed by Tinker. In “threat of violence” cases, the facts will normally lead to a judicial standard review using Tinker as the linchpin. Fraser may be relevant; however, most cases will probably require a showing also of the Tinker reasonable forecast of substantial disruption. Harm to one’s self (suicide) or physical harm to others is ipso facto
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disruption. In applying Tinker, the LaVine court looked to the totality of the relevant facts to conclude that the “emergency expulsion” of the student was reasonable. Therefore, the standard of judicial review required to determine a “true threat” is found in Tinker and its progeny.
Letter Written by Student Describing How He Would Rape and Murder a Classmate Constituted a “True Threat” of Violence Beyond Protection of First Amendment
Doe v. Pulaski County Special School District United States Court of Appeals, Eighth Circuit, 2002. 306 F.3d 616.
HANSEN, Circuit Judge. We granted en banc review to determine whether a school board ran afoul of a student’s free speech rights when it expelled him for an offensive and vulgar letter that the student had prepared at home. The expelled student described in the letter how he would rape, sodomize, and murder a female classmate who had previously broken up with him. After a bench trial, the district court ordered the expelled student reinstated, concluding that the letter was not a “true threat” and that it therefore was protected speech under the First Amendment. A divided panel of our court affirmed the district court’s decision. We vacated the panel decision, ordered en banc rehearing, and now hold that the school board did not violate the student’s First Amendment rights when it expelled him. J.M., a male, and K.G., a female, began “going together” during their seventh-grade year at Northwood Junior High School. As one would expect from typical junior high students, the two primarily saw each other at school and church, and their relationship was marked by multiple breakups during the school year. Sometime during the summer vacation after the end of the seventhgrade year, K.G. “broke up” with J.M. for the final time because she was interested in another boy.
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Frustrated by the breakup and upset that K.G. would not go out with him again, J.M. drafted two violent, misogynic, and obscenity-laden rants expressing a desire to molest, rape, and murder K.G. According to J.M., he intended to write a rap song with lyrics similar in theme to the more vulgar and violent rap songs performed by controversial “rappers” such as Eminem, Juvenile, and Kid Rock, but found that his “song” fit no particular beat or rhythm. J.M. ultimately penned the documents as letters, signing them at their conclusion. J.M. prepared both letters at his home, where they remained until J.M.’s best friend, D.M., discovered one of them approximately a month before the youths were to begin their eighth-grade year at Northwood. D.M. found the letter in J.M.’s bedroom while he was searching for something on top of a dresser. Before D.M. had a chance to read the letter, J.M. snatched it from his hand. D.M. asked to read the letter, and J.M. handed it back to him and gave D.M. permission to read the letter. D.M. asked for a copy of the letter, but J.M. refused to give him one. . . . The testimony clearly established that J.M. voluntarily discussed the letter with K.G. during two or three telephone conversations and that J.M. admitted to K.G. in their final telephone conversation that he, not another boy, had written the letter. Concerned about the letter, K.G. enlisted D.M.’s help in obtaining it from J.M. About a week before the start of school, D.M. spent the night at J.M.’s house and took the letter from J.M.’s room on the following morning. D.M. did so without J.M.’s knowledge or permission. D.M. delivered the letter to K.G. on the second day back from summer vacation, and K.G. read it in gym class in the presence of some other students. One of those students went immediately to the school resource officer, Officer James Kesterson, and reported that threats had been made against K.G. Officer Kesterson accompanied the student back to the gym where he found K.G. frightened and crying. K.G. told Officer Kesterson that J.M. had threatened her and explained how she obtained the letter. Officer Kesterson conducted an investigation and informed school administrators about the situation. Bob Allison, the principal, conducted his own investigation and learned that D.M. had taken
the letter from J.M. and delivered it to K.G. at school. After the investigation, Principal Allison recommended that J.M. be expelled from Northwood for the remainder of his eighth-grade year. Allison based his recommendation on Rule 36 of the district’s Handbook for Student Conduct and Discipline, which prohibits students from making terrorizing threats against others. The rule requires that a violator be recommended for expulsion. . . . The school board voted at the conclusion of the hearing to expel J.M. from both Northwood and the alternative school for the remainder of his eighth-grade year, essentially adopting Principal Allison’s initial recommendation. Upset with the school board’s decision, J.M.’s mother filed this lawsuit on her son’s behalf. . . . The court concluded that the letter was not a true threat of violence, which may be punished without offending an individual’s First Amendment rights, because J.M. had prepared the letter at home and did not intend to deliver it to K.G. The district court’s judgment required the district to permanently reinstate J.M., to restore all rights and privileges he lost, and to remove from J.M.’s school records any reference to the expulsion. As a general matter, the First Amendment prohibits governmental actors from directing what persons may see, read, speak, or hear. Free speech protections do not extend, however, to certain categories or modes of expression, such as obscenity, defamation, and fighting words. The government is permitted to regulate speech that falls within these categories because the speech is “of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” . . . (quoting Chaplinsky v. New Hampshire). Of course the rule remains that the government’s proscription of speech within these categories may not, in general, be based on the content of the speech or the speaker ’s viewpoint. In Watts v. United States, . . . the Supreme Court recognized that threats of violence also fall within the realm of speech that the government can proscribe without offending the First Amendment. Although there may be some political or social value associated with threatening words in some circumstances, the government has an overriding interest in “protecting individuals from the fear
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Threats of Violence
of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur.” . . . Our task, therefore, is to determine “[w]hat is a threat . . . from what is constitutionally protected speech.” . . . The federal courts of appeals that have announced a test to parse true threats from protected speech essentially fall into two camps. All the courts to have reached the issue have consistently adopted an objective test that focuses on whether a reasonable person would interpret the purported threat as a serious expression of intent to cause a present or future harm. The views among the courts diverge, however, in determining from whose viewpoint the statement should be interpreted. Some ask whether a reasonable person standing in the shoes of the speaker would foresee that the recipient would perceive the statement as a threat, whereas others ask how a reasonable person standing in the recipient’s shoes would view the alleged threat. . . . Before we address whether a reasonable recipient would view the letter as a threat, we are faced with a threshold question of whether J.M. intended to communicate the purported threat. The district court’s conclusion that the letter was protected speech turned on its finding that J.M. never intended to deliver the letter to K.G.; in other words, that J.M. never intended to communicate the purported threat to K.G. In determining whether a statement amounts to an unprotected threat, there is no requirement that the speaker intended to carry out the threat, nor is there any requirement that the speaker was capable of carrying out the purported threat of violence. However, the speaker must have intentionally or knowingly communicated the statement in question to someone before he or she may be punished or disciplined for it. The requirement is satisfied if the speaker communicates the statement to the object of the purported threat or to a third party. . . . Requiring less than intent to communicate the purported threat would run afoul of the notion that an individual’s most protected right is to be free from governmental interference in the sanctity of his home and in the sanctity of his own personal thoughts. . . . After all, “[o]ur whole constitutional heritage rebels at the thought of giving government the power to control” the moral contents of our minds. It is only when a
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threatening idea or thought is communicated that the government’s interest in alleviating the fear of violence and disruption associated with a threat engages. We conclude here that J.M. intended to communicate the letter and is therefore accountable if a reasonable recipient would have viewed the letter as a threat. Although J.M. snatched the letter out of D.M.’s hands when D.M. first found it, J.M. handed the letter back to D.M. and permitted D.M. to read it. J.M.’s decision to let D.M. read the letter is even more problematic for J.M. given his testimony that he knew there was a good possibility that D.M. would tell K.G. about the letter because D.M. and K.G. were friends. . . . One can hardly say, based on J.M.’s willingness to let D.M. read the letter and his overt discussion of the letter and its contents with K.G. and K.G.’s best friend, that J.M. intended to keep the letter, and the message it contained, within his own lockbox of personal privacy. We turn next to the question of whether a reasonable recipient would have perceived the letter as a threat. There is no question that the contents of the letter itself expressed an intent to harm K.G., and we disagree entirely, but respectfully, with the district court’s assessment that the words contained in it were only “arguably” threatening. The letter exhibited J.M.’s pronounced, contemptuous and depraved hate for K.G. J.M. referred to or described K.G. as a “bitch,” “slut,” “ass,” and a “whore” over 80 times in only four pages. He used the f-word no fewer than ninety times and spoke frequently in the letter of his wish to sodomize, rape, and kill K.G. The most disturbing aspect of the letter, however, is J.M.’s warning in two passages, expressed in unconditional terms, that K.G. should not go to sleep because he would be lying under her bed waiting to kill her with a knife. Most, if not all, normal thirteen-year-old girls (and probably most reasonable adults) would be frightened by the message and tone of J.M.’s letter and would fear for their physical well-being if they received the same letter. . . . The fact that J.M. did not personally deliver the letter to K.G. did not dispel its threatening nature. Although J.M. did not personally hand the letter to K.G., J.M. titled the letter “F____ that bitch [K.G.],” and he wrote the letter as though he was speaking directly to her. As a consequence,
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the letter was extremely intimate and personal, and the violence described in it was directed unequivocally at K.G. . . . There is also no indication that J.M. ever attempted to alleviate K.G.’s concerns about the letter during the period between when he told her about the letter and when she received it at school. Prior to K.G. obtaining the letter, J.M. had discussed its contents with her in phone conversations, and he testified at trial that he knew K.G. might have taken the threat as being truthful. It readily appears that J.M. wanted K.G. to be scared as retribution for her treatment of him. In fact, K.G.’s best friend testified at trial that J.M. told her, before D.M. obtained the letter and delivered it, that J.M. wanted to hide under K.G.’s bed and kill her. J.M. told this to K.G.’s best friend knowing the friend would likely pass the message along to K.G. J.M. also shared the letter with D.M. suspecting that D.M. would pass the information it contained to K.G. J.M. ultimately apologized to K.G., but his apology came only after he was expelled by the school board and during the pendency of the district court proceeding. The crescendoing events that presaged K.G.’s receipt of the actual letter would not have given a reasonable person in K.G.’s shoes much solace that J.M. did not want or intend to harm her. Based on the tone of the letter, and the situation surrounding its communication, we are not surprised that those who read it interpreted it as a threat. . . . A girl present when K.G. first read the letter immediately went to Officer Kesterson because she thought someone needed to know about the letter and the threats contained therein. School officials conducted an investigation and ultimately instituted expulsion proceedings because they believed the letter amounted to a “terrorizing threat.” As for K.G., she broke down crying and was scared to leave the gym after she read the letter. She also slept with the lights on for the first couple of nights after the incident. The junior high principal who observed K.G. shortly after K.G. received the letter described K.G. as being extremely frightened. He explained that K.G. remained frightened enough of J.M. that she went home early when J.M. returned to school after the district court temporarily reinstated him. J.M.’s previous portrayal of himself as a tough guy with a propensity for aggression made his
threat more credible and contributed to K.G.’s reaction. Before the breakup, J.M. had told K.G., as well as K.G.’s best friend and D.M., that he was a member of the “Bloods” gang. K.G. also testified at trial that J.M. once shot a cat while she was speaking to him on the phone and that J.M.’s penchant for violence towards animals heightened her concern over the letter. The district court excluded the district’s evidence of J.M.’s violent propensities on the ground that the evidence was not considered by the school board. We conclude, however, that the evidence is relevant to an understanding of K.G.’s response to the threat and our determination of whether her response was a reasonable one. . . . Viewing the entire factual circumstances surrounding the letter, we conclude that a reasonable recipient would have perceived J.M.’s letter as a serious expression of intent to harm K.G. As such, the letter amounted to a true threat, and the school’s administrators and the school board did not violate J.M.’s First Amendment rights by initiating disciplinary action based on the letter’s threatening content. . . . We reverse the judgment of the district court and remand the case to the district court with instructions to dissolve the injunctive relief afforded J.M. and to dismiss J.M.’s First Amendment claim against the school district.
CASE NOTES 1. True Threats. A federal district court in Pennsylvania summarized “true threats” as “statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” To establish whether a “true threat” exists, the following must be considered: (1) the speaker’s intent, (2) how the intended victim reacted to the alleged threat, (3) whether the threat was communicated directly to its victim, (4) whether the threat was conditional, and (5) whether the victim had reason to believe that the maker of the threat had a propensity to engage in violence. The federal court in Latour applied these criteria to a situation where a student was expelled for composing four rap songs, a song that mentioned a middle school girl’s name, a first track of a CD titled, “Murder, He Wrote,” a battle rap song titled “Massacre,” and
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Threats of Violence
another rap song titled “Action Fast Ft. Grimey.” In review of the evidence, the court concluded that the songs “were written in the rap genre and that rap songs are ‘just rhymes’ and metaphors. According to the court, some rap songs contain violent language, it is only violent imagery, and no actual violence is ultimately intended,” and such does not constitute a true threat. Regarding the Tinker criteria, the court found that the disruptions or fear of disruptions were not substantial nor could there be attribution to the rap songs. Latour v. Riverside Beaver School District, 2005 WL 2106562 (W.D. Pa. 2005). 2. A long delay after a threat and the fact that an apparent threat is remote from the school may be critical to proof of a “true threat.” Where a student drew a sketch of his high school being soaked with gasoline with the inclusion of pictures of a missile launcher, helicopter and armed persons, a brick being thrown at the principal, as well as racial epithets and obscenities, but the picture was not taken to school until two years later by the artist’s brother, the U.S. Court of Appeals, Fifth Circuit, ruled against the school’s disciplining the student. The two-year delay and the fact that the evidence showed that the offending student’s brother had unwittingly brought the sketch to school indicated that there was no true threat. The court indicated that the line between on-campus and off-campus speech was sufficiently indistinct that the school principal was entitled to qualified immunity in making the decision to discipline the offending student. Porter v. Ascension Parish School Board, 393 F.3d 608 (5th Cir. 2004), cert. denied, 544 U.S. 1062, 125 S.Ct. 2530 (2005). 3. The heightened sensitivity of school officials and the courts to threats of violence at school is illustrated by a New Jersey case where a young student on the playground told friends “I’m going to shoot you.” The school considered it a true threat and suspended the student for five days. The student claimed that he was only playing cops and robbers with other students when the threat was made. The child’s parent sued, challenging the suspension. The federal circuit court observed that there had been three other incidents at the school involving threats; the school principal had visited
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each classroom to discuss and admonish students regarding such threats and had also sent a letter home to parents indicating a concern about threats. The court ruled prohibition of threats at school was a legitimate concern of the principal and that such student threats did not rise to the level of First Amendment speech protection. Attempts by the plaintiff to “ratchet up” playground speech to the level of political concern was not accepted by the court. S.G. as Guardian of A.G. v. Sayreville Board of Education, 333 F.3d 417 (3rd Cir. 2003), cert. denied, 540 U.S. 1104, 124 S.Ct. 1040 (2004). “The speaker of a true threat does not even need to have the intention of carrying out the threat.” Virginia v. Black, 538 U.S. 343, 123 S. Ct. 1536 (2003). The prohibition on true threats is meant to “protect individuals from fear of violence, the disruption the fear engenders, and the possibility that the threatened violence will occur.” R.A.V. v. St. Paul, 505 U.S. 377, 112 S. Ct. 2538 (1992). Where a 12-year-old student wrote a story, and read it to other students, about a boy who went on a killing spree, stabbing other named students and chopping off the head of a female student who was engaged in sexual intercourse, the court upheld the writer ’s 30-day suspension from school. In dismissing an array of complaints by the student, including a claim of violation of First, Fourth, and Fourteenth Amendment rights, due process rights, as well as a defamation action against school officials, the New York federal district court commented: “This Court should not be a haven for complaints by students and their parents against actions taken by school officials in their extremely difficult task of educating and controlling the irresponsible behavior of their students. As is often the case, as it is here, these types of conflicts are better handled within the educational system and not in the federal trial and appellate courts.” D.F. v. Board of Education of Syosset Central School District, 386 F. Supp. 2d 119 (2005), (EDNY 2005), order affirmed 180 Fed. Appx. 232 (2nd Cir NY 2006), cert den. 549 U.S. 1179, 127 S.Ct. 1176 (2007). Hate Crimes. In response to a rising number of incidents of intimidation of individuals
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who utter hate speech with the motivation of bias, several states have enacted laws making it a crime to intimidate. Such statutes make it unlawful to intimidate another for reason of race, color, national origin, or religion. Some state statutes also include ancestry, creed, age, disability, political affiliation, sex or gender, or sexual orientation. Proof beyond a reasonable doubt is required that the intimidation was intended because of these reasons. See Hate Crimes and Liability for Bias-Motivated Acts, 57 Am. Jur. Proof of Facts 3d 1 (2009).
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Forum Analysis Applied to Schools
The broad blanket procedures of the “clear and present danger” and “material and substantial disruption” tests were steps on the road to judicial refinement of the meaning of freedom of speech protections. In 1969, the same year as Tinker, the Supreme Court also handed down another freedom of speech decision, Brandenburg v. Ohio, 67 which set forth a new test to evaluate laws restricting freedom of speech the Brandenburg test says that “[the state may not] forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”68 To merely teach or talk about lawless action in the abstract is not the equivalent of leading a group of dissidents into an actual lawless action. A state law or agency rule concerning restraint of speech must be narrowly drawn so as to mark the difference between advocacy of a theory and the advocacy of actual action to disrupt the functioning of government. Later, in Hess v. Indiana, the Supreme Court further explained that “the constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”69 However, in both Brandenburg and Hess, the Supreme Court was dealing with factual situations wherein the exercise of freedom of speech was in public places, streets, or parks where rallies were held protesting government actions.
The Brandenburg and Hess tests were not necessarily applicable to the controlled environment of the public school. Free speech requirements that apply to public parks, sidewalks, or streets do not easily translate to the public school situation. The realization that there are different kinds of public forums where freedom of speech may be exercised led the Supreme Court to develop yet another test that can be readily applied to public schools. This test is called the “public forum” test or the “public forum analysis,” by which the Supreme Court defines the conditions under which government can restrain speech and expression. The “public forum analysis” was first utilized in Perry Education Association v. Perry Local Educators’ Association, 70 where the Court explained that there are degrees of freedom of speech dependent on the type of forum in which the speech was delivered.
TYPES OF FORUMS Traditional Public Forum: For the state to enforce a content-based denial of speech subjects, the exclusion to “strict judicial scrutiny,” whereby the state must show that the regulation is necessary to serve a “compelling state interest” (a very difficult burden of proof for a state institution to bear). The state can only reasonably regulate time, place, and manner. Limited or Designated Public Forum: Although the state is not required to create this type of forum, if it does and if it seeks to enforce a content-based exclusion of speech, then such regulation will be subject to “strict judicial scrutiny,” and the state must show, as with the traditional forum, that the regulation is necessary to serve a compelling state interest. As with the traditional forum, the state can only regulate time, place, and manner. Closed or Nonpublic Forum: With this type of forum the state cannot only enforce time, place, and manner restrictions, but it may regulate content and communication if the regulation is reasonable and is not simply an arbitrary effort to suppress speech or expression. The legal burden on the state is merely to show that its regulation is reasonable and rational, and it is not required to sustain the much more difficult burden of showing a compelling state interest in the exclusion.
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Forum Analysis Applied to Schools
Of the degrees and types of public forums, there are three major categories. The first category, traditional forums, are places, by long tradition or by government designation, such as streets or parks, that “have immemorially been held in trust for the use of the public, and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.”71 In these traditional public forums, the state can only restrict speech by narrowly drawn regulations that serve a compelling state interest. Such regulations must be content-neutral and can only determine the time, place, and manner of expression. The second category, a limited public forum, is public property that the government has opened for activities related to speech and expression. The government does not need to retain such an area or facility indefinitely and it can be closed to such future use. The regulation of this type of forum is subject to the same constitutional requirements as the traditional public forum, which are only reasonable regulation of time, place, and manner; the government cannot regulate the content of the speech.72 A good example of this kind of forum is described in Widmar v. Vincent 73 where a state university made its facilities available to registered student groups but objected to use of the forum for religious proselytizing. The Supreme Court ruled that once the university opened its facilities for use as a limited public forum, it could not then discriminate as to the content of what was said there. The third category, a reserved, closed, or nonpublic forum, is public property that has not been by tradition or designation a place for the exercise of speech and expression. For this kind of public space, the Supreme Court has said the “First Amendment does not guarantee access to property simply because it is owned or controlled by the government.”74 The state may limit or reserve this type of forum for a particular government purpose, and regulation of the speech and expression need only be reasonable and not calculated to suppress a particular viewpoint. The Supreme Court in Perry said: “The State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated.”75 Public schools fall into this third category as a reserved
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or limited forum unless the school district intentionally opens the school for public use and general discourse.76
CREATING A LIMITED OR DESIGNATED PUBLIC FORUM The government does not create a public forum for free speech purposes by inaction or by permitting limited discourse but by intentionally opening up a nontraditional forum for public discourse. 16A Am.Jur.2d Constitutional Law § 541.
To recapitulate, Perry tells us that the “public forum analysis” has enunciated three types of forums used to assess the appropriateness of school district controls on student speech, expression, and press and has described the restrictions that can be imposed under each. Traditional public forums, such as sidewalks or parks, have been used as assembly places for communicating ideas among citizens and for discussing public issues. In traditional forums, speech may be prohibited or limited only if there is a compelling state interest. The second type, limited public forums, are created when entities such as school districts open their properties or facilities for public use. A school is generally assumed not to be a limited public forum unless school officials purposely open the school for public use. A limited forum will not be found to exist in a public school unless (1) there is a governmental interest in creating such a forum, or (2) outsiders seek access to the school and there is evidence that wide access has been granted before. The school is not required to create this type of forum, but once created, it is subject to the same regulations as a traditional public forum, and any restraint on speech must pass a strict scrutiny analysis. The third type, nonpublic or closed forum, exists where schools do not open their properties and facilities for indiscriminate public use. “Control over access to a nonpublic forum can be based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral.”77 If a school is a nonpublic forum, it may regulate the time, place, and manner of the speech and expression, but even with this
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type of forum, the school must apply a contentneutral standard for any speech and expression that is permitted there.
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Time, Place, and Manner
When a school, or a part of a school, is determined to be a limited or a designated forum, the school still retains the prerogative of regulating the “time, place, and manner,” that speech will be permitted.78 Obviously, a school is not required to allow any person or groups of persons the discretion of choosing any time or location in the school to exercise their speech rights. Moreover, the manner in which the speech is conveyed is also subject to regulation. Such regulations, however, must be fashioned so that they are (1) content-neutral, (2) narrowly tailored to serve a “significant government interest,” and (3) provide room for open and ample alternative channels of communication.79 Concerning content, any regulation by a school that regulates content must meet the stringent constitutional test of strict scrutiny. This means that the regulation will be strictly examined by the courts, and the regulation will be held unconstitutional unless the school can show that the regulation “is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.”80 It will not suffice for the school to show that the regulation is merely reasonable, rational, or not irrational. Expressive activity cannot be prohibited simply because administrators seek to “avoid discomfort and unpleasantness that always accompany an unpopular viewpoint.”81 In Grayned v. City of Rockford, the Supreme Court explained what it means by regulation of time, place, and manner. In Grayned, the Supreme Court explained, “The nature of a place, ‘the pattern of its normal activities’ dictates the kinds of regulations of time, place and manner that are reasonable.” The use must be reasonable, as well as the regulation. The standard of reasonableness will prevail. According to the Court: “The crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time.” Although loud mufflers on cars or boom boxes that rattle the windows of classrooms and libraries can be prohibited82 as “nonspeech” by
well-crafted regulations, peaceful picketing cannot be stifled without offending the Constitution.83 Regulations cannot be vague and overly broad so as to render to school administrators latitude to make arbitrary or capricious determinations as to when and what expression will be permitted.84 Such regulations must be narrowly tailored to prevent uncertain meanings and understandings as to those expressions that are or are not prohibited.85
School That Creates a Limited Public Forum Cannot Deny Access to Religious Group
Lamb’s Chapel v. Center Moriches Union Free School District Supreme Court of the United States, 1993. 508 U.S. 384, 1135 S. Ct. 2141.
Justice WHITE delivered the opinion of the Court. Pursuant to § 414’s empowerment of local school districts, the Board of Center Moriches Union Free School District (District) has issued rules and regulations with respect to the use of school property when not in use for school purposes. The rules allow only 2 of the 10 purposes authorized by § 414: social, civic, or recreational uses (Rule 10) and use by political organizations if secured in compliance with § 414 (Rule 8). Rule 7, however, consistent with the judicial interpretation of state law, provides that “[t]he school premises shall not be used by any group for religious purposes.” . . . The issue in this case is whether, against this background of state law, it violates the Free Speech Clause of the First Amendment, made applicable to the States by the Fourteenth Amendment, to deny a church access to school premises to exhibit for public viewing and for assertedly religious purposes, a film series dealing with family and child-rearing issues faced by parents today. Petitioners (Church) are Lamb’s Chapel, an evangelical church in the community of Center
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Time, Place, and Manner
Moriches, and its pastor John Steigerwald. Twice the Church applied to the District for permission to use school facilities to show a six-part film series containing lectures by Doctor James Dobson. . . . [T]he film series would discuss Dr. Dobson’s views on the undermining influences of the media that could only be counterbalanced by returning to traditional, Christian family values instilled at an early stage. The brochure went on to describe the contents of each of the six parts of the series. The District denied the first application, saying that “[t]his film does appear to be church related and therefore your request must be refused.” . . . The second application for permission to use school premises for showing the film series, which described it as a “Familyoriented movie—from a Christian perspective,” was denied using identical language. . . . The Church brought suit in the District Court, challenging the denial as a violation of the Freedom of Speech and Assembly Clauses, the Free Exercise Clause, and the Establishment Clause of the First Amendment, as well as the Equal Protection Clause of the Fourteenth Amendment. . . . With respect to the free-speech claim under the First Amendment, the District Court characterized the District’s facilities as a “limited public forum.” The court noted that the enumerated purposes for which § 414 allowed access to school facilities did not include religious worship or instruction, that Rule 7 explicitly proscribes using school facilities for religious purposes, and that the Church had conceded that its showing of the film series would be for religious purposes. . . . The District Court stated that once a limited public forum is opened to a particular type of speech, selectively denying access to other activities of the same genre is forbidden. Noting that the District had not opened its facilities to organizations similar to Lamb’s Chapel for religious purposes, the District Court held that the denial in this case was viewpoint neutral and, hence, not a violation of the Freedom of Speech Clause. . . . The Court of Appeals affirmed the judgment of the District Court “in all respects.” . . . It held that the school property, when not in use for school purposes, was neither a traditional nor a designated public forum; rather, it was a limited public forum open only for designated purposes, a classification that “allows it to remain
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non-public except as to specified uses.” The court observed that exclusions in such a forum need only be reasonable and viewpoint neutral, and ruled that denying access to the Church for the purpose of showing its film did not violate this standard. . . . There is no question that the District, like the private owner of property, may legally preserve the property under its control for the use to which it is dedicated. . . . It is also common ground that the District need not have permitted after-hours use of its property for any of the uses permitted by N.Y. Educ. Law § 414. The District, however, did open its property for 2 of the 10 uses permitted by § 414. The Church argued below that because under Rule 10 of the rules issued by the District, school property could be used for “social, civic, and recreational” purposes, the District had opened its property for such a wide variety of communicative purposes that restrictions on communicative uses of the property were subject to the same constitutional limitations as restrictions in traditional public forums such as parks and sidewalks. Hence, its view was that subject matter or speaker exclusions on District property were required to be justified by a compelling state interest and to be narrowly drawn to achieve that end. . . . Both the District Court and the Court of Appeals rejected this submission, which is also presented to this Court. The argument has considerable force, for the District’s property is heavily used by a wide variety of private organizations, including some that presented a “close question,” which the Court of Appeals resolved in the District’s favor, as to whether the District had in fact already opened its property for religious uses. We need not rule on this issue, however, for even if the courts below were correct in this respect—and we shall assume for present purposes that they were—the judgment below must be reversed. With respect to public property that is not a designated public forum open for indiscriminate public use for communicative purposes, we have said that “[c]ontrol over access to a nonpublic forum can be based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral.” . . . The Court of Appeals appeared to recognize that the total ban on using District property for
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religious purposes could survive First Amendment challenge only if excluding this category of speech was reasonable and viewpoint neutral. The court’s conclusion in this case was that Rule 7 met this test. We cannot agree with this holding, for Rule 7 was unconstitutionally applied in this case. . . . The Court of Appeals thought that the application of Rule 7 in this case was viewpoint neutral because it had been, and would be, applied in the same way to all uses of school property for religious purposes. That all religions and all uses for religious purposes are treated alike under Rule 7, however, does not answer the critical question whether it discriminates on the basis of viewpoint to permit school property to be used for the presentation of all views about family issues and child rearing except those dealing with the subject matter from a religious standpoint. There is no suggestion from the courts below or from the District or the State that a lecture or film about child rearing and family values would not be a use for social or civic purposes otherwise permitted by Rule 10. That subject matter is not one that the District has placed off limits to any and all speakers. Nor is there any indication in the record before us that the application to exhibit the particular film series involved here was, or would have been, denied for any reason other than the fact that the presentation would have been from a religious perspective. In our view, denial on that basis was plainly invalid under our holding in Cornelius, supra. 473 U.S., at 806, 105 S. Ct. at 3451, that “[a]lthough a speaker may be excluded from a non-public forum if he wishes to address a topic not encompassed within the purpose of the forum . . . or if he is not a member of the class of speakers for whose especial benefit the forum was created . . . , the government violates the First Amendment when it denies access to a speaker solely to suppress the point of view he espouses on an otherwise includible subject.” The film series involved here no doubt dealt with a subject otherwise permissible under Rule 10, and its exhibition was denied solely because the series dealt with the subject from a religious standpoint. The principle that has emerged from our cases “is that the First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the
expense of others.” . . . That principle applies in the circumstances of this case. . . . The District, as a respondent, would save its judgment below on the ground that to permit its property to be used for religious purposes would be an establishment of religion forbidden by the First Amendment. This Court suggested in Widmar v. Vincent . . . that the interest of the State in avoiding an Establishment Clause violation “may be [a] compelling” one justifying an abridgment of free speech otherwise protected by the First Amendment; but the Court went on to hold that permitting use of university property for religious purposes under the open access policy involved there would not be incompatible with the Court’s Establishment Clause cases. We have no more trouble than did the Widmar Court in disposing of the claimed defense on the ground that the posited fears of an Establishment Clause violation are unfounded. The showing of this film series would not have been during school hours, would not have been sponsored by the school, and would have been open to the public, not just to church members. The District property had repeatedly been used by a wide variety of private organizations. Under these circumstances, as in Widmar, there would have been no realistic danger that the community would think that the District was endorsing religion or any particular creed, and any benefit to religion or to the Church would have been no more than incidental. As in Widmar . . . , permitting District property to be used to exhibit the film series involved in this case would not have been an establishment of religion under the three-part test articulated in Lemon v. Kurtzman . . . : The challenged governmental action has a secular purpose, does not have the principal or primary effect of advancing or inhibiting religion, and does not foster an excessive entanglement with religion. For the reasons stated in this opinion, the judgment of the Court of Appeals is Reversed.
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Student Publications and Kuhlmeier
Freedom of the press is a cornerstone of the basic freedoms of the Constitution. In settling the Pentagon papers dispute between the New York Times and the U.S. government, the Supreme Court said:
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Student Publications and Kuhlmeier In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government.86
That a free press is essential to the proper functioning of a democratic government was well established among the framers of the U.S. Constitution. Blackstone, the great English jurist, reflected these sentiments when he observed that “[t]he liberty of the press is indeed essential to the nature of a free state.”87 By the time the First Amendment was written by Madison, “[f]reedom of the press had become part . . . of government and the protection of civil liberties.”88 The press, though, does have some limitations that have been debated over the years. It was maintained by Alexander Hamilton in 1804 that freedom of the press “consists of the right to publish, with impunity, truth, with good motives, for justifiable ends, though reflecting on government, magistracy, or individuals.”89 The expectation that the press would endeavor to be truthful, publish with proper motivation, without malice, and for appropriate ends is a standard that the press has had difficulty maintaining. Because what constitutes proper motives, appropriate ends, and truth rests largely in the eye of the beholder, much litigation has ensued in defining the role that the press will play in society. Truth and proper motives, especially in the discussion of politics, have always been a nebulous and largely unenforceable standard. That the freedom of the press is to be defended on the basis of truth is thus an unsatisfactory condition. Thompson observed early that to maintain truth as a defense is like asking a jury to decide which is “the most palatable food, agreeable drink, or beautiful color.”90 In spite of the problems with proving truth in defense of publication, this standard prevailed in 1964, when the U.S. Supreme Court in New York Times v. Sullivan held that public persons could not succeed in a libel action against the press by compelling the defense to show truth and good motives.91 Today, an action for the publication of falsehoods can be maintained by private persons against the press, but public persons must prove that the newspaper
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published with malicious intent, a very difficult burden to sustain. The courts have always been particularly suspicious of prior restraint; that is, when a publication is censored before it can reach the street. The historical view has been that the freedom of thought and enquiry should be subject not to previous restraints, but only to subsequent redress through civil or criminal action after publication. McKean, in 1797, observed that “[e]very free man has an undoubted right to lay what sentiments he pleases before the public . . . but take the consequences.”92 The issue of prior restraint versus retrospective redress has been largely obviated by the Supreme Court decision in the Pentagon papers case.93 Today, there is no question that government cannot exercise prior restraint, except possibly in the most extreme circumstance when the governmental interest is so absolutely compelling that there is little doubt that the health and safety of the people will be harmed. Freedom of the press in the public schools, however, is governed by a different set of constitutional precedents. Regulation of student newspapers is subject to the Supreme Court decision in Hazelwood School District v. Kuhlmeier, 94 in which the Court distinguished government censorship of publications outside school from that of student newspapers. Here the Court ruled that prior restraint was permissible because the student newspaper was not a “public forum” and the restraint was reasonably related to a valid educational purpose. The Court found that the “material and substantial disruption” standard of Tinker did not apply because in Kuhlmeier, the student newspaper was school sponsored, whereas in Tinker, free expression was exhibited by armbands that were not school sponsored, but instead were individual political expression. The Court said, “[W]e conclude that the standard articulated in Tinker for determining when a school may punish student expression need not also be the standard for determining when a school may refuse to lend its name and resources to the dissemination of student expression.”95 The Court thus removed the Tinker burden of proof from school officials with regard to regulation of student newspapers. In spite of Kuhlmeier, however, school officials do not have an entirely free hand in censorship of
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student newspapers. School officials are not permitted to exercise powers of censorship merely as a matter of taste or fancy.96 Rather, school determinations should be based on a school rule that advances an educational purpose and is uniformly enforced.97 Without such rules, coupled with proper enforcement, substantive due process rights may be implicated.98 The Supreme Court has identified two “evils” of prior restraint provisions that must be avoided by school policies and practices. “First, a regulation that places ‘unbridled discretion’ in the hands of a government official constitutes a prior restraint and may result in censorship.”99 The courts have said that school officials must have valid reasons for rejecting an article, such as one that has potential for disruption or is obscene. Such evaluations by school officials must be content-neutral. A second evil that schools must avoid is to collect and hold materials indefinitely, thereby frustrating publication with an official nonresponse. With regard to this second evil, school policy must provide for reasonable time limits within which the school official must make a decision as to whether the proposed publication is allowable. Prior review must be done in an expeditious manner; to permit otherwise would allow the official to simply ice the process and hold the material indefinitely. Normally, prior restraint is not per se unconstitutional, yet at least one court has held prior restraint to be per se unconstitutional.100 Other courts have found prior restraint to be constitutional only if accompanied by specific standards and procedural safeguards, such as expedited review and due process.101 Therefore, although it is essential to our democracy that government not have the authority to censor the press, school districts are viewed differently and are given particularized leeway to exercise limited controls over student publications. The school district’s authority derives from the historical special legal relationships between schools and students. The Supreme Court in Fraser explained that the relationships between students and public schools must be viewed differently than those between private press and government generally. “[T]he First Amendment rights of students in the public schools are not automatically coextensive with the rights of adults in other settings and must be applied in light of the special characteristics of the school environment.”102
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Forum Analysis and Student Newspapers
Tinker makes it quite clear that students have a constitutional right of freedom of political expression, speech, and press that cannot be encroached upon by the school unless the exercise of this right “materially and substantially” disrupts the school or is such that there can be a “reasonable forecast of material and substantial disruption.” This Tinker test for the protection of speech and expression has, however, been more clearly circumscribed by subsequent Supreme Court decisions. Most recently, the courts have tended to dissect the speech and expression issue by determining the type of forum in which the speech and expression are exercised. The result has been a tendency for courts to increasingly bypass the Tinker “material and substantial disruption” test in favor of the forum analysis of free speech. With Fraser, the rights enunciated in Tinker were substantially clarified103 and with Lamb’s Chapel, a clear example of the forum analysis is illustrated. In 1988, the Supreme Court further clarified the rights of student expression in Hazelwood v. Kuhlmeier 104 and applied the distinctions in the types of forums. The essential question in Kuhlmeier became then, according to the Supreme Court, what was “the forum for the public expression”? The Court ruled that educators do not offend student expression by exercising editorial control over school-sponsored newspapers as long as the educators or school board has a legitimate pedagogical reason to prohibit such expression. Should a school have educational concerns about curricular activities involving student expression, it need not lend its name or resources to these activities. Thus, freedom of expression in school newspapers is not today controlled by the Tinker standard of “material and substantial disruption.”
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Categories of Publications
In addition to the forum considerations, the courts will usually determine the permissible limits of restraint based on the type of publication affected. Litigation concerning student
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Categories of Publications
publications has fallen into four categories: (1) school-sponsored newspapers; (2) non-school newspapers written and distributed by students; (3) materials distributed by students at school but written and published by nonstudents; and (4) the Internet.
SCHOOL-SPONSORED PUBLICATIONS The Supreme Court in Hazelwood v. Kuhlmeier105 found that school-sponsored publications require a different test for prior restraint than non-school publications. The Kuhlmeier decision permitted the school administration to control or censor a school-sponsored paper. Non-school publications may be regulated only by time, place, and manner of distribution; they cannot be regulated as to content. The time, place, and manner restrictions of student publications are contingent upon the school having created a limited public forum as opposed to a nonpublic or closed forum. In Kuhlmeier, plaintiffs challenged a high school principal’s deletion of two articles written by students on the subjects of student pregnancy and divorce. The principal refused to allow the articles to be printed in the high school newspaper. The Court said the high school newspaper published by the journalism students could not be characterized as a “public forum”; therefore, school officials retained the right to exercise reasonable restraint upon what went into the newspaper. School newspapers, theatrical productions, and other expressions that are perceived to “bear the imprimatur” of the school are all considered nonpublic forums.106
NON-SCHOOL PUBLICATIONS Kuhlmeier distinguished those publications that are not officially school connected and those that are school sponsored. If a school permits nonschool materials to be distributed, then a limited public forum has been created. When such a forum has been established, the restrictions developed by school officials must be content-neutral. The school may place appropriate time, place, and manner restrictions on access to school grounds, but it cannot control the content, as is permitted with school-sponsored publications. A case in point is Burch v. Barker,107 wherein students distributed a student-written fourpage newspaper entitled Bad Astra. The paper
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was critical of the school administration but included no profanity, obscenity, or defamatory statements. School policy required that all nonschool publications be submitted to the principal for prior approval. Since this was not a schoolsponsored publication, Kuhlmeier did not apply; therefore, the paper was “not within the purview of the school’s exercise of reasonable editorial control.”108 Using Tinker as precedent, the court ruled that the prior approval aspect of the policy violated the Constitution by suppressing speech. The court said: “[S]uppressing speech before it is uttered, as opposed to punishment of individuals after expression has occurred, is prior restraint, which generally comes before a court bearing a ‘heavy assumption’ of unconstitutionality.”109 However, time, place, and manner of distribution applies to distribution of all distributed materials. In a 2008 case the U.S. Court of Appeals, Sixth Circuit, held school hallways are nonpublic forums. A school district is entitled to put time, place, and manner restrictions on hallway speech so long as the restrictions are viewpoint neutral. A school policy that limits distribution of materials to bulletins boards in hallways and the cafeteria during the lunch period is a reasonable restriction. A school policy that requires students to submit materials, leaflets, etc., to the school administration prior to distribution is not per se prohibited by the Constitution. M.A.L. ex rel. M.L. v. Kinsland, 543 F.3d 841 (6th Cir. 2008).
RELIGIOUS PUBLICATIONS A number of recent cases have concerned the distribution of religious material on school campuses. In these cases, the students have attempted to distribute religious newsletters written by nonstudents. One court has ruled students may not distribute the Gideon Bible in school,110 but other court decisions have not been uniform when it comes to distributing other religious materials, such as newsletters. These cases have juxtaposed free speech protections and Establishment Clause restrictions, with some uncertainty as to the prevailing precedent. Some of the cases have been decided on the basis of the previously discussed limited public forum question. In these cases, the schools have been found to be closed forums. According to Kuhlmeier, if school officials have opened the
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school to “indiscriminate use,” then the school becomes a public forum, and a “limited public forum” may be created.111 If this is the situation, then the denial of the right to distribute religious materials may be unconstitutional.112 School officials may exercise editorial control over school-sponsored publications if they have a legitimate pedagogical reason. As observed above, however, if there are non-school publications and the school has created a “limited public forum,” then the school officials may control only the time, place, and manner of distribution, but not content. If a school policy requires that students submit materials before distribution, then due process procedures must be in place, or the policy may be vulnerable to a prior restraint challenge.
School Officials May Regulate the Content of School-Sponsored Newspapers
Hazelwood School District v. Kuhlmeier Supreme Court of the United States, 1988. 484 U.S. 260, 108 S. Ct. 562.
Justice WHITE delivered the opinion of the Court. This case concerns the extent to which educators may exercise editorial control over the contents of a high school newspaper produced as part of the school’s journalism curriculum. Petitioners are the Hazelwood School District in St. Louis County, Missouri, [and] various school officials. . . . Respondents are three former Hazelwood East students who were staff members of Spectrum, the school newspaper. They contend that school officials violated their First Amendment rights by deleting two pages of articles from the May 13, 1983, issue of Spectrum. Spectrum was written and edited by the Journalism II class at Hazelwood East. The newspaper was published every three weeks or so during the 1982–1983 school year. More than 4,500 copies of the newspaper were distributed during that year to students, school personnel, and members of the community.
The Board of Education allocated funds from its annual budget for the printing of Spectrum. These funds were supplemented by proceeds from sales of the newspaper. . . . The Journalism II course was taught by Robert Stergos for most of the 1982–1983 academic year. Stergos left Hazelwood East to take a job in private industry on April 29, 1983, when the May 13 edition of Spectrum was nearing completion, and petitioner Emerson took his place as newspaper adviser for the remaining weeks of the term. The practice at Hazelwood East during the spring 1983 semester was for the journalism teacher to submit page proofs of each Spectrum issue to Principal Reynolds for his review prior to publication. On May 10, Emerson delivered the proofs of the May 13 edition to Reynolds, who objected to two of the articles scheduled to appear in that edition. One of the stories described three Hazelwood East students’ experiences with pregnancy; the other discussed the impact of divorce on students at the school. Reynolds was concerned that, although the pregnancy story used false names “to keep the identity of these girls a secret,” the pregnant students still might be identifiable from the text. He also believed that the article’s references to sexual activity and birth control were inappropriate for some of the younger students at the school. In addition, Reynolds was concerned that a student identified by name in the divorce story had complained that her father “wasn’t spending enough time with my mom, my sister and I” prior to the divorce, “was always out of town on business or out late playing cards with the guys,” and “always argued about everything” with her mother. . . . Reynolds believed that the student’s parents should have been given an opportunity to respond to these remarks or to consent to their publication. He was unaware that Emerson had deleted the student’s name from the final version of the article. Reynolds believed that there was no time to make the necessary changes in the stories before the scheduled press run and that the newspaper would not appear before the end of the school year if printing were delayed to any significant extent. He concluded that his only options under the circumstances were to publish a fourpage newspaper instead of the planned six-page newspaper, eliminating the two pages on which
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Categories of Publications
the offending stories appeared, or to publish no newspaper at all. Accordingly, he directed Emerson to withhold from publication the two pages containing the stories on pregnancy and divorce. He informed his superiors of the decision, and they concurred. Respondents subsequently commenced this action in the United States District Court. . . . Students in the public schools do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” . . . They cannot be punished merely for expressing their personal views on the school premises—whether “in the cafeteria, or on the playing field, or on the campus during the authorized hours,” . . . unless school authorities have reason to believe that such expression will “substantially interfere with the work of the school or impinge upon the rights of other students.” We have nonetheless recognized that the First Amendment rights of students in the public schools “are not automatically coextensive with the rights of adults in other settings,” Bethel School District No. 403 v. Fraser, (1986), and must be “applied in light of the special characteristics of the school environment.” . . . A school need not tolerate student speech that is inconsistent with its “basic educational mission,” . . . even though the government could not censor similar speech outside the school. Accordingly, we held in Fraser that a student could be disciplined for having delivered a speech that was “sexually explicit” but not legally obscene at an official school assembly, because the school was entitled to “disassociate itself” from the speech in a manner that would demonstrate to others that such vulgarity is “wholly inconsistent with the ‘fundamental values’ of public school education.” We thus recognized that “[t]he determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the school board,” . . . rather than with the federal courts. It is in this context that respondents’ First Amendment claims must be considered. We deal first with the question whether Spectrum may appropriately be characterized as a forum for public expression. The public schools do not possess all of the attributes of streets, parks, and other traditional public forums that “time out of mind, have been used for purposes of assembly,
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communicating thoughts between citizens, and discussing public questions.” . . . Hence, school facilities may be deemed to be public forums only if school authorities have “by policy or by practice” opened those facilities “for indiscriminate use by the general public,” . . . or by some segment of the public, such as student organizations. . . . If the facilities have instead been reserved for other intended purposes, “communicative or otherwise,” then no public forum has been created, and school officials may impose reasonable restrictions on the speech of students, teachers, and other members of the school community. “The government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional forum for public discourse.” . . . The policy of school officials toward Spectrum was reflected in Hazelwood School Board Policy 348.51 and the Hazelwood East Curriculum Guide. Board Policy 348.51 provided that “[s]chool-sponsored publications are developed within the adopted curriculum and its educational implications in regular classroom activities.” . . . The Hazelwood East Curriculum Guide described the Journalism II course as a “laboratory situation in which the students publish the school newspaper applying skills they have learned in Journalism I.” The lessons that were to be learned from the Journalism II course, according to the Curriculum Guide, included development of journalistic skills under deadline pressure, “the legal, moral, and ethical restrictions imposed upon journalists within the school community,” and “responsibility and acceptance of criticism for articles of opinion.” Journalism II was taught by a faculty member during regular class hours. Students received grades and academic credit for their performance in the course. School officials did not deviate in practice from their policy that production of Spectrum was to be part of the educational curriculum and a “regular classroom activit[y].” The District Court found that Robert Stergos, the journalism teacher during most of the 1982–1983 school year, “both had the authority to exercise and in fact exercised a great deal of control over Spectrum.” . . . For example, Stergos selected the editors of the newspaper, scheduled publication dates, decided the number of pages for each issue, assigned story ideas to class members,
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advised students on the development of their stories, reviewed the use of quotations, edited stories, selected and edited the letters to the editor, and dealt with the printing company. Many of these decisions were made without consultation with the Journalism II students. The District Court thus found it “clear that Mr. Stergos was the final authority with respect to almost every aspect of the production and publication of Spectrum, including its content.” Moreover, after each Spectrum issue had been finally approved by Stergos or his successor, the issue still had to be reviewed by Principal Reynolds prior to publication. Respondents’ assertion that they had believed that they could publish “practically anything” in Spectrum was therefore dismissed by the District Court as simply “not credible.” These factual findings are amply supported by the record, and were not rejected as clearly erroneous by the Court of Appeals. . . . School officials did not evince either “by policy or by practice” . . . any intent to open the pages of Spectrum to “indiscriminate use,” by its student reporters and editors, or by the student body generally. Instead, they “reserve[d] the forum for its intended purpos[e],” . . . as a supervised learning experience for journalism students. Accordingly, school officials were entitled to regulate the contents of Spectrum in any reasonable manner. It is this standard, rather than our decision in Tinker, that governs this case. The question whether the First Amendment requires a school to tolerate particular student speech—the question that we addressed in Tinker—is different from the question whether the First Amendment requires a school affirmatively to promote particular student speech. The former question addresses educators’ ability to silence a student’s personal expression that happens to occur on the school premises. The latter question concerns educators’ authority over schoolsponsored publications, theatrical productions, and other expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school. These activities may fairly be characterized as part of the school curriculum, whether or not they occur in a traditional classroom setting, so long as they are supervised by faculty members and designed to impart particular knowledge or skills to student participants and audiences.
Educators are entitled to exercise greater control over this second form of student expression to assure that participants learn whatever lessons the activity is designed to teach, that readers or listeners are not exposed to material that may be inappropriate for their level of maturity, and that the views of the individual speaker are not erroneously attributed to the school. Hence, a school may in its capacity as publisher of a school newspaper or producer of a school play “disassociate itself,” . . . not only from speech that would “substantially interfere with [its] work . . . or impinge upon the rights of other students,” . . . but also from speech that is, for example, ungrammatical, poorly written, inadequately researched, biased or prejudiced, vulgar or profane, or unsuitable for immature audiences. A school must be able to set high standards for the student speech that is disseminated under its auspices—standards that may be higher than those demanded by some newspaper publishers or theatrical producers in the “real” world—and may refuse to disseminate student speech that does not meet those standards. In addition, a school must be able to take into account the emotional maturity of the intended audience in determining whether to disseminate student speech on potentially sensitive topics, which might range from the existence of Santa Claus in an elementary school setting to the particulars of teenage sexual activity in a high school setting. A school must also retain the authority to refuse to sponsor student speech that might reasonably be perceived to advocate drug or alcohol use, irresponsible sex, or conduct otherwise inconsistent with “the shared values of a civilized social order.” . . . or to associate the school with any position other than neutrality on matters of political controversy. Otherwise, the schools would be unduly constrained from fulfilling their role as “a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment.” . . . Accordingly, we conclude that the standard articulated in Tinker for determining when a school may punish student expression need not also be the standard for determining when a school may refuse to lend its name and resources to the dissemination of student expression. Instead, we hold that educators do not offend the
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Categories of Publications
First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns. This standard is consistent with our oftexpressed view that the education of the Nation’s youth is primarily the responsibility of parents, teachers, and state and local school officials, and not of federal judges. . . . It is only when the decision to censor a school-sponsored publication, theatrical production, or other vehicle of student expression has no valid educational purpose that the First Amendment is so “directly and sharply implicate[d]” as to require judicial intervention to protect students’ constitutional rights. We also conclude that Principal Reynolds acted reasonably in requiring the deletion from the May 13 issue of Spectrum of the pregnancy article, the divorce article, and the remaining articles that were to appear on the same pages of the newspaper. The initial paragraph of the pregnancy article declared that “[a]ll names have been changed to keep the identity of these girls a secret.” The principal concluded that the students’ anonymity was not adequately protected, however, given the other identifying information in the article and the small number of pregnant students at the school. Indeed, a teacher at the school credibly testified that she could positively identify at least one of the girls and possibly all three. It is likely that many students at Hazelwood East would have been at least as successful in identifying the girls. Reynolds therefore could reasonably have feared that the article violated whatever pledge of anonymity had been given to the pregnant students. In addition, he could reasonably have been concerned that the article was not sufficiently sensitive to the privacy interests of the students’ boyfriends and parents, who were discussed in the article but who were given no opportunity to consent to its publication or to offer a response. The article did not contain graphic accounts of sexual activity. The girls did comment in the article, however, concerning their sexual histories and their use or nonuse of birth control. It was not unreasonable for the principal to have concluded that such frank talk was inappropriate in a school-sponsored publication distributed to 14-year-old freshmen and
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presumably taken home to be read by students’ even younger brothers and sisters. The student who was quoted by name in the version of the divorce article seen by Principal Reynolds made comments sharply critical of her father. The principal could reasonably have concluded that an individual publicly identified as an inattentive parent—indeed, as one who chose “playing cards with the guys” over home and family—was entitled to an opportunity to defend himself as a matter of journalistic fairness. These concerns were shared by both of Spectrum’s faculty advisers for the 1982–1983 school year, who testified that they would not have allowed the article to be printed without deletion of the student’s name. Principal Reynolds testified credibly at trial that at the time that he reviewed the proofs of the May 13 issue . . . he believed that there was no time to make any changes in the articles, and that the newspaper had to be printed immediately or not at all. It is true that Reynolds did not verify whether the necessary modifications could still have been made in the articles, and that Emerson did not volunteer the information that printing could be delayed until the changes were made. We nonetheless agree with the District Court that the decision to excise the two pages containing the problematic articles was reasonable given the particular circumstances of this case. These circumstances included the very recent replacement of Stergos by Emerson, who may not have been entirely familiar with Spectrum editorial and production procedures, and the pressure felt by Reynolds to make an immediate decision so that students would not be deprived of the newspaper altogether. In sum, we cannot reject as unreasonable Principal Reynolds’ conclusion that neither the pregnancy article nor the divorce article was suitable for publication in Spectrum. Reynolds could reasonably have concluded that the students who had written and edited these articles had not sufficiently mastered those portions of the Journalism II curriculum that pertained to the treatment of controversial issues and personal attacks, the need to protect the privacy of individuals whose most intimate concerns are to be revealed in the newspaper, and “the legal, moral, and ethical restrictions imposed upon journalists within [a] school community” that includes
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adolescent subjects and readers. Finally, we conclude that the principal’s decision to delete two pages of Spectrum, rather than to delete only the offending articles or to require that they be modified, was reasonable under the circumstances as he understood them. Accordingly, no violation of First Amendment rights occurred. The judgment of the Court of Appeals for the Eighth Circuit is therefore Reversed.
CASE NOTES 1. Religious Publications. Once a school opens its doors to become a public forum, it is very difficult to justify exclusion of certain types of publications. In a case where school policy stated that the distribution of printed noncurricular materials was allowed subject to regulations and procedures unless material was “unacceptable” and where the policy further specified that “material that proselytizes a particular religious or political belief” was unacceptable, the court ruled the ban unlawful. The court found that the students had a right to engage in political and religious speech and that the school had no “compelling interest” in restricting such speech. Rivera v. East Otero School District R-1, 721 F. Supp. 1189 (D. Colo. 1989). See also Clark v. Dallas Independent School District, 806 F. Supp. 116 (N.D. Tex. 1992). 2. Time, Place, and Manner. In another case where the court used the public forum analysis, students wanted to distribute a newspaper, Issues and Answers, in the school hallways. The school policy, however, permitted distribution only outside the school building property. The court said the school hallways were nonpublic; therefore, the only applicable regulation was time, place, and manner. The students were, however, allowed to distribute outside the school building. The court observed: “Common sense dictates that the hallways would resemble a three ring circus” if distributions were allowed for all in the hallways. The court quoted Justice Black, who dissented in the famous Tinker case but was quoted in both Bethel School District No. 403 v. Fraser and Hazelwood School District v. Kuhlmeier: “I wish therefore, . . . to disclaim my purpose . . . to hold that the Federal Constitution compels the teachers, parents and elected officials
to surrender control of the American public school system to public school students.” Hemry ex rel. Hemry v. School Board of Colorado Springs, 760 F. Supp. 856 (D. Colo. 1991). In yet another case involving distribution of the newspaper Issues and Answers, the school policy on the distribution of non-school materials was challenged. The court again used the free speech forum analysis instead of the Tinker material and substantial disruption test. The court upheld the school policy that required that the materials first be approved by the principal. The court ruled the principal could determine the time, place, and manner of distribution. The court also ruled that prior regulations prohibiting the distribution of political and religious literature violate the First Amendment’s Free Speech Clause. Nelson v. Moline School District No. 40, 725 F. Supp. 965 (C.D. Ill. 1989). See also Slotterback v. Interboro School District, 766 F. Supp. 280 (E.D. Penn. 1991), which used forum analysis. 3. Vagueness. A school rule, though, may be too broad and so vague as to give school authorities unbridled discretion in exercising prior restraint. In Burch v. Barker, the Ninth Circuit held that a high school prior restraint policy was unconstitutional for lack of specificity on distribution and approval procedures, but, most important, the school policy was overly broad concerning the content-based requirements for the exercise of prior restraint. Burch v. Barker, 861 F.2d 1149 (9th Cir. 1988).
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The Internet and Free Speech
We know that the U.S. Supreme Court has held, in Reno v. American Civil Liberties Union,113 that the Internet as a medium of communication is fully protected by the First Amendment and is more directly related to print than to broadcast. The Internet, however, because of its ubiquitous nature does not fit neatly into First Amendment precedents regarding freedoms of speech and press. Internet instruction used as a part of the school education program may be regulated by the school in accordance with Tinker,114 Fraser,115 Kuhlmeier, 116 and Morse. 117 A student can be a content provider with electronic publication emanating from many sites—school, home, or any
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The Internet and Free Speech
other location. Regardless of the originating site, however, the content conveyed may have an undesirable effect on the proper conduct of the school. One can easily see the nearly unlimited possibilities of Internet-conveyed insults and invective launched from remote locations that may denigrate and embarrass students, teachers, and school administrators, with the potential for harmful effects on the good conduct of the school. Of particular concern to school officials is the problem of cyberbullying and cyberharassment.118 As Jessica Moy points out, the bully or harasser by Internet is much more injurious to the victim because of the unlimited reach of the electronic media. In the face of modern technology, school officials have daunting difficulties in protecting the students and the decorum of the schools. As with school officials, the judges who sit in these cases find themselves largely applying “horse and buggy law” to modern technology. Therefore, the nature of electronic conveyance of questionable content does not lend itself to the usual legal questions arising out of litigation regarding the Kuhlmeier type of “prior restraint.” With the Internet, the school would seldom be in a position to preempt or censor publication of undesirable material. The school’s authority to determine the appropriate “time, place, and manner” of distribution of a hard-copy publication on-campus is hardly applicable where electronic communication is concerned. Moreover, the “nexus” issue becomes much more important and uncertain as school officials attempt to show how the effect of the Internet communication affects the welfare of students and the decorum and conduct of the educational program. Thus, the uniqueness of electronic publication portends the emergence of new precedents not directly addressed in today’s key Supreme Court cases. In seeking a more firm ground of precedent, the Missouri federal district court in Beussink v. Woodland R-IV School District119 reverted to Tinker120 to determine the constitutional appropriateness of a school’s disciplinary action against a student who posted a homepage on the Internet that criticized the school and included “crude and vulgar language.”121 The Tinker122 test, which requires the school to show that the exercise of free speech “would materially and
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substantially interfere” with the operation of the school, was applied in Beussink. Here the school principal made no claim and gave no testimony to indicate that the disciplinary measure was taken against the student out of fear of disruption or interference with school discipline.123 In recent cases, the courts appear to be adhering rather closely to the Tinker standard of the “reasonable forecast of material and substantial disruption.” The Tinker standard is to be applied by a “reasonably objective person” who has in hand the relevant facts. In another informative Internet case, a student posted a video and audio film footage on YouTube that had been surreptitiously filmed of a female teacher ’s buttocks as she walked and another showing a student behind her making pelvic thrusts in her general direction. The video section was preceded by a graphic announcing “Caution, Booty Ahead.” The student was suspended from school and thereafter brought suit seeking a temporary restraining order to prevent the enforcement of the suspension. The case, Requa v. Kent School District No. 415,124 presented a typical free speech issue, and in this instance the filming had taken place at school during school hours. The court applied both Tinker and. Fraser. With regard to Tinker, the court said that it had “no difficulty in concluding that one student filming another student standing behind a teacher . . . making pelvic thrusts in her direction, or a student filming the buttocks of a teacher as she bends over in the classroom, constitutes a material and substantial disruption.” Relying also on Fraser, the court said that the “work and discipline of the school”125 includes “the maintenance of a civil and respectful atmosphere toward teachers and students alike—demeaning, derogatory, sexually suggestive behavior toward an unsuspecting teacher in a classroom poses a disruption of that mission whenever it occurs.”126 At this point, in evolving Internet law as applied to public schools, the best guideposts are Wisniewski v. Board of Education of the Weedsport Central School District 127 (2007) and Doninger v. Niehoff 128 (2008), both decisions of the U.S. Court of Appeals, Second Circuit. In Wisniewski, a student conveyed an icon showing a pistol firing a bullet at a person’s head, with the words “Kill Mr. VanderMolen,” an English teacher. The court addressed the “nexus” issue and invoked Tinker,
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saying that, “off campus conduct can create a foreseeable risk of substantial disruption,”129 upholding suspension of the student. In Doninger,130 a student posted a vulgar and misleading message on a publicly accessible, offcampus weblog (blog) criticizing a school principal and the superintendent for calling off a school “Jam-Fest.” As punishment, the school officials, thereafter, disqualified the student from running for senior class secretary. The court resolved the issue under the Tinker precedent rather than Fraser, because as the court said, “It is not clear . . . that Fraser applies to off-campus speech.”131 In applying its earlier decision in Wisniewski, that relied on Tinker, the court held that it was “reasonably foreseeable” that the student’s posting would reach the school campus and it was, thus, reasonably foreseeable that it would cause material disruption. This connection addresses the nexus issue on which the court further elaborated, citing three factors: First, the language used by the student encouraged others, including students, to contact and pressure the school administration; second, the posting used misleading information that was calculated to disrupt school activities; and, third, the posting was launched for the purpose of “frustration of the proper operation” of the school’s student government. These cases indicate that a court may apply both Tinker and Fraser to resolve Internet cases in balancing the public school interests against a student’s free speech interest. Tinker’s material and substantial disruption test probably lends itself better to Internet activity that originates offcampus and eventually disrupts the conduct of the school, than does Fraser. Fraser, however, might also be cited where student Internet use off-campus is so lacking in civility that the decorum of the school is harmed. Thus, although student use of the Internet presents new avenues by which conflict may occur between student and school, the courts will apparently resolve most issues within the context of Tinker and Fraser. From these precedents one can see that the law governing student cyberspeech is in a stage of early development. In an excellent analysis of Internet law, Verga has summarized as follows: (a) Student cyberspeech created on-campus that is lewd, vulgar, or profane may be prohibited under Bethel v. Fraser.
(b) Student cyberspeech created off-campus that constitutes a “true threat” to school safety and school operation may be prevented under applicable Tinker review.132 (c) Student cyberspeech cases are increasingly subject to a court’s assessment of whether restraint was exercised or punishment meted out only after an assessment of the relevant facts by a reasonable recipient of the information. The reasonable recipient is normally a school official.
Suspension of Student for Internet Message Displaying Pistol Firing Bullet at Teacher’s Head Upheld Under Tinker Standard
Wisniewski v. Board of Education of the Weedsport Central School District United States Court of Appeals, Second Circuit, 2007. 494 F.3d 34 cert. denied, 552 U.S. 1296, 128 S.Ct. 1741, (2008).
JON O. NEWMAN, Circuit Judge. This appeal concerns a First Amendment challenge to an eighth-grade student’s suspension for sharing with friends via the Internet a small drawing crudely, but clearly, suggesting that a named teacher should be shot and killed.. . . This case arose out of an Internet transmission by an eighth-grader at Weedsport Middle School, in the Weedsport Central School District in upstate New York. In April 2001, the pupil, Aaron Wisniewski (“Aaron”), was using AOL Instant Messaging (“IM”) software on his parents’ home computer. Instant messaging enables a person using a computer with Internet access to exchange messages in real time with members of a group (usually called “buddies” in IM lingo) who have the same IM software on their computers. Instant messaging permits rapid exchanges of text between any two members of a “buddy list” who happen to be on-line at the same time. Different IM programs use different notations for indicating which members of a user’s “buddy list” are on-line at any one time. Text sent to and
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The Internet and Free Speech
from a “buddy” remains on the computer screen during the entire exchange of messages between any two users of the IM program. The AOL IM program, like many others, permits the sender of IM messages to display on the computer screen an icon, created by the sender, which serves as an identifier of the sender, in addition to the sender’s name. The IM icon of the sender and that of the person replying remain on the screen during the exchange of text messages between the two “buddies,” and each can copy the icon of the other and transmit it to any other “buddy” during an IM exchange. Aaron’s IM icon was a small drawing of a pistol firing a bullet at a person’s head, above which were dots representing splattered blood. Beneath the drawing appeared the words “Kill Mr. VanderMolen.” Philip VanderMolen was Aaron’s English teacher at the time. Aaron created the icon a couple of weeks after his class was instructed that threats would not be tolerated by the school, and would be treated as acts of violence. Aaron sent IM messages displaying the icon to some 15 members of his IM “buddy list.” The icon was not sent to VanderMolen or any other school official. The icon was available for viewing by Aaron’s “buddies” for three weeks, at least some of whom were Aaron’s classmates at Weedsport Middle School. During that period it came to the attention of another classmate, who informed VanderMolen of Aaron’s icon and later supplied him with a copy of the icon. VanderMolen, distressed by this information, forwarded it to the high school and middle school principals, who brought the matter to the attention of the local police, the Superintendent Mabbett, and Aaron’s parents. In response to questioning by the school principals, Aaron acknowledged that he had created and sent the icon and expressed regret. He was then suspended for five days, after which he was allowed back in school, pending a superintendent’s hearing. VanderMolen asked and was allowed to stop teaching Aaron’s class. At the same time, a police investigator who interviewed Aaron concluded that the icon was meant as a joke, that Aaron fully understood the severity of what he had done, and that Aaron posed no real threat to VanderMolen or to any other school official. A pending criminal case was then closed. Aaron was also evaluated by a
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psychologist, who also found that Aaron had no violent intent, posed no actual threat, and made the icon as a joke. In May 2001 a superintendent’s hearing, regarding a proposed long-term suspension of Aaron, was held before a designated hearing officer, attorney Lynda M. VanCoske. Aaron was charged under New York Education Law § 3214(3) with endangering the health and welfare of other students and staff at the school. In her decision of June 2001, VanCoske found that the icon was threatening and should not have been understood as a joke. Although the threatening act took place outside of school, she concluded that it was in violation of school rules and disrupted school operations by requiring special attention from school officials, replacement of the threatened teacher, and interviewing pupils during class time. The hearing officer acknowledged the opinions of the police investigator and the psychologist that Aaron did not intend to harm VanderMolen and that he did not pose any real threat, but stated that “intent [is] irrelevant.” Citing the evidentiary standard followed in New York suspension hearings, the decision concluded: Substantial and competent evidence exists that Aaron engaged in the act of sending a threatening message to his buddies, the subject of which was a teacher. He admitted it. Competent and substantial evidence exists that this message disrupted the educational environment . . . As a result of the foregoing, I conclude Aaron did commit the act of threatening a teacher, in violation of page 11 of the student handbook, creating an environment threatening the health, safety and welfare of others, and his actions created a disruption in the school environment. The hearing officer recommended suspension of Aaron for one semester. The recommendation was presented to the district’s Board of Education (“Board”), which approved the one semester suspension in late September 2001. Aaron was suspended for the first semester of the 2001–2002 school year. During the period of suspension the school district afforded Aaron alternative education. He returned to school for the spring term. At oral argument, we were advised that because of school and community hostility, the family moved from Weedsport. . . . [W]e turn directly to the merits of the Plaintiffs’
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claim that Aaron’s icon was protected speech under the First Amendment. . . . Even if Aaron’s transmission of an icon depicting and calling for the killing of his teacher could be viewed as an expression of opinion within the meaning of Tinker, we conclude that it crosses the boundary of protected speech and constitutes student conduct that poses a reasonably foreseeable risk that the icon would come to the attention of school authorities and that it would “materially and substantially disrupt the work and discipline of the school.” . . . For such conduct, Tinker affords no protection against school discipline. The fact that Aaron’s creation and transmission of the IM icon occurred away from school property does not necessarily insulate him from school discipline. We have recognized that off-campus conduct can create a foreseeable risk of substantial disruption within a school. . . . (“We can, of course, envision a case in which a group of students incites substantial disruption within the school from some remote locale.”), as have other courts. . . . We are in agreement, . . . that on the undisputed facts, it was reasonably foreseeable that the IM icon would come to the attention of school authorities and the teacher whom the icon depicted being shot. The potentially threatening content of the icon and the extensive distribution of it, which encompassed 15 recipients, including some of Aaron’s classmates, during a three-week circulation period, made this risk at least foreseeable to a reasonable person, if not inevitable. And there can be no doubt that the icon, once made known to the teacher and other school officials, would foreseeably create a risk of substantial disruption within the school environment. Whether these aspects of reasonable foreseeability are considered issues of law or issues of fact as to which, on this record, no reasonable jury could disagree, foreseeability of both communication to school authorities, including the teacher, and the risk of substantial disruption is not only reasonable, but clear. These consequences permit school discipline, whether or not Aaron intended his IM icon to be communicated to school authorities or, if communicated, to cause a substantial disruption. . . . Although the Appellants contend that the First Amendment barred the imposition of any discipline, they
make no distinct challenge to the extent of the discipline. . . . And we are mindful that “[i]t is not the role of the federal courts to set aside decisions of school administrators which the court may view as lacking a basis in wisdom or compassion.” However, in the absence of a properly presented challenge, we do not decide whether the length of the one semester suspension exceeded whatever constitutional limitation might exist. We rule only that the First Amendment claims against the School Board and the Superintendent were properly dismissed, and that the state law claims were properly left for whatever state court adjudication might be available. We need not rule on the Superintendent’s defense of qualified immunity. The judgment of the district court is affirmed.
CASE NOTES 1. The federal law, the Children’s Internet Protection Act (CIPA), provides that public libraries and public schools can be required to install filters on Internet computers as a condition of receiving technology grants to protect children and youth who are 17 years of age or younger. The filters are to block depictions of obscenity, child pornography, and other material harmful to minors. The American Library Association filed a complaint in federal court maintaining that such a provision violated the First and Fifth Amendments. The U.S. Supreme Court held that public libraries were not traditional or limited public forums. The Court said that: A public library does not acquire Internet terminals in order to create a public forum for Web publishers to express themselves, any more than it collects books in order to provide a public forum for the authors of books to speak.
In other words, the purchase of books and the providing of Internet do not, of themselves, create a public forum. Congress provides two types of federal assistance: First, the E-rate program established by the Telecommunication Act of 1996 that entitles qualifying libraries to buy Internet access at a discount, 110 Stat. 71, 47 U.S.C. § 254 (h) (l); and under the Libraries Services and Technology Act (LSTA), 110 Stat. 3009295, as amended, 20 U.S.C. § 9101 et seq., grants are made to state library administrative
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The Internet and Free Speech
agencies to “electronically link libraries with educational, social, or information services,” electronic networks. Congress enacted the law because it became concerned that public libraries were being used by sexual predators to prey on minors, and, thereafter, Congress enacted CIPA. The Supreme Court, in applying public forum principles (See above, “Forum Analysis Applied to Schools,” Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 394, 1135 S. Ct. 2141 (1993)), to plaintiffs’ claim ruled that public libraries were either “traditional” or “designated” forums. The “designated public forum” the Court refers to here has the attributes of a limited public forum as defined in Lamb’s Chapel. The Court explained that the public library was clearly not a “traditional” public forum, as is a Hyde Park Corner, and neither was it a “designated” or “limited” public forum. According to the Court’s criteria, a “designated” or “limited” public forum cannot be created by government inaction or omission, but rather can only be created by intentionally opening up a “closed” or “non-traditional” forum for public discourse. In this light, libraries do not create “traditional” or “designated” public forums by merely providing the public access to Internet. Therefore, the federal government can require public libraries, as a condition of receiving federal discounts and grants, to apply filters to Internet access for minors. United States v. American Library Association, Inc., 539 U.S. 194, 123 S. Ct. 2297 (2003). 2. Computers and Internet. Where a high school student was expelled from school for publishing in an underground newspaper an article on how to “hack” the school’s computers, the U.S. Court of Appeals for Seventh Circuit denied injunctive relief to the student in view of the harm to the school district and the likelihood that the school board would prevail in the case on its merits. Boucher v. School Board of the School District of Greenfield, 134 F.3d. 821 (1998). 3. Cell Phones. A school rule prohibiting possession of cell phones in public schools does not violate any fundamental rights that parents might claim in making decisions concerning the care, custody, and control of their children. Where parents claimed the denial of cell phones violated their due process rights
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under due process clauses of federal and state constitutions, the court ruled against the parents, holding that cell phones are not fundamental instrumentalities to the exercise of constitutional rights and that their banning from school premises did not fundamentally prevent communications between parent and child. Price v. New York City Board of Education, 837 N.Y.S.2d 507 (N.Y. Sup. 2007). 4. The Internet and Free Speech. The regulation of telecommunications in preventing the transmission of obscene or indecent communications to minors has become an important political issue at both the federal and the state levels. In an attempt to protect minors (persons under the age of 18) from undue exposure to offensive information, Congress enacted the Communications Decency Act (CDA) in 1996. This Act sought to control “cyberporn” and, thereby, protect minors from harmful material on the Internet. Congress, under CDA, criminalized the “knowing” transmission of “obscene or indecent” messages to any recipient under 18 years of age. The U.S. Supreme Court held the Act to be unconstitutional because it was “facially overbroad” in violation of the First Amendment. The Court, while acknowledging that its own precedents in Ginsberg v. New York, 390 U.S. 629, 88 S. Ct. 1274 (1968) and FCC v. Pacifica, 438 U.S. 726, 98 S. Ct. 3026 (1978), permitted governmental restriction of certain materials to children, pointed out that this particular Act (CDA) was too vague and ill-defined. The Supreme Court concluded that: [W]e are persuaded that the CDA lacks the precision that the First Amendment requires when a statute regulates the content of speech. In order to deny minors access to potentially harmful speech, the CDA effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another. That burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve. The imprecision in the CDA statute came from the failure of the Congress to define “indecent” and “patently offensive” material. The Court observed that under the law as now written a parent could face a lengthy prison term for sending her seventeen-year-old college freshman daughter information about birth control by e-mail. Reno v. American Civil Liberties Union, 1997 WL 348012, 97 Cal. Daily Op. Serv. 4998 (1997).
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5. Sexting. Students should be aware of the dangers of “sexting.” Sexting, popular among teenagers, is the practice of sending or posting sexually suggestive text messages and images, including nude or semi-nude photographs, on cellular telephones and over the Internet. The subject usually takes a picture of herself or himself with a digital camera or a cell phone camera or has someone take the picture and then it is electronically conveyed. In 2009 it was estimated that 20 percent of teenagers, 13 to 19 years, had been involved in sexting. State criminal laws prohibit such use of the phone lines and Internet, the violation of which can result in criminal penalties. See: Miller v. Skumanick, 605 F. Supp. 2d 634 (U.S.D.C., M.D. Pennsylvania, 2009).
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Student Personal Appearance
The great weight of judicial authority supports the proposition that a board of education possesses the authority to regulate pupil dress and personal appearance if they become so extreme as to interfere with a school’s favorable learning atmosphere. An illustration of this judicial position was provided many years ago when the Arkansas Appellate Court133 upheld a school regulation that forbade the wearing of low-necked dresses, any immodest dress, or the use of face paints or cosmetics. An application of somewhat more recent vintage is the right of a school district to require pupils to participate in physical education programs and to wear clothing suitable for these occasions. The majority rule in these instances is that the pupils must participate in physical education programs, but they may not be required to wear “immodest” attire.134
STUDENT PERSONAL APPEARANCE Grooming regulations governing students’ personal appearances are valid where reasonable and where rationally related to or justified by a need to maintain school decorum or prevent undue distractions which might interfere with the educational process.
Students and parents have relied on several legal issues in contesting student appearance regulations, including freedom of speech, guaranteed by the First Amendment; the Due Process and Equal Protection Clauses of the Fourteenth Amendment; the Ninth Amendment, which provides for retention of rights by the people; and even the civil rights acts. The cases convey a lack of agreement by the courts in the application of these rights to students in public schools.
HAIR LENGTH As an indication of this lack of a clear precedent, the courts appear to be about evenly split on the constitutional status of haircuts. The courts have been unable to agree and enunciate any consistent constitutional guideline for schools to follow in dealing with the issue of personal appearance generally and haircuts specifically. Although the precedents generally follow Tinker, it is difficult to see precisely how untidy hair can rise to the level of a constitutional concern for either the student or the school. From the student’s viewpoint, it is difficult to convincingly show that a haircut will in some fashion harm a constitutionally protected interest—that is, of course, providing that the school officials had in mind clipping the hair and not pulling it out. On the other hand, school officials are hard-pressed to show that untidy hair is of much educational significance and, certainly, that unkempt or long hair would substantially disrupt the school. The U.S. Supreme Court has rejected the entire question by pointing out that the issue is de minimis. Nevertheless, much litigation has enveloped this problem. The federal circuit courts of appeals are divided as to whether and under what conditions schools may regulate student hairstyles. The Third, Fifth, Sixth, Ninth, Tenth, and Eleventh Circuits have upheld school regulation of haircuts, whereas the First, Second, Fourth, Seventh, and Eighth have ruled that grooming has attendant constitutional rights. In King v. Saddleback Junior College District, 135 the Ninth Circuit ruled that long hair is not protected by the constitutional rights of privacy. The Sixth Circuit ruled that hair that is a distracting influence could be regulated. 136 In the same year, the First Circuit found that students’ hair
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Student Personal Appearance
is protected by the Due Process Clause of the Fourteenth Amendment (establishing “a sphere of personal liberty”).137 In the case of Ferrell v. Dallas Independent School District, 138 suit was brought to enjoin school officials from refusing to enroll male pupils who had failed to comply with a school regulation banning long hair. The U.S. District Court for the Northern District of Texas denied any injunctive relief, and the pupils appealed. The Fifth Circuit Court of Appeals held that the regulation promulgated by the principal was valid. In another case, the Fifth Circuit ruled against three male pupils who refused to shave in compliance with a good-grooming rule of their school. This court noted, with approval, the sentiment of the district court that “the Court felt somewhat put upon by having to fit a controversy over shaving into an inordinately busy schedule. It was viewed as a problem for school administrators. . . . The entire problem seems minuscule in light of other matters involving the school system.”139 The Fourth Circuit, 140 in reviewing all the relevant appellate haircut decisions, concluded that the state interest may overcome the student’s constitutional interest if the evidence indicates that the health and safety of the student are jeopardized. In so holding, this court, though, did acknowledge that hairstyle is a constitutionally protected right “to be secure in one’s person” as guaranteed by substantive due process. Thus, buried in the haircut cases is a full panoply of constitutional provisions including freedom of expression, substantive due process, and equal protection. Whether these constitutional standards apply to restrict the authority of school officials depends more on the jurisdiction than on the constitutional concept invoked by the plaintiff. The impact of Fraser on these cases is yet to be determined, but if current judicial trends continue to vest more discretion in school officials, it is likely that lower courts will increasingly allow for less student latitude.
SCHOOL UNIFORMS Public schools are the foremost institutions in society created to elevate humanity and to
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instill a heightened level of civility among the citizenry. This is done by engendering values of community and restraining the more primitive and negative natural impulses of youth. Those impulses have at least two aspects with which the school must deal. First, young persons tend to be more susceptible to discord and passion than adults, a circumstance that is exacerbated by less education and experience. Each person, adult and youth alike, as Thomas Hobbes explained in 1658, is possessed of a self-interest and, “supposing himself above others, will have license to do what he lists, and challenges respect and honour, as due him before others; which is an argument of a fiery spirit.”141 Fiery spirit and combativeness are a trait of the young with which the schools must constantly contend if decorum is to be maintained and learning is to prevail. The second aspect is the natural human tendency to form into groups, tribes, states, or nations to better effectuate selfinterests. Nations as large bodies of people are possessive and territorial, seeking hegemony over others, to advance their wills and designs by strength of numbers. In order to advance their nationalism, these large groups coalesce around flags, patriotic songs, ideology, myths, language, dress, and other means of identification. Too often these groups are mobilized to indulge in conflicts with tragic results. Youth gangs reflect these human characteristics in a microcosm, and schools are unfortunately the venue where these primitive but natural urges are most frequently exhibited. As Guzick v. Drebus 142 indicates, school administrators are well aware of the problems that can emanate from buttons, insignia, or dress that create artificial barriers within the student body that have divisive effects for the conduct of the school. A recent popular method of masking differences in students is the requirement of the wearing of school uniforms. Supporters of uniforms in schools cite statistics that show that the incidence of gangs, violence, and crime in schools has dropped dramatically after compulsory uniform policies have been implemented.143 Yet, some students and parents oppose these requirements, maintaining that the compulsory wearing of uniforms denies freedom of expression and speech. An Arizona court144 has held that a mandatory school policy requiring that
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all students wear plain white shirts and navy pants, shorts, or skirts is constitutional. The court said the rule was “content-neutral” and did not constitute an impermissible restriction on the students’ religious or political beliefs or sentiments. According to this court, Tinker145 did not control because the uniform policy was not “content-based” and because, based on the facts presented, the school was not a public forum. The court concluded that the policy was reasonable in that it increased campus safety and security and in that it related to a legitimate pedagogical purpose of the school. Yet, it should be noted that in this case the decision was apparently influenced by the fact that students who objected to the uniform policy could transfer to another school, either within or outside the school district. In another state court case, the Connecticut Superior Court, in Byars v. City of Waterbury,146 upheld a school uniform policy with an “optout” provision that permitted students, with parental permission, to be excluded from the requirement. The court said that it agreed with the U.S. Supreme Court’s assertion in Belotti v. Baird 147 that minors do not have rights equal with those of adults, and consequently the state could exercise greater control over children than it could over adults. The school district in Byars justified the school uniform policy in several ways, indicating that it maintained order and decorum in the educational environment, avoided disruptions in the classroom, promoted discipline, avoided distractions of other pupils, prevented disturbances, and promoted safety. Too, with regard to safety, evidence was presented to the court showing that the uniform dress policy prevented the wearing of baggy blue jeans in which weapons could be concealed.148 Further, the court accepted the district’s evidence that the uniformity of dress fosters school unity and pride, eliminates dress competition, ensures modest dress, simplifies dressing, and costs parents less. The court further cited the Supreme Court decision in United States v. O’Brien149 where it held that the wearing of a particular type or style of clothing usually is not seen as expression of speech in a constitutionally protected sense. The state court concluded that the school attire
policy was rationally related to the school district’s legitimate interest in protecting the health and safety of students. Neither Byars 150 nor the Arizona case, Green, 151 decided directly whether an “optout” provision is essential to the constitutionality of a school uniform policy, If, however, such a policy is viewed as content-neutral, and the school is considered as a nonpublic forum, then an opt-out provision may not be necessary; however, most school districts having school uniform policies do include such provisions.152
Mandatory Uniform Policy Does Not Violate Students’ First Amendment Rights
Canady v. Bossier Parish School Board United States Court of Appeals, Fifth Circuit, 2001. 240 F.3d 437.
ROBERT M. PARKER, Circuit Judge. This Court is called on once again to assess the steps taken by school officials to improve the quality of education in our nation’s public schools. While maintenance of order and promotion of acceptable standards of classroom conduct are synonymous with ensuring an adequate education system, school officials are not given free reign to abridge students’ constitutional rights. . . . In this case we review the district court’s order granting summary judgment in favor of the Bossier Parish School Board. The district court concluded that the school board’s rule implementing a mandatory school uniform policy did not violate the First Amendment rights of its students. In 1997, the Louisiana Legislature amended section 17:416 of the Louisiana Revised Civil Statutes to allow parish school boards the discretion to implement mandatory uniforms, provided the school board gives the students’ parents written
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Student Personal Appearance
notice explaining the dress requirements. . . . In the 1998–1999 school year, the Bossier Parish School Board required sixteen of its schools to adopt mandatory uniforms in order to determine the effect of the uniforms on the learning environment. After receiving favorable results, the School Board implemented mandatory school uniforms in all of the parish public schools beginning with the 1999–2000 school year. The average uniform consisted of a choice of two colors of polo or oxford shirts and navy or khaki pants. The schools alerted parents by letter about the dress specifications, provided a list of local vendors supplying the required clothing, and displayed an example of the uniform at each school. Several parents of students in the Bossier Parish School System filed this suit in federal court seeking an injunction against the schools’ enforcement of the uniform policy. The parents claimed that the dress code violated their children’s First Amendment rights to free speech, failed to account for religious preferences, and denied their children’s liberty interest to wear clothing of their choice in violation of the Fourteenth Amendment. . . . The parents’ argument on appeal is twofold. The parents first argue that the trial court erred by concluding that the enforcement of the school uniform policy did not violate their children’s constitutional rights. The parents also claim that the trial court abused its discretion by denying them additional time to conduct discovery. . . . Before determining whether the School Board properly imposed the mandatory uniform policy, we must ascertain whether a person’s choice of attire qualifies as speech protected by the First Amendment. “The question of the protected status of speech is one of law, and as such, we review the issue de novo.” . . . The district court, . . . concluded that choice of clothing is a matter of personal taste or style and is not afforded First Amendment protection. . . . We disagree. While a person’s choice of clothing may be predicated solely on considerations of style and comfort, an individual’s choice of attire also may be endowed with sufficient levels of intentional expression to elicit First Amendment shelter.
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The Supreme Court recognizes that conduct coupled with communicative content raises First Amendment concerns. . . . However, the First Amendment does not safeguard a limitless variety of behavior. . . . “In deciding whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play, we [must] ask whether ‘[a]n intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it.’ ” . . . When assessing the appellants’ claim, we look to the particular activity, combined with the factual context and environment in which it was undertaken. . . . . . . [S]tudents in particular often choose their attire with the intent to signify the social group to which they belong, their participation in different activities, and their general attitudes toward society and the school environment. While the message students intend to communicate about their identity and interests may be of little value to some adults, it has a considerable affect, whether positive or negative, on a young person’s social development. Although this sort of expression may not convey a particularized message to warrant First Amendment protection in every instance, we cannot declare that expression of one’s identity and affiliation to unique social groups through choice of clothing will never amount to protected speech. . . . . . . For purposes of this opinion, however, we assume that the First Amendment applies to the students’ choice of clothing. . . . While certain forms of expressive conduct and speech are sheltered under the First Amendment, constitutional protection is not absolute, especially in the public school setting. Educators have an essential role in regulating school affairs and establishing appropriate standards of conduct. See Bethel School Dist. No. 403 v. Fraser, . . . 106 S. Ct. 3159, . . . (1986). “A school need not tolerate student speech that is inconsistent with its ‘basic educational mission,’ even though the government could not censor similar speech outside the school.” Hazelwood School Dist. v. Kuhlmeier, . . . 108 S. Ct. 562, . . . (1988) (quoting Fraser, 478 U.S. at 685, 106 S. Ct. 3159). School boards, not federal courts, have the authority to decide what
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constitutes appropriate behavior and dress in public schools. . . . The level of scrutiny applied to regulations of student expression depends on the substance of the message, the purpose of the regulation, and the manner in which the message is conveyed. . . . The Supreme Court has established three categories of student speech regulations. The first category involves school regulations directed at specific student viewpoints. In Tinker v. Des Moines Independent Community School District, . . . The Court held that suppression of the students’ political expression could not be validated when the students’ behavior did not contribute to a disturbance in the educational environment. . . . The Court concluded that when officials attempt to restrict students from expressing particular political views, they must demonstrate that the expression would “substantially interfere with the work of the school or impinge upon the rights of other students.” . . . The second category of regulated student expression involves lewd, vulgar, obscene, or plainly offensive speech. See Chandler v. McMinnville School Dist., 978 F. 2d 524, 529 (9th Cir. 1992). In Bethel School District v. Fraser, school officials suspended a student for delivering a nomination speech at a school assembly because the speech contained sexually explicit metaphors that the school deemed inappropriate for the members of the audience. . . . The Supreme Court, diverging from the Tinker analysis, held that it was appropriate for educators to protect students from sexually explicit, indecent, or lewd speech. The Court was careful to note that “[u]nlike the sanctions imposed on the students wearing armbands in Tinker, the penalties imposed in [Fraser] were unrelated to any political viewpoint.” . . . The final category of regulated student speech is student expression that is related to schoolsponsored activities. In Hazelwood School District v. Kuhlmeier, . . . The students argued that their First Amendment rights were violated when the school authorities deleted certain newspaper articles relating to pregnancy and the affects of divorce on the lives of adolescents. . . . The Supreme Court concluded that the Tinker analysis does not apply when “the First Amendment
requires a school affirmatively to promote particular student speech.” . . . After determining that schools were not traditional public forums for First Amendment activity, the Court held that school officials could regulate schoolsponsored activities such as publications, theatrical productions, and any other conduct related to the school’s curriculum if “their actions are reasonably related to legitimate pedagogical concerns.” . . . The facts of this case do not readily conform to either of the three categories addressed by the Supreme Court. The School Board’s mandatory uniform policy is viewpoint-neutral on its face and as applied. School officials have not punished students for wearing clothing with lewd, obscene, or patently offensive words or pictures. Finally, a student’s choice to wear certain apparel to school is neither an activity that the school sponsors nor is it related to the school curriculum. Thus, the appellants’ argument does not easily correspond to either Tinker, Fraser, or Kuhlmeier. While Tinker addressed disciplinary action by school officials directed at the political content of student expression, several circuits have relegated cases that do not comport with the Court’s reasoning in Fraser and Kuhlmeier to this view-point-specific category. . . . Because (1) choice of clothing is personal expression that happens to occur on the school premises and (2) the School Board’s uniform policy is unrelated to any viewpoint, a level of scrutiny should apply in this case that is higher than the standard in Kuhlmeier, but less stringent than the school official’s burden in Tinker. . . . Thus, the School Board’s uniform policy will pass constitutional scrutiny if it furthers an important or substantial government interest; if the interest is unrelated to the suppression of student expression; and if the incidental restrictions on First Amendment activities are no more than is necessary to facilitate that interest. . . . Improving the educational process is undoubtedly an important interest of the Bossier Parish School Board. . . . The School Board’s purpose for enacting the uniform policy is to increase test scores and reduce disciplinary problems throughout the school system. This purpose is in no way related to the suppression of student
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Student Personal Appearance
speech. Although students are restricted from wearing clothing of their choice at school, students remain free to wear what they want after school hours. Students may still express their views through other mediums during the school day. The uniform requirement does not bar the important “personal intercommunication among students” necessary to an effective educational process. . . . Appellants argue that the uniform requirement does not adequately further the School Board’s interest in improving education in the parish schools. In its summary judgment affidavits, the School Board presented statistics showing that, after one year of implementing school uniforms in several parish schools, discipline problems drastically decreased and overall test scores improved. The appellants offered no affidavits that raise a fact issue concerning this concrete evidence. In their affidavits, appellants argue that the School Board’s reasons for implementing the uniforms were inadequate in light of the students’ First Amendment rights. As previously noted, however, it is not the job of federal courts to determine the most effective way to educate our nation’s youth. . . . Because the appellants’ summary judgment evidence does not raise an issue of fact as to whether the uniform policy furthers the improvement of education in the Bossier Parish school system, we affirm the district court’s order granting summary judgment on the appellants’ First Amendment claim. . . . The appellants also argue that students have a “liberty” interest in choosing to wear whatever clothing they wish. Because the First Amendment provides an adequate source of constitutional protection in this case, there is no reason for this Court to address a general substantive due process claim. . . . Appellants further argue that requiring parents to buy uniforms creates too large a financial burden and effectively denies some students the right to a free education as provided by the Louisiana Constitution. Appellants’ brief does not adequately outline a cognizable constitutional argument on which this Court can grant relief, and it is therefore abandoned. . . . In any event, the School Board has provided evidence that school uniforms are donated by organizations to the less
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fortunate. Because uniforms are available at inexpensive retail stores, it is hard to imagine how the purchase of uniforms consisting of a certain color of shirt and pants could be any more expensive than the normal cost of a student’s school clothes. . . . AFFIRMED.
CASE NOTES 1. Native Americans Hair Length as Speech and Religion. Whether Native American students can be required by a school district to alter their hair style may be not merely a matter of speech and expression, but can implicate freedom of religion as well. In a 2010 case rendered by the U.S. Court of Appeals, Fifth Circuit, Native American parents and students sued a Texas school district alleging that a school grooming policy, that required the boy to wear his long hair in a bun on top of his head or in a braid tucked into his shirt, violated the student’s rights under the Free Exercise Clause of the First Amendment as well as a state statute, the Texas Religious Freedom Restoration Act (TRFRA). The circuit court found that the wearing of visibly long hair was a tenet of Native American religious belief and that to restrain such required the school district to show a compelling state interest. According to the court, the school district’s interests in hygiene, preventing disruption, avoiding safety hazards, instill discipline and establishing uniformity among students were not sufficiently important to the state to constitute a compelling interest to overcome religious beliefs. The court observed that girls were permitted to wear their hair visibly long and the practice was not restrained by the school as offensive to any of the school’s interests. The school’s policy also violated the TRFRA that requires a policy to be “narrowly tailored” if it is to restrict the religious freedom of an individual. Betenbaugh v. Needville Independent School District, 611 F.3d 248 (5th Cir. 2010). 2. In an earlier Texas case, a federal district court, the hair length of Native Americans has such constitutional overtones as to reach the issue of religious freedom as well as substantive due process and free speech. This
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court held that even though hair length does not constitute a fundamental tenet of Native American religious orthodoxy, long hair is nevertheless deeply rooted in traditional Indian religious beliefs, and the regulation of hair length by the school intrudes on those beliefs. The school’s interest in having a dress code that fostered respect for authority and projected a good public image is not so compelling as to overcome religious practice and belief. Further, the court found that both liberty and property interests of the Indian students were offended as well as freedom of speech. Alabama & Coushatta Tribes v. Big Sandy School District, 817 F. Supp. 1319 (E.D. Tex. 1993). 3. In a case where students dressed as persons of the opposite sex and were escorted from the school prom by police at the request of school officials, the court held for the officials, saying that students were not denied First Amendment, due process, or equal protection rights. Harper v. Edgewood Board of Education, 655 F. Supp. 1353 (S.D. Ohio 1987). In so holding, the court cited Gfell v. Rickelman, 441 F. 2d 444 (6th Cir. 1971), wherein the Sixth Circuit upheld grooming codes regarding hair length as reasonably related to “the maintenance of discipline, promotion of safety . . . and the furtherance of valid educational purposes.” In further quoting Gfell, the court said that regulations which deal generally with dress and the like are a part of the disciplinary process which is necessary in maintaining a balance as between the rights of individual students and the rights of the whole in the functioning of schools. 441 F.2d at 446.
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Summation of Case Law
Material and Substantial Disruption: Tinker 1. Pure speech is entitled to comprehensive protection under the First Amendment. 2 Students are “persons” under the Constitution and are possessed of fundamental rights which the state must respect, just as they themselves must respect their obligations to the state.
3. Neither students nor teachers shed their constitutional rights to freedoms of speech or expression at the schoolhouse gate. 4. In order for public school officials to justify prohibition of a particular expression of opinion they must be able to show that their actions were caused by something more than mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. 5. Where there is no finding and no showing that the exercise of a forbidden right of expression of opinion would “materially and substantially” interfere with requirements of appropriate discipline in operation of a school, the prohibition cannot be sustained. 6. A prohibition by school authorities of expression of one particular opinion, without evidence that it is necessary to avoid material and substantial interference with school work or discipline, is not constitutionally permissible. Civil Discourse at School: Fraser 1. Freedom to advocate unpopular and controversial views in schools and classrooms must be balanced against society’s countervailing interest in teaching students the boundaries of socially appropriate behavior. 2. It is a highly appropriate function of a public school to prohibit the use of vulgar and offensive terms in public discourse. 3. First Amendment jurisprudence recognizes an interest in protecting minors from exposure to vulgar and offensive spoken language, and where such is conveyed, the speaker’s constitutional rights of free speech can be curtailed. 4. Nothing in the U.S. Constitution prohibits states from insisting that certain modes of expression are inappropriate and subject to sanctions; furthermore, inculcation of these civil values is truly the work of schools, and the determination of what manner of speech in the classroom or school assembly is inappropriate properly rests with the school board.
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Summation of Case Law
Drugs and Speech: Morse 1. Constitutional rights of students in public schools are not automatically coextensive with rights of adults in other settings, and the rights of students must be applied in light of special characteristics of the school environment. 2. Schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use or other illegal undertakings. School Newspapers: Kuhlmeier 1. A public school administration need not tolerate student speech that is inconsistent with the school’s basic educational mission, even though the government could not censor similar speech outside school. 2. A school facility may be deemed a “public forum,” for purposes of the First Amendment only if school authorities have, by policy or practice, opened the facility for indiscriminate use by the general public or by some segment of the public, such as student organizations and/or other groups external to the school. 3. Educators are entitled to exercise greater control over school-sponsored student expression than over students’ personal speech in order to assure that participants learn whatever lessons the expressive activity is designed to teach. 4. A school may refuse to sponsor student speech which might reasonably be perceived to advocate conduct inconsistent with shared values of civilized social order, or which associates the school with any position other than neutrality on matters of political controversy. 5. A public school must be able to set high standards for student speech that is disseminated under its auspices and it may refuse to disseminate speech that does not meet those standards. Threats of Violence 1. As a general matter, the First Amendment prohibits governmental actors from controlling what persons may see, read, speak, or
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hear, but free speech protections do not extend to certain categories or modes of expression, such as obscenity, defamation, fighting words, and threats of violence. 2. The government’s proscription of speech within the categories or modes of expression which may be prohibited, such as obscenity, defamation, and fighting words, may not, in general, be based on the content of the speech or the speaker’s viewpoint. 3. A “true threat,” not constituting protected speech, is a statement that a reasonable recipient would have interpreted as a serious expression of an intent to harm or cause injury to another. The recipient’s reaction must be a reasonable one even if he or she suffers some unique sensitivity. Factors relevant to how a reasonable recipient would view the purported threat include: (1) the reaction of those who heard the alleged threat; (2) whether the threat was conditional; (3) whether the person who made the alleged threat communicated it directly to the object of the threat; (4) whether the speaker had a history of making threats against the person purportedly threatened; and (5) whether the recipient had a reason to believe that the speaker had a propensity to engage in violence. 4. A threat does not need to be logical or based in reality before school officials may, consistent with the First Amendment, punish the person who makes it. Internet Threats 1. School officials do not violate a student’s First Amendment free speech rights by suspending him or her, even though the student created and transmitted the “threat” off of school property. For example, a student’s sending of instant messages over the Internet to classmates displaying a drawing of a pistol firing bullet at person’s head, above which were dots representing splattered blood, and beneath which appeared the word kill followed by name of student’s English teacher, posed a reasonably foreseeable risk that the drawing would come to the attention of school authorities and would materially and substantially disrupt
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work and discipline of school. The drawing’s potentially threatening content and its distribution to several recipients, including classmates, made material disruption reasonably foreseeable.
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Research Aids
Research citations below are abbreviated as: American Law Reports (A.L.R.), American Jurisprudence (Am.Jur.), Corpus Juris Secundum (C.J.S.), and McQuillen Municipal Corporations (McQuillen Mun.Corp.). Explanations for each of these sources of law are found in Chapter 1 of this text. Also, see Appendix B of this book. 16A C.J.S. Constitutional Law § 678. Personal, Civil, and Political Rights and Freedoms: Students. 76 A.L.R. Fed. 599. What Oral Statement of a Student Is Sufficiently Disruptive so as to Fall Beyond Protection of the First Amendment. 16 Am.Jur.2d Constitutional Law § 489. Fundamental Rights and Privileges: Freedom of Speech and Press; Who Is Protected? 67B Am.Jur.2d Schools § 301. School Regulation of Students: Students’ Rights to Freedom of Expression and Personal Autonomy; Free Speech. 16B C.J.S. Constitutional Law § 919. Students Freedom of Speech: Regulation of Vulgar and Lewd Speech. 16B McQuillen Mun.Corp. (3rd ed.) § 46.22.30. Constitutional Rights of Students: Right of Free Speech. 16 Am.Jur. Proof of Facts 2d 493. Liability for Abusive Language. 20 A.L.R. 4th 773. Civil Liability for Insulting or Abusive Language—Modern Status. 20 A.L.R. 4th 773. Threats—Recovery Permitted. 16B C.J.S. Constitutional Law § 905. Freedom of Speech and Press: Use of School Facilities; Public Forum Analysis. 79 A.L.R.2d 1148. Use of Public School Premises for Religious Purposes During Nonschool Time. 16B C.J.S. Constitutional Law § 908. Freedom of Speech and Press: Schools and Colleges; Distribution of Literature.
Personal Appearance 58 A.L.R. 5th 1. Validity of Regulation by Public School Authorities as to Clothes or Personal Appearance of Pupils. 16B McQuillin Mun.Cpr. (3rd ed.) § 46.22.20. Students: Personal Grooming. 16 A.L.R. Fed. 182. Validity, Under U.S. Constitution, of Public School or State College Regulation of Student Newspapers, Magazines, or other Publications. Law Reviews Perry A. Zirkel, “Student Speech: A Degrading Test?” 38 Journal of Law and Education 603 (2009). Philip T.K. Daniel and Silas McCormick, “Technological Advances, Student Expression, and the Authority of School Officials,” 248 Education Law Reporter 553, (2009). Bryan Starrett, “Tinker’s Facebook Profile: A New Test for Protecting Student Cyber Speech,” 14 Virginia Journal of Law & Technology 212 (2009). Thomas Patteson, “ ‘Shedding Their Rights at the Schoolhouse Gate’: Morse v. Frederick and the Student’s Right to Free Speech,” 38 Journal of Law and Education 545 (2009). Jessica Moy, “Beyond ‘The Schoolhouse Gates’ and into the Virtual Playground: Moderating Student Cyberbullying and Cyberharassment after Morse v. Frederick,” 37 Hastings Const. L.Q. 565 (2010). Allison E. Hayes, “From Armbands to Douchebags: How Doninger v. Niehoff Shows the Supreme Court Needs to Address Student Speech in the Cyber Age,” 43 Akron L. Rev. 247 (2010). Emily Gold Waldman, “Regulating Student Speech: Suppression Versus Punishment,” 85 Ind. Law Journal 1113 (2010). Frank D. LoMonte, “Shrinking Tinker: Students are ‘Persons’ Under Our Constitution—Except When They Aren’t,” 58 Am.U.L. Rev. 1323 (2009). Todd A. DeMitchell and Mark A. Paige, “School Uniforms in the Public Schools: Symbol or Substance? A Law & Policy Analysis,” 250 Ed. Law. Rep. 847 (2010).
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Endnotes
1. Tinker v. Des Moines Independent School District, 393 U.S. 503, 89 S. Ct. 733 (1969). 2. For discussion of rights versus privilege, see John E. Nowak and Ronald D. Rotunda, Constitutional Law, 6th ed. (St. Paul, Minn.: West Group, 2000), p. 547.
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Endnotes 3. San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S. Ct. 1278, reh’g denied, 411 U.S. 959, 93 S. Ct. 1919 (1973). 4. Tinker v. Des Moines Independent School District, op. cit. 5. Ibid. 6. Whitney v. California, 274 U.S. 357, 47 S. Ct. 641 (1927). 7. Ibid. 8. Erwin Chemerinsky, Constitutional Law: Principles and Policies, 2nd ed. (New York: Aspen Law & Business, 2002), pp. 895–900. 9. Ibid. 10. Abrams v. United States, 250 U.S. 616, 40 S. Ct. 17 (1919) ( Justice Holmes, dissenting). 11. Chemerinsky, op. cit., p. 899. 12. Ibid.; C. Edwin Baker, “Scope of the First Amendment Freedom of Speech,” 25 U.C.L.A., Law Rev. 964, 994 (1978). 13. Procunier v. Martinez, 416 U.S. 396, 94 S. Ct. 1800 (1974). 14. Chemerinsky, op. cit., p. 900. 15. Ibid. 16. Ibid. 17. Ibid.; See also: Ronald Cass, “The Perils of Positive Thinking: Constitutional Interpretation and Negative First Amendment Theory,” 34 UCLA Law Rev. 1405 (1987). 18. Patterson v. Colorado, 205 U.S. 454, 27 S. Ct. 556 (1907). 19. Nowak and Rotunda, op. cit., p. 1060. 20. Abrams v. United States, 250 U.S. 616, 40 S. Ct. 17 (1919) (dissenting opinion). 21. Nowak and Rotunda, op. cit., p. 1062. 22. Kovacs v. Cooper, 336 U.S. 77, 69 S. Ct. 448 (1949), reh’g denied, 336 U.S. 921, 69 S. Ct. 638 (1949) (concurring opinion). 23. Murdock v. Pennsylvania, 319 U.S. 105, 63 S. Ct. 870 (1943). 24. Konigsberg v. State Bar of California, 366 U.S. 36, 81 S. Ct. 997 (1961) (dissenting opinion). 25. Ibid. (majority opinion, Justice Harlan). 26. Ibid. 27. Schenck v. United States, 249 U.S. 47, 39 S. Ct. 247 (1919). 28. Chemerinsky, op. cit., p. 895. 29. Ibid. 30. Ibid. 31. Tinker v. Des Moines Independent School District, op. cit. 32. Ibid. 33. Guzick v. Drebus, 431 F.2d 594 (6th Cir. 1970). 34. Roth v. United States, 354 U.S. 476, 77 S. Ct. 1304 (1957), reh’g denied, 355 U.S. 852, 78 S. Ct. 8 (1957). 35. William J. Brennan, Jr., quoted in Nat Hentoff, “Profiles: The Constitutionalist,” The New Yorker (March 12, 1990), pp. 45, 56. 36. Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S. Ct. 766 (1942); Beauharnais v. Illinois, 343 U.S. 250, 72 S. Ct. 725 (1952); Roth v. United States, op cit.; A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney General of Massachusetts, 383 U.S. 413, 86 S. Ct. 975 (1966); Miller v. California, 413 U.S. 15, 93 S. Ct. 2607 (1973). 37. Beauharnais v. Illinois, op. cit. 38. Ibid. 39. Roth v. United States, op. cit. 40. Ibid., 354 U.S. at 487 n. 20, 77 S. Ct. at 1310 n. 20.
457
41. Ibid. 42. W. Lockhart and R. McClure, “Censorship of Obscenity: The Developing Constitutional Standards,” 45 Minnesota Law Review, p. 5 (1960); W. Lockhart and R. McClure, “Obscenity Censorship: The Core Constitutional Issue—What Is Obscene?” 7 Utah Law Review, p. 289 (1961). 43. Jacobellis v. Ohio, 378 U.S. 184, 84 S. Ct. 1676 (1964). 44. Miller v. California, 413 U.S. 15, 93 S. Ct. 2607 (1973), reh’g denied, 414 U.S. 881, 94 S. Ct. 26 (1973). 45. Ibid. 46. Ibid. 47. Ibid. 48. Pope v. Illinois, 481 U.S. 497, 107 S. Ct. 1918 (1987), on remand, 162 Ill. App. 3d 299, 113 Dec. 547, 515 N.E.2d 356 (1987). 49. Hazelwood School District v. Kuhlmeier, 433 U.S. 299, 97 S. Ct. 2736 (1977). 50. Ibid. 51. Ibid. 52. Bethel School District No. 403 v. Fraser, 478 U.S. 675, 106 S. Ct. 3159 (1986). 53. Ibid. 54. Ibid. 55. 16B C.J.S. Constitutional Law § 824, June, 2007. 56. See: Brandenburg v. Ohio, 395 U.S. 444, 89 S. Ct. 1827 (1969). 57. Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S. Ct. 766 (1942). 58. In re Spivey, 345 N.C. 404, 480 S.E.2d 693 (1997). 59. Doe v. Pulaski County Special School District, 306 F.3d 616 (8th Cir. 2002). See: 1 Am.Jur.2d Abortion and Birth Control § 98 (2010). 60. Lovel v. Poway Unified School District, 90 F.3d 367 (9th Cir. 1996). 61. Ibid. 62. Ibid. 63. LaVine v. Blaine School District, 257 F.3d 981 (2000), cert den. 536 U.S. 959, 122 S.Ct. 2663 (2002). 64. Ibid. 65. Ibid. 66. Chandler v. McMinnville School District, 978 F.2d 524 (9th Cir. 1992). 67. Brandenburg v. Ohio, 395 U.S. 444, 89 S. Ct. 1827 (1969). 68. Ibid. 69. Hess v. Indiana, 414 U.S. 105, 94 S. Ct. 326 (1973). 70. Perry Education Association v. Perry Local Educators’ Association, 460 U.S. 37, 103 S. Ct. 948 (1983). 71. Ibid. 72. Nowak and Rotunda, op. cit., p. 1229. 73. Widmar v. Vincent, 454 U.S. 263, 102 S. Ct. 269 (1981). 74. Perry Education Association v. Perry Local Educators’ Association, op. cit. 75. Ibid. 76. Nowak and Rotunda, op. cit., p. 1231. 77. Ibid. 78. Burbridge v. Sampson, 74 F. Supp. 2d 940 (1999). 79. Ibid. 80. Perry Education Association v. Perry Local Educators’ Association, op. cit.
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Student Speech and Expression
81. R.A.V. v. St. Paul, 505 U.S. 377, 112 S. Ct. 2538 (1992). 82. Grayned v. City of Rockford, 408 U.S. 104, 92 S. Ct. 2294 (1972). 83. Ibid. 84. Ibid. 85. Edwards v. South Carolina, 372 U.S. 229, 83 S. Ct. 680 (1963). 86. New York Times Company v. United States, 403 U.S. 713, 91 S. Ct. 2140 (1971). 87. William Blackstone, Commentaries on the Laws of England, Book 4, ch. II (London: 1765–1769), p. 153. 88. Leonard W. Levy, Original Intent and the Framers’ Constitution (New York: Macmillan Publishing Co., 1988), p. 213. 89. People v. Croswell, 3 Johns. Cas. 337 (N.Y. Sup. Ct. 1804). 90. John Thompson, An Enquiry, Concerning the Liberty, and Licentiousness of the Press (New York: DeCapo Press, 1970). 91. New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710 (1964). 92. “Trial of William Cobbett,” Nov. 1797, in Francis Wharten, ed., State Trials of the United States during the Administration of Washington and Adams (Philadelphia, 1849), pp. 323–24. See also Levy, op. cit., p. 197. 93. New York Times Co. v. United States, op. cit. 94. Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S. Ct. 562 (1988), rev’g Kuhlmeier v. Hazelwood School District, 795 F.2d 1368 (8th Cir. 1986). 95. Ibid., 108 S. Ct. at 570. 96. Tinker v. Des Moines Independent School District, op. cit. 97. Leeb v. DeLong, 198 Cal. App. 3d 47, 243 Cal. Rptr. 494 (Cal. Ct. App. 1988). See Trachtman v. Anker, 563 F.2d 512 (2nd Cir. 1977), cert. denied, 435 U.S. 925, 98 S. Ct. 1491 (1978). 98. Baughman v. Freienmuth, 478 F.2d 1345 (4th Cir. 1973). 99. City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 756, 108 S. Ct. 2138, 2143 (1988). 100. Burch v. Barker, 861 F.2d 1149 (9th Cir. 1988). 101. Bystrom v. Fridley High School Independent School District No. 14, 822 F.2d 747 (8th Cir. 1987); see also Quarterman v. Byrd, 453 F.2d 54 (4th Cir. 1971). 102. Bethel School District No. 403 v. Fraser, 478 U.S. 675, 106 S. Ct. 3159 (1986). 103. Ibid., 478 U.S. at 683, 103 S. Ct. at 3164. 104. Hazelwood v. Kuhlmeier, op. cit. 105. Ibid. 106. Ibid., 108 S. Ct. at 569. 107. Burch v. Barker, 861 F.2d 1149 (9th Cir. 1988). 108. Ibid. at 1159. 109. Ibid. at 1154. 110. Berger v. Renssalaer Central School Corp., 982 F.2d 1160 (7th Cir. 1993). 111. Hazelwood, 484 U.S. at 260–61, 108 S. Ct. at 564. 112. Hedges v. Wauconda Community School District No. 118, 9 F.3d 1295 (7th Cir. 1993). 113. Reno v. American Civil Liberties Union, 521 U.S. 844, 117 S. Ct. 2329 (1997).
114. Tinker v. Des Moines, op. cit. 115. Bethel School District v. Fraser, op. cit. 116. Hazelwood School District v. Kuhlmeier, op. cit. 117. Morse v. Frederick, op. cit. 118. Jessica Moy, “Beyond ‘The Schoolhouse Gates’ and Into the Virtual Playground: Moderating Student Cyberbullying and Cyberharassment After Morse v. Frederick,” 37 Hastings Const., L.Q., 565 Spring, 2010. 119. Beussink v. Woodland R-IV School District, 30 F. Supp. 2d 1175 (E.D. Mo. 1998). 120. Tinker v. Des Moines Independent School District, op. cit. 121. Beussink v. Woodland R-IV School District, op. cit. 122. Tinker v. Des Moines Independent School District, op. cit. 123. Beussink v. Woodland R-IV School District, op. cit. 124. Requa v. Kent School District No. 415, 492 F. Supp. 2d 1272 (2007). 125. Bethel School District No. 403 v. Fraser, op. cit. 126. Ibid. 127. Wisniewski v. Board of Education of the Weedsport Central School District, 494 F.3d 34 (2nd Cir. 2007). 128. Doninger v. Niehoff, 527 F.3d 41 (2nd Cir. 2008). 129. Wisniewski, op. cit. 130. Doninger, op. cit. 131. Ibid. 132. Rita J. Verga, “Policing Their Space: The First Amendment Parameters of School Discipline of Student Cyberspeech,” Santa Clara Computer and High Tech Law Journal, Vol. 23, p. 727, 2007. 133. Pugsley v. Sellmeyer, 158 Ark. 247, 250 S.W. 538 (1923). 134. Mitchell v. McCall, 273 Ala. 604, 143 So.2d 629 (1962). 135. King v. Saddleback Junior College District, 445 F.2d 932 (9th Cir. 1971). 136. Jackson v. Dorrier, 424 F.2d 213 (6th Cir.), cert. denied, 400 U.S. 850, 91 S. Ct. 55 (1970). 137. Richards v. Thurston, 424 F.2d 1281 (1st Cir. 1970). See also Breen v. Kahl, 419 F.2d 1034 (7th Cir. 1969) (holding regulation unconstitutional). 138. Ferrell v. Dallas Independent School District, 392 F.2d 697 (5th Cir. 1968). 139. Stevenson v. Board of Education of Wheeler County, 426 F.2d 1154 (5th Cir. 1970). 140. Massie v. Henry, 455 F.2d 779 (4th Cir. 1972). See also Humphries v. Lincoln Parish School Board, 467 So.2d 870 (La. App. 1985); Domico v. Rapides Parish School Board, 675 F.2d 100 (5th Cir. 1982). 141. Thomas Hobbes, Man and Citizen, June 24, 1658, ed. Bernard Gert (Indianapolis, Ind.: Hackett Publishing Co., 1991), p. 114. 142. Guzick v. Drebus, op. cit. 143. See Jennifer Starr, “School Violence and Its Effect on the Constitutionality of Public School Uniform Policies,” Journal of Law and Education, 29, p. 113 (January 2000). 144. Phoenix Elementary School District No. 1 v. Green, 943 P.2d 836 (Ariz. Ct. App. 1997). 145. Tinker v. Des Moines Independent School District, op. cit.
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Quoted Box Citations 146. Byars v. City of Waterbury, 1999 WL 391033 (Conn. Super. June 4, 1999). 147. Belotti v. Baird, 443 U.S. 622, 99 S. Ct. 3035 (1979). 148. The Court relied on Bivens v. Albuquerque Public Schools, 899 F. Supp. 556 (D.N.M. 1995). 149. United States v. O’Brien, 391 U.S. 367, 88 S. Ct. 1673 (1968). 150. Byars v. City of Waterbury, op. cit. 151. Phoenix Elementary School District No. 1 v. Green, op. cit. 152. See Joseph R. McKinney, “A New Look at Student Uniform Policies,” 140 Ed. Law Rep. 791 (March 2000).
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Quoted Box Citations
Erwin Chemerinsky, Constitutional Law: Principles and Policies (New York: Aspen Law & Business, 2002), pp. 896–900. Morse v. Frederick, 551 U.S. 393, 127 S.Ct. 2618. Student Personal Appearance, McQuillen, The Law of Municipal Corporations (3rd ed.) 16B § 46.22.20 (2010).
Copyright 2010 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.
CHAPTER 9
Search and Seizure Every subject has a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all of his possessions. —John Adams, Article 14, Massachusetts Constitution, 1780
CHAPTER OUTLINE ■
INTRODUCTION
Special Needs and Suspicionless Searches
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EXCLUSIONARY RULE
Canine Searches
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PUBLIC SCHOOL SEARCHES
Metal Detector Searches
Reasonable Suspicion
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Liability for Illegal Searches
T. L. O. and Reasonableness
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SUMMATION OF CASE LAW
Strip Searches
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RESEARCH AIDS
Introduction
The right of privacy against unreasonable searches and seizures is ensured by the Fourth Amendment of the Bill of Rights (see Chapter 3 and Appendix). The Fourth Amendment of the U.S. Constitution provides, in part: “The right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated, and no warrants shall issue, but upon probable cause. . . .” The Fourth Amendment seeks to prevent criminal prosecution of individuals by providing to government their own private information against themselves. The Supreme Court has held that the Fourth Amendment’s prohibition of illegal “searches and seizures” by the federal government was applicable to state government officials through the Due Process Clause of the Fourteenth
Amendment.1 In Mapp v. Ohio, perhaps the most important case on search and seizure yet rendered, the Supreme Court reasoned that: Since the Fourth Amendment’s right of privacy has been declared enforceable against the States through the Due Process Clause of the Fourteenth, it is enforceable against them by the same sanction of exclusion as is used against the Federal Government.2
As this quote indicates, the Fourth Amendment, in concert with the Fourteenth Amendment, prohibits both federal and state government officials from obtaining evidence for prosecution of individuals by searches that are not authorized by properly specified warrants. If evidence is illegally obtained, then it must be “excluded” from the evidence against the accused in a criminal prosecution.3 The Fourth Amendment explicitly
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Public School Searches
provides the requirements for a search warrant; it states, in part: [N]o warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.4
In order to be valid, a search warrant must have three essential elements:5 (1) A statement of facts showing probable cause that a crime has been committed. (2) Specification of the place to be searched. (3) A description of the articles sought. Exceptions to the requirement of a search warrant are generally these:6 (1) Consent is given for the search by a person who is qualified to give consent. (2) The search is incidental to lawful arrest. A search cannot be instituted to obtain evidence to justify an arrest without a search warrant. (3) A warrant is not required if the government agents have probable cause to believe that a felony has been committed in the premises. (4) The search is necessary to safeguard a law enforcement officer during an arrest, or to protect evidence likely to be destroyed. Proof of consent requires that the prosecution show by preponderance of the evidence that consent was knowingly, intelligently, and voluntarily given to the police.7 Factors that may be considered by the courts as to whether a police search is legal are the characteristics of the persons giving the consent, such as education level, experience, knowledge of the right to withhold consent, and evidence that there was no coercion by the police.8 A consensual search is, thus, not proscribed by the Fourth Amendment if the consent is given without coercion.9 Exceptions also include what is known in law as the emergency aid doctrine, or “exigent circumstances,”10 such as medical emergency, “hot pursuit” of one suspected of a crime, welfare of children, possible homicide, suicide, gun shots, domestic abuse, missing children, fire, explosions, and noxious fumes. Some courts have found other exceptions such as “reports” of drug overdose or poisoning, shootings, stabbings, domestic abuse complaints, child abuse, children left unattended, missing persons, or child runways.11
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Exclusionary Rule
Exclusion of illegally obtained evidence is thought necessary by the courts for its deterrent effect on police in disregarding the Constitution. The Supreme Court emphasized in Elkins v. United States12 the importance of deterrence. It said: The rule is calculated to prevent, not to repair. Its purpose is to deter—to compel respect for the constitutional guaranty in the only effectively available way—by removing the incentive to disregard it.13
The decision in Elkins with regard to the “exclusionary rule” was quoted with approval in Mapp v. Ohio, wherein the Court observed that the “exclusionary rule” served as a “deterrent safeguard without insistence upon which the Fourth Amendment would have been reduced to ‘a form of words.’ ”14 The “exclusionary rule” has also been justified on the grounds that (1) the courts must have integrity in their rulings; they should not be accomplices in the willful disobedience of a Constitution that they are sworn to uphold,15 and (2) the courts should assure “the people— all potential victims of unlawful government conduct—that the government would not profit from its lawless behavior, thus minimizing the risk of seriously undermining popular trust in government.”16
GOVERNMENT SEARCH AND SEIZURE Fourth Amendment
Police Probable Cause Warrant
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School Officials Reasonable Suspicion No Warrant
Public School Searches
To search or not to search a pupil’s desk, locker, pockets, purse, book bag, coat, shoes and socks, and automobile is a question frequently confronting school administrators. Oftentimes, the issue must be decided forthwith because the gravity of the situation—bomb threats,
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dangerous weapons, illegal drugs—could result in serious injury to school pupils.17 The legality of search and seizure in the public schools balances primarily on whether the court views the school teacher or administrator as a parent or a police officer. To assume that the school administrator or teacher represents the state and seeks to obtain seized goods for purposes of criminal prosecution would require a warrant. A majority of the student searchand-seizure cases are initiated during criminal proceedings by students who are seeking suppression of evidence obtained through a search at school. The students are concerned that the contraband will be used against them in the criminal proceedings, but they do not appear concerned as to whether the items will be used for school administrative procedures, such as suspension or expulsion. The Fourth Amendment has five important components. First, it enunciates and protects the right of people “to be secure in their persons, houses, papers and effects.” Second, it protects persons from unreasonable searches and seizures. Third, it ensures that a search cannot be instituted without government showing probable cause, or giving evidence that a search is necessary. Fourth, it ensures that the search must be specific, describing the place to be searched and the articles to be seized. Last, it ensures that a magistrate or judge is interposed between the individual and the government, requiring that the government justify with evidence the necessity of the search. The application of three of these five components is easily made to student searches in public schools. Students have a right of privacy— to be secure in their persons, papers, and effects—and this right protects them against unreasonable searches and seizures. Moreover, any search must be specific as to what is sought in the search and the location where it is secreted. The courts do not, however, require that school officials be able to provide evidence constituting probable cause or that they obtain a warrant from a judge justifying a search.
REASONABLE SUSPICION School officials need have only “reasonable suspicion,” a standard of proof less rigorous than
the requirement of “probable cause, in order to conduct a legal search.” Suspicion itself implies a belief or opinion based upon facts or circumstances that do not amount to proof. 18 Until James Madison composed the Fourth Amendment, the terms reasonable suspicion, reason to suspect, sufficient foundation, and probable cause had been used more or less interchangeably. Virginia’s recommendation for amendments to the proposed constitution, in 1788, used the words legal and sufficient cause for issuance of warrants.19 “Probable cause,” as used by Madison in the Fourth Amendment, “required more than mere suspicion or even reasonable suspicion.”20 Although the standard of “reasonable suspicion” is a lower standard than that of “probable cause” (required for police to obtain a warrant), it is not so unrestrictive as to place no restraint on school personnel. A New York court held that school personnel conducting a strip search of fifth-grade students after classroom thefts violated the children’s Fourth Amendment rights because there was no rationale that allowed school officials to particularize as to which student might have actually taken the money. 21 The court maintained that there must be some available facts that together provide reasonable grounds to search, and the search must be conducted in order to further a legitimate school purpose, such as the maintenance of discipline in the school. A student’s freedom from unreasonable search and seizure must be balanced against the school officials’ need to maintain order and discipline and to protect the health and welfare of all the students. Where an assistant principal threatened to call a student’s parents, forcing the student to reluctantly, but voluntarily, empty his pockets, producing a pipe and marijuana, the court held that such a search was legitimate. Where the scope of intrusion is slight and there is no police involvement, school officials are held only to a “reasonable cause to believe” standard.22
T. L. O. AND REASONABLENESS The Supreme Court has set forth two conditions for public school searches: (1) reasonably specific suspicion, and (2) random searches based on “special needs” (drugs). The Supreme Court in New
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Public School Searches
463
TWO TYPES OF SCHOOL SEARCHES Public School Searches
Reasonable Suspicion (Specific)
T.L.O. case
Redding case
Jersey v. T.L.O., 23 established the prevailing precedent regarding school searches and seizures. The Court in this case held that the Fourth Amendment does apply to schools and that in order for searches to be constitutionally valid, reasonableness must prevail. The Court stated that “the legality of a search of a student should depend on the reasonableness, under all circumstances, of the search.” According to the Court in T L.O., the constitutional validity of a search is to be determined at two levels. The first level involves consideration of whether the search is initially justified at its inception. The inception of the search is the point at which reasonable suspicion comes into play. Was the motivation for the search reasonable in light of the information obtained by the school official? The second level concerns the reasonableness of the search itself; the “measures adopted for the search must be reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.”24 A search is not reasonable if it lacks specificity or if it excessively intrudes on the student’s privacy.
THE STANDARD OF REASONABLE SUSPICION In T. L. O., we recognized that the school setting ‘requires some modification of the level of suspicion of illicit activity needed to justify a search,’ and held that for searches by school officials ‘a careful
Special Needs (Random)
Acton case
Earls case
balancing of governmental and private interests suggests that the public interest is best served by a Fourth Amendment standard of reasonableness that stops short of ‘probable cause.’ We have thus applied a standard of reasonable suspicion. . . . —Safford Unified School District v. Redding, 2009
Inception of Search. The facts leading to the initiation of the search must indicate the suspicion was reasonable. In a case where a student was observed in an office where items had been stolen and was also found to have unauthorized objects concealed in his clothing, the court concluded that reasonable suspicion was established for a search of the student’s locker.25 In another case, reasonable suspicion was established where a school administrator had previously heard reports that a student was involved in drugs. A subsequent search of the student’s locker and car revealed drugs and therefore was found reasonable and constitutional.26 In another drug case, a student’s car was searched, revealing cocaine, after the assistant principal observed that the student had glassy eyes, a flushed face, and slurred speech; smelled of alcohol; and walked with an unsteady gait. The court found that this was ample evidence to support reasonable suspicion.27 Intrusiveness of Search. Whether a search is reasonable is a subjective determination, and the
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courts determine the standard on the individual facts of each case. It is clear, though, that excessively intrusive searches must be supported by a strong degree of suspicion by the school officials. The courts will require a corresponding relationship between the extensiveness of grounds supporting reasonable suspicion and the degree to which a search intrudes on a student’s privacy. Where money was missing from a schoolroom and a teacher searched the books of two students and then required them to remove their shoes, the Court found that the fact that the two students had been alone in the room where the stolen money disappeared was sufficient to support reasonable suspicion to conduct a limited search.28
EXCESSIVE INTRUSIVENESS OF SEARCH A search ordered by a school official, even if ‘justified at its inception,’ crosses the constitutional boundary if it becomes ‘excessively intrusive in light of the age and sex of the student and the nature of the infraction.’ —Justice Stevens: Redding, concurring opinion
A more extensive and intrusive search, however, may require more evidence to establish reasonable suspicion. In a case where an assistant principal spied a boy carrying a small calculator case with an odd bulge, the principal searched the case and found marijuana. The court held that merely noticing a bulge was not sufficient to establish reasonable suspicion and pointed out that reasonable suspicion must be established by a clear articulation of facts, with rational inferences drawn from those facts, in order to warrant the conclusion of reasonable suspicion. This court noted that without having prior knowledge of the student’s involvement in drug use, the mere observation of the calculator case was insufficient to establish a reason to suspect something illegal was hidden in the case.29 Where a girl was forced to remove her jeans and submit to visual inspection of her brassiere, the court held that the fact that she had ducked behind a car and had given a school security
guard a false name was insufficient to establish reasonable suspicion. The court noted that without further specific information, the school had no more reason to believe that the girl was hiding drugs than to believe that she was skipping class, stealing hubcaps, or doing anything else, legal or illegal.30 The key to a search based on reasonable suspicion is the balance and relationship between the school’s interest in protecting all of the students and the intrusiveness of the search. The Supreme Court has fully expanded on this in Safford Unified School District v. Redding,31 2009, explained later in this chapter. Context of Search. Further, the courts have held that “what is reasonable depends on the context within which the search takes place.”32 A context indicating a loosely articulated factual background that is not necessarily related to a specific violation is too nebulous to support “reasonable suspicion.” The lack of specificity in a wide search of large groups of students without specific knowledge of rule violations by any particular student is not reasonable.33 Some individualized suspicion is essential as a prerequisite to a constitutional search. One court has cautioned that even though general searches are easier and may be more effective in finding illegal contraband, such searches will not survive the reasonableness test without individualized suspicion unless other safeguards are available to ensure respect for individual privacy.34
STRIP SEARCHES It goes without saying that strip searches of students by school districts are highly invasive. The U.S. Supreme Court in the case of Safford Unified School District v. Redding,35 2009, addressed the matter of what constitutes permissible reasonable suspicion to justify a strip search of a student by school officials. The Court in Redding applied the reasonable suspicion standard of T. L. O., that says, “a school search will be permissible . . . when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.”36 The Court found in Redding that the school officials had reasonable suspicion, sufficient to justify searching the student’s
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Public School Searches
backpack and outer clothing, but the weight of the reasonable suspicion did not warrant extending the search to the highly invasive degree of making the student pull out her underwear exposing her breasts and pelvic area. The school’s interest in finding the particular drugs that presented no danger to other students was not sufficient to overcome the privacy interest of the student and the embarrassment, fright, indignity, and humiliation of the search. Justice Stevens, in a concurring opinion, pointed out that Redding did not alter the basic framework of T. L. O. He said that the case “simply applies T. L. O. to declare unconstitutional a strip search . . . that was based on groundless suspicion.”37 In disagreeing with the majority opinion regarding whether the school officials should be subject to personal liability for their invasion of the student’s privacy rights, Justice Stevens said that this was a case of clearly established law which forbids such clearly outrageous conduct by school officials; “[i]t does not require a constitutional scholar to conclude that a nude search of a 13-year-old child is an invasion of constitutional rights of some magnitude.”38 In the final analysis of Redding, and for strip search cases in general, the Court has placed definitive limits on school official’s prerogatives. Strip searches are placed in a special category of intrusiveness; the Court concluded that the reasonableness of a search takes a “quantum leap from outer clothes and backpacks to exposure of intimate parts.” Strip searches demand their own “specific suspicions.”39
SPECIAL NEEDS AND SUSPICIONLESS SEARCHES A decade after T. L. O., the U.S. Supreme Court took a major step in expanding the power of the school to search students. In Vernonia School District 47J v. Acton,40 and later in Board of Education v. Earls,41 the Court interpreted the Fourth Amendment term unreasonable to permit school teachers and administrators to conduct suspicionless, random searches of students in certain circumstances without reasonably specific suspicion. Ten years before, the Court in T. L. O. went into great detail in making it clear that students in public schools have an expectation of privacy, and that school officials are required by the Fourth Amendment to have reasonably
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specific suspicion at the inception of a search. It appeared that T. L. O. foreclosed the possibility of the school conducting random, suspicionless searches under any circumstances. Later, in Acton, the Supreme Court considered the extenuating circumstances of drugs and safety in schools, and the T. L. O. standard that the schools have a reasonably specific suspicion at the inception of the search was modified. In Acton, the school district had a policy that required students who wished to participate in extracurricular sports programs to sign a form consenting to random urinalyses to search for drug use among school athletes. The Court upheld the policy, reasoning first that in the school environment, “special needs” may exist to conduct random searches. Such “special needs” may be determined to exist by school administrators when there is a concern that something harmful to students may be secreted in the school. Second, the Court distinguished the situation in Acton from that in T. L. O., finding that students in sports programs assume a lower expectation of privacy than students who don’t volunteer for such programs. In T. L. O., the search was of a student’s purse, in which one would normally believe that there is a higher expectation of privacy. In Acton, the Court pointed out that in interscholastic athletics, student athletes assume a lesser degree of privacy, as they “suit up” in uniforms and dress, undress, and shower together. Such conditions therefore implicitly reduce the individual’s expectation of privacy. Third, the Court found that the character of the intrusion, collecting samples for urinalysis, followed procedures that were reasonable and not overly intrusive: the evidence indicated that the samples were taken by the students themselves in the privacy of enclosed stalls, where invasion of privacy interests were negligible. Following this rationale and the facts presented, the Supreme Court concluded: Taking into account all the factors we have considered above—the decreased expectation of privacy, the relative unobtrusiveness of the search, and the severity of the need met by the search—we conclude that Vernonia’s policy is reasonable and hence constitutional.42
The reasoning of Acton was followed in 2002, in Board of Education of Independent School District
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No. 92 of Pottawatomie County v. Earls,43 wherein the suspicionless drug testing of students was also upheld. The facts in this case were similar to those in Acton; a urinalysis was required by school policy, and the method of collecting the urine samples was equally unobtrusive. The principal difference was that the urinalysis search policy was imposed on students in all extracurricular activities, not just sports programs. The two student plaintiffs were not athletes, but rather members of the show choir, marching band, and the academic team. In expanding the school’s authority to conduct random, suspicionless searches, the Court, with Justice Thomas writing, followed Acton almost verbatim, saying first that schools fall into the “special needs” category of activities that are extended special search latitude; second, students in all extracurricular programs, like those in sports programs, implicitly have a lower expectation of privacy; and third, the method of search in obtaining urine samples was discrete and minimally intrusive on the students’ privacy. Further, the Court elaborated that the designation of “special needs” does not require that the school district show a particularized or pervasive drug problem in order to conduct suspicionless drug testing. Safety to students is the controlling factor for “athletes and nonathletes alike.”44 Thus, the combination of factors hinge on the following: “special needs” of the school environment for the safety of children, the reduced expectation of privacy, and procedures that are minimally intrusive combine to give schools more extensive search and seizure powers over students than T. L. O. and earlier decisions would have appeared to suggest. Guidelines for a Reasonable Suspicion Search. These precedents therefore suggest that even though school officials must adhere to the lesser standards of “reasonable suspicion” rather than “probable cause,” the courts will nevertheless be vigilant in scrutinizing the conditions attendant to school searches. Certain conclusions can be drawn that provide guidelines governing “reasonable suspicion,” non–special needs searches: 1. Students have a right to privacy in their persons, papers, and effects.
2. In determining whether a search is reasonable, the courts will consider the magnitude of the offense and extent of the intrusiveness on the student’s privacy. 3. To establish reasonable suspicion justifying the inception of a search requires that the school official have some evidence regarding the particular situation, including possibly the background of the student, which would lead to the conclusion that something is hidden in violation of school rules. 4. A search must be supported by specificity as to the offense and by a particularized knowledge as to where the illegal contraband is located as well as to the identity of the offending student. This guideline is taken from the Fourth Amendment, which states that issuance of a warrant is dependent on particularity: “describing the place to be searched, and the persons or things to be seized.”45 5. Strip searches require their own intensified “specific suspicions.”
CANINE SEARCHES Canine searches of “things” such as automobiles or lockers are less intrusive than searches of “persons,” which are much more intrusive.46 It should be noted that most canine search cases predate the U.S. Supreme Court T.L.O. case. Using the standards in T.L.O., it appears that individual suspicion or a very high risk to the health and safety of the student body would be required to justify a canine search. Even before T.L.O., the courts viewed the canine search cases from differing legal perspectives, with mixed results, as to what the Constitution required. The Tenth Circuit Court of Appeals in Zamora v. Pomeroy47 upheld the use of dogs in the exploratory sniffing of lockers. The Court noted that since the schools gave notice at the beginning of the year that the lockers might be periodically opened, the lockers were jointly possessed by student and school. The Court further stated that since the school officials have a duty to maintain a proper educational environment, it is necessary for them to inspect lockers and, even though there might be a slight Fourth Amendment infringement, it was not significant. The Seventh Circuit in Doe v. Renfrow48 held that school officials stand in loco parentis and
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Public School Searches
have a right to use dogs to seek out drugs, especially because of the diminished expectations of privacy inherent in the public schools. School officials have a duty to maintain an educational environment that is conducive to learning. The Court so ruled in spite of the fact that in Doe, the dogs sniffed up and down the aisles between desks in junior and senior high school classrooms. In the federal district court case of Jones v. Latexo Independent School District,49 the decision was different from those in Renfrow and Zamora. The school district in Jones used dogs to sniff both students and automobiles. The Court ruled that, in the absence of individual suspicion, the sniffing of the students is too intrusive and not reasonable. Because the students did not have access to their automobiles during the school day, the school’s interest in sniffing the cars was minimal, and therefore also unreasonable. In Horton v. Goose Creek Independent School District, 50 the Court stated, “The problem presented in this case is convergence of two troubling questions. First, is the sniff of a drugdetecting dog a ‘search’ within the purview of the Fourth Amendment? Second, to what extent does the Fourth Amendment protect students against searches by school administrators seeking to maintain a safe environment conducive to education?”51 In response to the first question, the court stated, “We accordingly hold that the sniff of the lockers and cars did not constitute a search and, therefore, we need make no inquiry into the reasonableness of the sniffing of the lockers and automobiles.”52 Concerning the second question, the Court ruled that school officials may search students if they have “reasonable cause,” but “the intrusion on dignity and personal security that goes with the type of canine inspection of the student’s person involved in this case cannot be justified by the need to prevent abuse of drugs and alcohol when there is no individualized suspicion; and we hold it unconstitutional.”53 Logically, utilizing constitutionally questionable and educationally ludicrous means to justify the search of a student on the suspicion created by a dog is on its face suspect. Neither reasonable suspicion nor probable cause should be established based merely on the veracity of a dog’s identification. Dogs make poor witnesses.
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In attempting to summarize the dog-sniffing cases, one can reasonably conclude that dog sniffing of students is highly intrusive and requires adherence to T. L. O. and Redding standards and cannot be used by school officials in concert with the police in utilizing “reasonable suspicion” to create “probable cause.” Thus, random and suspicionless searches using dogs should not be assumed to provide a defensible constitutional basis for the specificity required for reasonable suspicion.
METAL DETECTOR SEARCHES In order to provide for an appropriate and safe educational environment, some schools have been forced to use metal detectors to discover knives, guns, and other weapons. When a weapon is detected, the student possessing the weapon may be arrested, and subsequent legal action by the student usually involves search-and-seizure constraints of the Fourth Amendment. Several cases have been reported concerning the constitutionality of metal detector screening in the public schools. Each case has upheld the constitutionality of random metal detector searches based on the reasonable rationale that such is necessary for a safe school environment. A case in point involved the metal detector search of a student in a Philadelphia school who was found to be carrying a folding knife.54 After being arrested, he filed a motion to have the seized evidence suppressed, claiming the search was unreasonable in that there existed no reasonable individual suspicion at the inception of the search. In applying the reasonableness factors of the T. L. O. case, the court found the search was justified at the inception due to the high rate of violence in the Philadelphia schools. Moreover, the search was considered to be reasonable and constitutional because there was no way of knowing whether a student had a weapon prior to entering the building. In a similar case,55 metal detector screening was conducted in a Chicago high school when the Chicago Police Department thought it was needed. In one such search, a student was found to have a loaded .38-caliber handgun in his pants, and he was arrested. The court upheld the validity of the search and said, “we find . . . the screening satisfied the Fourth Amendment reasonableness test established in
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T. L. O.: The action was justified at its inception by the reality of violence in the schools; the search as conducted was reasonably related in scope to the circumstances which justified the interference in the first place.”56 In another case, the New York City Board of Education established guidelines for the use of metal detectors in a high school that required a team of special police officers from a central task force. In implementing these guidelines, police officers set up a scanning post in a school’s main lobby. All students entering the school were subject to the search, and the officers could choose to limit the search by any random formula if the waiting lines became too long. In the process of the search, a student was found to be carrying a switchblade knife. She was charged with criminal possession of a weapon, a Class A misdemeanor; the student filed an action to suppress the evidence. The court held that an administrative search is reasonable when the intrusion involved in the search is no greater than necessary to satisfy the governmental interest underlying the need for the search. In other words, in determining whether a search is reasonable, the courts balance the degree of intrusion, including the discretion given to the person conducting the search, against the severity of the damages posed. In this case, the court found the metal detector search satisfied the balancing test and was not unreasonable because the school had a compelling need for security.57 Thus, as in other areas of the law, a balancing test of reasonableness will be the primary determinant of the constitutionality validity of such searches. Avoidance of a metal detector may create reasonable suspicion. A Massachusetts court upheld in 2008 a search of a student where the student had avoided a metal detector upon entering the school and had failed to drop his belongings at the headmaster’s office as previously arranged to be the procedure. The court ruled that a search of the student was justified at its inception and was reasonable. 58 A New York court has summed up the metal detector issue rather concisely. The intrusion involved in the metal detector administrative search of students entering a school is reasonable, despite the absence of a consent provision,
because the government’s interest in the safety of the students and the preservation of an atmosphere conducive to education are of vital importance in a balancing of interests.59
LIABILITY FOR ILLEGAL SEARCHES One may wonder what the consequences are of illegal searches of students by teachers or school administrators. What redress is available for the student? If a search is conducted by school officials, the contraband may or may not be excluded from the prosecution’s evidence presented in the court where the criminal trial of the student ensues. Beyond this, the student may conceivably bring an action for damages under Section 1983 of Title 42 of the U.S. Code. A student can seek such damages if school officials or school agents maliciously deny the student’s constitutional rights. The U.S. Court of Appeals for the Sixth Circuit, in Williams ex rel. Williams v. Ellington60, noted that government officials performing discretionary functions generally have qualified immunity that shields them from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights that a reasonable person would have known about. It is important to observe that if school officials deny a student his or her constitutional rights but do so in the good-faith fulfillment of school responsibilities and not in ignorance of and disregard for established indisputable principles of law, no liability will occur. This qualified immunity is accorded to school teachers and administrators only within the bounds of reason. When school officials, in Doe v. Renfrow61, stripsearched a child “without any individualized suspicion and without reasonable cause,” the court said, “We suggest as strongly as possible that the conduct herein described exceeded the ‘bounds of reason’ by two and a half country miles. It is not enough for us to declare that the little girl involved was indeed deprived of her constitutional and basic human rights. We must also permit her to seek damages from those who caused this humiliation. . . .” The qualified immunity of school personnel does not protect school agents against liability if their actions are excessively intrusive of students’ privacy. In a 2010 decision, the U.S.
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Public School Searches
Court of Appeals, Sixth Circuit, in Knisley v. Pike County Joint Vocational District62 held that a strip search of an entire high school nursing class for the purpose of finding a credit card, and some other items, was unreasonable and the school officials were not entitled to a qualified immunity against liability. The defendants argued that they were entitled to the qualified privilege because the law of the matter of strip searches was not sufficiently clear at the time of the search. The federal circuit court disagreed and pointed out that the law in the Sixth Circuit had been quite clear since the strip search issue had been decided by that same court in 2005 in the case of Beard v. Whitmore Lake School District.63 The Beard case involved a strip search of an entire class undertaken to find stolen money. In a 2001 case, where a police officer, who was an agent of the school, conducted a blanket search of 30 elementary schoolchildren, an entire gym class, in an effort to find missing money, a federal district court held that the officer did not have a qualified immunity protection against Section 1983 liability.64 The officer had the students remove their shirts and/or lower their pants for a visual inspection or an underwear waistband search. The court applied T. L. O. standards to the situation and concluded first that there was no individualized suspicion of the students who were searched. The court refused to accept the officer’s contention that the search was justified at its inception because it was an individualized “group” search. According to the court, a “group” search cannot be justified under T. L. O. standards as “individualized.” 65 Secondly, the court found that the officer’s “level of intrusion was not justified by the search, namely money.”66 The lack of relationship between the intrusiveness and the object of the search evidenced unreasonableness. The court granted that the officer was an agent of the school, not a police officer of local government, and was thereby not required to obtain a search warrant, but rather was subject to the reasonable suspicion standard of T. L. O. However, any qualified immunity that the officer may have had as an agent of the school was outweighed by the unreasonableness and intrusiveness of the search, and the officer was therefore subject to Section 1983 of the Civil Rights Act.
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Search of Students by School Officials Is Constitutionally Permissible If Reasonable and Not Excessively Intrusive
New Jersey v. T. L. O. Supreme Court of the United States, 1985. 469 U.S. 325, 105 S. Ct. 733.
JUSTICE WHITE delivered the opinion of the Court. We granted certiorari in this case to examine the appropriateness of the exclusionary rule as a remedy for searches carried out in violation of the Fourth Amendment by public school authorities. Our consideration of the proper application of the Fourth Amendment to the public schools, however, has led us to conclude that the search that gave rise to the case now before us did not violate the Fourth Amendment. Accordingly, we here address only the questions of the proper standard for assessing the legality of searches conducted by public school officials and the application of that standard to the facts of this case. On March 7, 1980, a teacher at Piscataway High School in Middlesex County, N.J., discovered two girls smoking in a lavatory. One of the two girls was the respondent T. L. O., who at that time was a 14-year-old high school freshman. Because smoking in the lavatory was a violation of a school rule, the teacher took the two girls to the Principal’s office, where they met with Assistant Vice Principal Theodore Choplick. In response to questioning by Mr. Choplick, T. L. O.’s companion admitted that she had violated the rule. T. L. O., however, denied that she had been smoking in the lavatory and claimed that she did not smoke at all. Mr. Choplick asked T. L. O. to come into his private office and demanded to see her purse. Opening the purse, he found a pack of cigarettes, which he removed from the purse and held before T. L. O. as he accused her of having lied to him. As he reached into the purse for the cigarettes, Mr. Choplick also noticed a package of cigarette rolling papers. In his experience,
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possession of rolling papers by high school students was closely associated with the use of marijuana. Suspecting that a closer examination of the purse might yield further evidence of drug use, Mr. Choplick proceeded to search the purse thoroughly. The search revealed a small amount of marijuana, a pipe, a number of empty plastic bags, a substantial quantity of money in one-dollar bills, an index card that appeared to be a list of students who owed T. L. O. money, and two letters that implicated T. L. O. in marijuana dealing. Mr. Choplick notified T. L. O.’s mother and the police, and turned the evidence of drug dealing over to the police. At the request of the police, T. L. O.’s mother took her daughter to police headquarters, where T. L. O. confessed that she had been selling marijuana at the high school. On the basis of the confession and the evidence seized by Mr. Choplick, the State brought delinquency charges against T. L. O. in the Juvenile and Domestic Relations Court of Middlesex County. Contending that Mr. Choplick’s search of her purse violated the Fourth Amendment, T. L. O. moved to suppress the evidence found in her purse as well as her confession, which, she argued, was tainted by the allegedly unlawful search. . . . The New Jersey Supreme Court agreed with the lower courts that the Fourth Amendment applies to searches conducted by school officials. The court also rejected the State of New Jersey’s argument that the exclusionary rule should not be employed to prevent the use in juvenile proceedings of evidence unlawfully seized by school officials. Declining to consider whether applying the rule to the fruits of searches by school officials would have any deterrent value, the court held simply that the precedents of this Court establish that “if an official search violates constitutional rights, the evidence is not admissible in criminal proceedings.” . . . . . . In determining whether the search at issue in this case violated the Fourth Amendment, we are faced initially with the question whether that Amendment’s prohibition on unreasonable searches and seizures applies to searches conducted by public school officials. We hold that it does. It is now beyond dispute that “the Federal Constitution, by virtue of the Fourteenth Amendment, prohibits unreasonable searches and seizures by state officers.” Equally indisputable is
the proposition that the Fourteenth Amendment protects the rights of students against encroachment by public school officials: The Fourteenth Amendment, as now applied to the States, protects the citizen against the State itself and all of its creatures—Boards of Education not excepted. These have, of course, delicate, and highly discretionary functions, but none that they may not perform within the limits of the Bill of Rights. That they are educating the young for citizenship is reason for scrupulous protection of constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes. West Virginia State Bd. of Ed. v. Barnette, 319 U.S. 624, 637, 63 S. Ct. 1178, 1185, 87 L. Ed. 1628 (1943).
It may well be true that the evil toward which the Fourth Amendment was primarily directed was the resurrection of the pre-Revolutionary practice of using general warrants or “writs of assistance” to authorize searches for contraband by officers of the Crown. But this Court has never limited the Amendment’s prohibition on unreasonable searches and seizures to operations conducted by the police. Rather, the Court has long spoken of the Fourth Amendment’s strictures as restraints imposed upon “governmental action”—that is, “upon the activities of sovereign authority.” . . . Notwithstanding the general applicability of the Fourth Amendment to the activities of civil authorities, a few courts have concluded that school officials are exempt from the dictates of the Fourth Amendment by virtue of the special nature of their authority over schoolchildren. Teachers and school administrators, it is said, act in loco parentis in their dealings with students: their authority is that of the parent, not the State, and is therefore not subject to the limits of the Fourth Amendment. Such reasoning is in tension with contemporary reality and the teachings of this Court. We have held school officials subject to the commands of the First Amendment, . . . and the Due Process Clause of the Fourteenth Amendment. . . . If school authorities are state actors for purposes of the constitutional guarantees of freedom of expression and due process, it is difficult to understand why they should be deemed to be exercising parental rather than public authority when conducting searches of their students. More generally, the Court has
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Public School Searches
recognized that “the concept of parental delegation” as a source of school authority is not entirely “consonant with compulsory education laws.” Today’s public school officials do not merely exercise authority voluntarily conferred on them by individual parents; rather, they act in furtherance of publicly mandated educational and disciplinary policies. . . . In carrying out searches and other disciplinary functions pursuant to such policies, school officials act as representatives of the State, not merely as surrogates for the parents, and they cannot claim the parents’ immunity from the strictures of the Fourth Amendment. To hold that the Fourth Amendment applies to searches conducted by school authorities is only to begin the inquiry into the standards governing such searches. Although the underlying command of the Fourth Amendment is always that searches and seizures be reasonable, what is reasonable depends on the context within which a search takes place. The determination of the standard of reasonableness governing any specific class of searches requires “balancing the need to search against the invasion which the search entails.” On one side of the balance are arrayed the individual’s legitimate expectations of privacy and personal security; on the other, the government’s need for effective methods to deal with breaches of public order. . . . The State of New Jersey has argued that because of the pervasive supervision to which children in the schools are necessarily subject, a child has virtually no legitimate expectation of privacy in articles of personal property “unnecessarily” carried into a school. This argument has two factual premises: (1) the fundamental incompatibility of expectations of privacy with the maintenance of a sound educational environment; and (2) the minimal interest of the child in bringing any items of personal property into the school. Both premises are severely flawed. Although this Court may take notice of the difficulty of maintaining discipline in the public schools today, the situation is not so dire that students in the schools may claim no legitimate expectations of privacy. We have recently recognized that the need to maintain order in a prison is such that prisoners retain no legitimate expectations of privacy in their cells, but it goes almost without saying that “[t]he prisoner and the schoolchild stand in wholly different circumstances,
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separated by the harsh fact of criminal conviction and incarceration.” We are not yet ready to hold that the schools and the prisons need be equated for purposes of the Fourth Amendment. Nor does the State’s suggestion that children have no legitimate need to bring personal property into the schools seem well anchored in reality. Students at a minimum must bring to school not only the supplies needed for their studies, but also keys, money, and the necessaries of personal hygiene and grooming. In addition, students may carry on their persons or in purses or wallets such non-disruptive yet highly personal items as photographs, letters, and diaries. Finally, students may have perfectly legitimate reasons to carry with them articles of property needed in connection with extracurricular or recreational activities. In short, schoolchildren may find it necessary to carry with them a variety of legitimate, non-contraband items, and there is no reason to conclude that they have necessarily waived all rights to privacy in such items merely by bringing them onto school grounds. Against the child’s interest in privacy must be set the substantial interest of teachers and administrators in maintaining discipline in the classroom and on school grounds. Maintaining order in the classroom has never been easy, but in recent years, school disorder has often taken particularly ugly forms: drug use and violent crime in the schools have become major social problems. . . . Accordingly, we have recognized that maintaining security and order in the schools requires a certain degree of flexibility in school disciplinary procedures, and we have respected the value of preserving the informality of the student–teacher relationship. How, then, should we strike the balance between the schoolchild’s legitimate expectations of privacy and the school’s equally legitimate need to maintain an environment in which learning can take place? It is evident that the school setting requires some easing of the restrictions to which searches by public authorities are ordinarily subject. The warrant requirement, in particular, is unsuited to the school environment: requiring a teacher to obtain a warrant before searching a child suspected of an infraction of school rules (or of the criminal law) would unduly interfere with the maintenance of the swift and informal disciplinary procedures needed in
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the schools. Just as we have in other cases dispensed with the warrant requirement when “the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search,” we hold today that school officials need not obtain a warrant before searching a student who is under their authority. The school setting also requires some modification of the level of suspicion of illicit activity needed to justify a search. Ordinarily, a search— even one that may permissibly be carried out without a warrant—must be based upon “probable cause” to believe that a violation of the law has occurred. However, “probable cause” is not an irreducible requirement of a valid search. The fundamental command of the Fourth Amendment is that searches and seizures be reasonable, and although “both the concept of probable cause and the requirement of a warrant bear on the reasonableness of a search, . . . in certain limited circumstances neither is required.” . . . We join the majority of courts that have examined this issue in concluding that the accommodation of the privacy interests of schoolchildren with the substantial need of teachers and administrators for freedom to maintain order in the schools does not require strict adherence to the requirement that searches be based on probable cause to believe that the subject of the search has violated or is violating the law. Rather, the legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search. Determining the reasonableness of any search involves a twofold inquiry: first, one must consider “whether the . . . action was justified at its inception”; second, one must determine whether the search as actually conducted “was reasonably related in scope to the circumstances which justified the interference in the first place.” Under ordinary circumstances, a search of a student by a teacher or other school official will be “justified at its inception” when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school. Such a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.
This standard will, we trust, neither unduly burden the efforts of school authorities to maintain order in their schools nor authorize unrestrained intrusions upon the privacy of schoolchildren. By focusing attention on the question of reasonableness, the standard will spare teachers and school administrators the necessity of schooling themselves in the niceties of probable cause and permit them to regulate their conduct according to the dictates of reason and common sense. At the same time, the reasonableness standard should ensure that the interests of students will be invaded no more than is necessary to achieve the legitimate end of preserving order in the schools. There remains the question of the legality of the search in this case. We recognize that the “reasonable grounds” standard applied by the New Jersey Supreme Court in its consideration of this question is not substantially different from the standard that we have adopted today. Nonetheless, we believe that the New Jersey court’s application of that standard to strike down the search of T. L. O.’s purse reflects a somewhat crabbed notion of reasonableness. Our review of the facts surrounding the search leads us to conclude that the search was in no sense unreasonable for Fourth Amendment purposes. The incident that gave rise to this case actually involved two separate searches, with the first— the search for cigarettes—providing the suspicion that gave rise to the second—the search for marijuana. Although it is the fruits of the second search that are at issue here, the validity of the search for marijuana must depend on the reasonableness of the initial search for cigarettes, as there would have been no reason to suspect that T. L. O. possessed marijuana had the first search not taken place. Accordingly, it is to the search for cigarettes that we first turn our attention. The New Jersey Supreme Court pointed to two grounds for its holding that the search for cigarettes was unreasonable. First, the court observed that possession of cigarettes was not in itself illegal or a violation of school rules. Because the contents of T. L. O.’s purse would therefore have “no direct bearing on the infraction” of which she was accused (smoking in a lavatory where smoking was prohibited), there was no reason to search her purse. Second, even assuming that a search of T. L. O.’s purse might under
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Public School Searches
some circumstances be reasonable in light of the accusation made against T. L. O., the New Jersey court concluded that Mr. Choplick in this particular case had no reasonable grounds to suspect that T. L. O. had cigarettes in her purse. At best, according to the court, Mr. Choplick had “a good hunch.” Both these conclusions are implausible. T. L. O. had been accused of smoking, and had denied the accusation in the strongest possible terms when she stated that she did not smoke at all. Surely it cannot be said that under these circumstances, T. L. O.’s possession of cigarettes would be irrelevant to the charges against her or to her response to those charges. T. L. O.’s possession of cigarettes, once it was discovered, would both corroborate the report that she had been smoking and undermine the credibility of her defense to the charge of smoking. To be sure, the discovery of the cigarettes would not prove that T. L. O. had been smoking in the lavatory; nor would it, strictly speaking, necessarily be inconsistent with her claim that she did not smoke at all. But it is universally recognized that evidence, to be relevant to an inquiry, need not conclusively prove the ultimate fact in issue, but only have “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” The relevance of T. L. O.’s possession of cigarettes to the question whether she had been smoking and to the credibility of her denial that she smoked supplied the necessary “nexus” between the item searched for and the infraction under investigation. Thus, if Mr. Choplick in fact had a reasonable suspicion that T. L. O. had cigarettes in her purse, the search was justified despite the fact that the cigarettes, if found, would constitute “mere evidence” of a violation. Of course, the New Jersey Supreme Court also held that Mr. Choplick had no reasonable suspicion that the purse would contain cigarettes. This conclusion is puzzling. A teacher had reported that T. L. O. was smoking in the lavatory. Certainly this report gave Mr. Choplick reason to suspect that T. L. O. was carrying cigarettes with her; and if she did have cigarettes, her purse was the obvious place in which to find them. Mr. Choplick’s suspicion that there were cigarettes in the purse was not an “inchoate and unparticularized suspicion or ‘hunch,’” rather,
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it was the sort of “common sense conclusio[n] about human behavior” upon which “practical people”—including government officials—are entitled to rely. Of course, even if the teacher’s report were true, T. L. O. might not have had a pack of cigarettes with her; she might have borrowed a cigarette from someone else or have been sharing a cigarette with another student. But the requirement of reasonable suspicion is not a requirement of absolute certainty: “sufficient probability, not certainty, is the touchstone of reasonableness under the Fourth Amendment. . . .” Because the hypothesis that T. L. O. was carrying cigarettes in her purse was itself not unreasonable, it is irrelevant that other hypotheses were also consistent with the teacher’s accusation. Accordingly, it cannot be said that Mr. Choplick acted unreasonably when he examined T. L. O.’s purse to see if it contained cigarettes. Our conclusion that Mr. Choplick’s decision to open T. L. O.’s purse was reasonable brings us to the question of the further search for marijuana once the pack of cigarettes was located. The suspicion upon which the search for marijuana was founded was provided when Mr. Choplick observed a package of rolling papers in the purse as he removed the pack of cigarettes. Although T. L. O. does not dispute the reasonableness of Mr. Choplick’s belief that the rolling papers indicated the presence of marijuana, she does contend that the scope of the search Mr. Choplick conducted exceeded permissible bounds when he seized and read certain letters that implicated T. L. O. in drug dealing. This argument, too, is unpersuasive. The discovery of the rolling papers concededly gave rise to a reasonable suspicion that T. L. O. was carrying marijuana as well as cigarettes in her purse. This suspicion justified further exploration of T. L. O.’s purse, which turned up more evidence of drug-related activities: a pipe, a number of plastic bags of the type commonly used to store marijuana, a small quantity of marijuana, and a fairly substantial amount of money. Under these circumstances, it was not unreasonable to extend the search to a separate zippered compartment of the purse; and when a search of that compartment revealed an index card containing a list of “people who owe me money” as well as to letters, the inference that T. L. O. was involved in marijuana trafficking was substantial enough to justify
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Mr. Choplick in examining the letters to determine whether they contained any further evidence. In short, we cannot conclude that the search for marijuana was unreasonable in any respect. Because the search resulting in the discovery of the evidence of marijuana dealing by T. L. O. was reasonable, the New Jersey Supreme Court’s decision to exclude that evidence from T. L. O.’s juvenile delinquency proceedings on Fourth Amendment grounds was erroneous. Accordingly, the judgment of the Supreme Court of New Jersey is Reversed.
Reasonable Suspicion of Drugs Did Not Justify Strip Search of 13-year-old Girl
Safford Unified School District v. Redding Supreme Court of the United States, 2009. ___ U.S. ___, 129 S. Ct. 2633.
Justice SOUTER delivered the opinion of the Court. The issue here is whether a 13-year-old student’s Fourth Amendment right was violated when she was subjected to a search of her bra and underpants by school officials acting on reasonable suspicion that she had brought forbidden prescription and over-the-counter drugs to school. Because there were no reasons to suspect the drugs presented a danger or were concealed in her underwear, we hold that the search did violate the Constitution, but because there is reason to question the clarity with which the right was established, the official who ordered the unconstitutional search is entitled to qualified immunity from liability. The events immediately prior to the search in question began in 13-year-old Savana Redding’s math class at Safford Middle School one October day in 2003. The assistant principal of the school, Kerry Wilson, came into the room and asked Savana to go to his office. There, he showed her a day planner, unzipped and open flat on his desk,
in which there were several knives, lighters, a permanent marker, and a cigarette. Wilson asked Savana whether the planner was hers; she said it was, but that a few days before she had lent it to her friend, Marissa Glines. Savana stated that none of the items in the planner belonged to her. Wilson then showed Savana four white prescription-strength ibuprofen 400-mg pills, and one over-the-counter blue naproxen 200-mg pill, all used for pain and inflammation but banned under school rules without advance permission. He asked Savana if she knew anything about the pills. Savana answered that she did not. Wilson then told Savana that he had received a report that she was giving these pills to fellow students; Savana denied it and agreed to let Wilson search her belongings. Helen Romero, an administrative assistant, came into the office, and together with Wilson they searched Savana’s backpack, finding nothing. At that point, Wilson instructed Romero to take Savana to the school nurse’s office to search her clothes for pills. Romero and the nurse, Peggy Schwallier, asked Savana to remove her jacket, socks, and shoes, leaving her in stretch pants and a T-shirt (both without pockets), which she was then asked to remove. Finally, Savana was told to pull her bra out and to the side and shake it, and to pull out the elastic on her underpants, thus exposing her breasts and pelvic area to some degree. No pills were found. Savana’s mother filed suit against Safford Unified School District # 1, Wilson, Romero, and Schwallier for conducting a strip search in violation of Savana’s Fourth Amendment rights. . . . The District Court for the District of Arizona granted the motion on the ground that there was no Fourth Amendment violation, and a panel of the Ninth Circuit affirmed. A closely divided Circuit sitting en banc, however, reversed. . . . The upshot was reversal of summary judgment as to Wilson, while affirming the judgments in favor of Schwallier, the school nurse, and Romero, the administrative assistant, since they had not acted as independent decisionmakers. We granted certiorari, and now affirm in part, reverse in part, and remand. The Fourth Amendment “right of the people to be secure in their persons . . . against unreasonable searches and seizures” generally requires a law enforcement officer to have probable cause
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Public School Searches
for conducting a search. “Probable cause exists where ‘the facts and circumstances within [an officer’s] knowledge and of which [he] had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed,” and that evidence bearing on that offense will be found in the place to be searched. In T. L. O., we recognized that the school setting “requires some modification of the level of suspicion of illicit activity needed to justify a search,” and held that for searches by school officials “a careful balancing of governmental and private interests suggests that the public interest is best served by a Fourth Amendment standard of reasonableness that stops short of probable cause.” We have thus applied a standard of reasonable suspicion to determine the legality of a school administrator’s search of a student, and have held that a school search “will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.” . . . Perhaps the best that can be said generally about the required knowledge component of probable cause for a law enforcement officer’s evidence search is that it raise a “fair probability,” or a “substantial chance,” of discovering evidence of criminal activity. The lesser standard for school searches could as readily be described as a moderate chance of finding evidence of wrongdoing. In this case, the school’s policies strictly prohibit the nonmedical use, possession, or sale of any drug on school grounds, including “ ‘[a]ny prescription or over-the-counter drug, except those for which permission to use in school has been granted pursuant to Board policy.’ ” A week before Savana was searched, another student, Jordan Romero (no relation of the school’s administrative assistant), told the principal and Assistant Principal Wilson that “certain students were bringing drugs and weapons on campus,” and that he had been sick after taking some pills that “he got from a classmate.” On the morning of October 8, the same boy handed Wilson a white pill that he said Marissa Glines had given him. He told Wilson that students were planning to take the pills at lunch.
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Wilson learned from Peggy Schwallier, the school nurse, that the pill was ibuprofen 400 mg, available only by prescription. Wilson then called Marissa out of class. Outside the classroom, Marissa’s teacher handed Wilson the day planner, found within Marissa’s reach, containing various contraband items. Wilson escorted Marissa back to his office. In the presence of Helen Romero, Wilson requested Marissa to turn out her pockets and open her wallet. Marissa produced a blue pill, several white ones, and a razor blade. Wilson asked where the blue pill came from, and Marissa answered, “ ‘I guess it slipped in when she gave me the IBU 400s.’ ” When Wilson asked whom she meant, Marissa replied, “ ‘Savana Redding.’ ” Wilson then enquired about the day planner and its contents; Marissa denied knowing anything about them. Wilson did not ask Marissa any follow-up questions to determine whether there was any likelihood that Savana presently had pills: neither asking when Marissa received the pills from Savana nor where Savana might be hiding them. Schwallier did not immediately recognize the blue pill, but information provided through a poison control hotline indicated that the pill was a 200-mg dose of an anti-inflammatory drug, generically called naproxen, available over the counter. At Wilson’s direction, Marissa was then subjected to a search of her bra and underpants by Romero and Schwallier, as Savana was later on. The search revealed no additional pills. It was at this juncture that Wilson called Savana into his office and showed her the day planner. Their conversation established that Savana and Marissa were on friendly terms: while she denied knowledge of the contraband, Savana admitted that the day planner was hers and that she had lent it to Marissa. Wilson had other reports of their friendship from staff members, who had identified Savana and Marissa as part of an unusually rowdy group at the school’s opening dance in August, during which alcohol and cigarettes were found in the girls’ bathroom. Wilson had reason to connect the girls with this contraband, for Wilson knew that Jordan Romero had told the principal that before the dance, he had been at a party at Savana’s house where alcohol was served. Marissa’s statement that the pills came from Savana was thus sufficiently
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plausible to warrant suspicion that Savana was involved in pill distribution. This suspicion of Wilson’s was enough to justify a search of Savana’s backpack and outer clothing. If a student is reasonably suspected of giving out contraband pills, she is reasonably suspected of carrying them on her person and in the carryall that has become an item of student uniform in most places today. If Wilson’s reasonable suspicion of pill distribution were not understood to support searches of outer clothes and backpack, it would not justify any search worth making. And the look into Savana’s bag, in her presence and in the relative privacy of Wilson’s office, was not excessively intrusive, any more than Romero’s subsequent search of her outer clothing. Here it is that the parties part company, with Savana’s claim that extending the search at Wilson’s behest to the point of making her pull out her underwear was constitutionally unreasonable. The exact label for this final step in the intrusion is not important, though strip search is a fair way to speak of it. Romero and Schwallier directed Savana to remove her clothes down to her underwear, and then “pull out” her bra and the elastic band on her underpants. Although Romero and Schwallier stated that they did not see anything when Savana followed their instructions, we would not define strip search and its Fourth Amendment consequences in a way that would guarantee litigation about who was looking and how much was seen. The very fact of Savana’s pulling her underwear away from her body in the presence of the two officials who were able to see her necessarily exposed her breasts and pelvic area to some degree, and both subjective and reasonable societal expectations of personal privacy support the treatment of such a search as categorically distinct, requiring distinct elements of justification on the part of school authorities for going beyond a search of outer clothing and belongings. Savana’s subjective expectation of privacy against such a search is inherent in her account of it as embarrassing, frightening, and humiliating. . . . The indignity of the search does not, of course, outlaw it, but it does implicate the rule of reasonableness as stated in T. L. O., that “the search as actually conducted [be] reasonably related in scope to the circumstances which
justified the interference in the first place.” The scope will be permissible, that is, when it is “not excessively intrusive in light of the age and sex of the student and the nature of the infraction.” Here, the content of the suspicion failed to match the degree of intrusion. Wilson knew beforehand that the pills were prescriptionstrength ibuprofen and over-the-counter naproxen, common pain relievers equivalent to two Advil, or one Aleve. He must have been aware of the nature and limited threat of the specific drugs he was searching for, and while just about anything can be taken in quantities that will do real harm, Wilson had no reason to suspect that large amounts of the drugs were being passed around, or that individual students were receiving great numbers of pills. Nor could Wilson have suspected that Savana was hiding common painkillers in her underwear. Petitioners suggest, as a truth universally acknowledged, that “students . . . hid[e] contraband in or under their clothing.” . . . Wilson never even determined when Marissa had received the pills from Savana; if it had been a few days before, that would weigh heavily against any reasonable conclusion that Savana presently had the pills on her person, much less in her underwear. In sum, missing from the suspected facts that pointed to Savana were any indication of danger to the students from the power of the drugs or their quantity, and any reason to suppose that Savana was carrying pills in her underwear. We think that the combination of these deficiencies was fatal to finding the search reasonable. . . . We think these differences of opinion from our own are substantial enough to require immunity for the school officials in this case. . . . We conclude that qualified immunity is warranted. The strip search of Savana Redding was unreasonable and a violation of the Fourth Amendment, but petitioners Wilson, Romero, and Schwallier are nevertheless protected from liability through qualified immunity. Our conclusions here do not resolve, however, the question of the liability of petitioner Safford Unified School District # 1. . . . The judgment of the Ninth Circuit is therefore affirmed in part and reversed in part, and this case is remanded for consideration of the . . . [liability of the school district]. It is so ordered.
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Public School Searches
CASE NOTE Before Safford Unified School District #1 vs. Redding was decided by the Supreme Court, several states had enacted legislation to either prohibit or severely limit strip searches. 1. California: Cal. Educ. Code (section) 49050. (“No School Employees shall conduct a search that involves: a) Conducting a body cavity search of a pupil manually or with an instrument, (b) removing or arranging any or all of the clothing of a pupil to permit a visual inspection of the underclothing, breast, buttocks, or genitalia of a pupil.”) 2. Michigan, Michigan Comp. Laws Ann. (Section) 722.628 (10) (“A child shall not be subjected to a search at a school that requires the child to remove his or her clothing to expose his buttocks or genitalia or her breasts, buttocks, or genitalia unless the department has obtained an order from a court of competent jurisdiction permitting such a search. . . .” ) 3. Missouri, MO. Ann. Stat. (Section) 167.166 (1) – (2). (“No employee of or volunteer at any public school or charter school within this state shall perform a strip search of any student of any such school. However, strip searches may be conducted by, or under the authority of, a commissioned law enforcement officer.”) 4. New Jersey, N. J. Stat. Ann (section) 18A:37-6.1. (“This bill prohibits any teacher, principal or other educational personnel from conducting any strip search or body cavity search of any pupil.) 5. Wisconsin, Wis. Stat. Ann (section) 948.50 (3). Wisconsin makes a strip search by school personnel a criminal act. (“Any official, employee or agent or any school or school district who conducts a strip search of any pupil is guilty of a Class B misdemeanor”) 6. South Carolina: S.C. Code Ann (Section) 5963-1140 (“No school administrator or official may conduct a strip search”) 7. Iowa: Iowa Code Annotated (Section) 808 A.2 (“A school official shall not conduct a search which involves: a. A strip search b. A body cavity search”) 8. Washington, Wash Annotated (Section) 28A.600.230 (3) (“A principal or vice principal
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or anyone acting under their direction may not subject a student to a strip search or body cavity search . . .”)
School District’s Drug Policy of Random Urinalysis for Interscholastic Athletes Is Constitutional
Vernonia School District 47J v. Acton Supreme Court of the United States, 1995. 515 U.S. 646, 115 S. Ct. 2386.
Justice SCALIA delivered the opinion of the Court. The Student Athlete Drug Policy adopted by School District 47J in the town of Vernonia, Oregon, authorizes random urinalysis drug testing of students who participate in the District’s school athletics programs. We granted certiorari to decide whether this violates the Fourth and Fourteenth Amendments to the United States Constitution. Petitioner Vernonia School District 47J (District) operates one high school and three grade schools in the logging community of Vernonia, Oregon. As elsewhere in small-town America, school sports play a prominent role in the town’s life, and student athletes are admired in their schools and in the community. Drugs had not been a major problem in Vernonia schools. In the mid-to-late 1980’s, however, teachers and administrators observed a sharp increase in drug use. Students began to speak out about their attraction to the drug culture, and to boast that there was nothing the school could do about it. Along with more drugs came more disciplinary problems. Between 1988 and 1989 the number of disciplinary referrals in Vernonia schools rose to more than twice the number reported in the early 1980’s, and several students were suspended. Students became increasingly rude during class; outbursts of profane language became common. Not only were student athletes included among the drug users but, as the District court found, athletes were the leaders of the drug culture. . . .
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Initially, the District responded to the drug problem by offering special classes, speakers, and presentations designed to deter drug use. It even brought in a specially trained dog to detect drugs, but the drug problem persisted. . . . At that point, District officials began considering a drug-testing program. They held a parent “input night” to discuss the proposed Student Athlete Drug Policy (Policy), and the parents in attendance gave their unanimous approval. The school board approved the Policy for implementation in the fall of 1989. Its expressed purpose is to prevent student athletes from using drugs, to protect their health and safety, and to provide drug users with assistance programs. The Policy applies to all students participating in interscholastic athletics. Students wishing to play sports must sign a form consenting to the testing and must obtain the written consent of their parents. Athletes are tested at the beginning of the season for their sport. In addition, once each week of the season the names of the athletes are placed in a “pool” from which a student, with the supervision of two adults, blindly draws the names of 10% of the athletes for random testing. Those selected are notified and tested that same day, if possible. . . . If a sample tests positive, a second test is administered as soon as possible to confirm the result. If the second test is negative, no further action is taken. If the second test is positive, the athlete’s parents are notified, and the school principal convenes a meeting with the student and his parents, at which the student is given the option of (1) participating for six weeks in an assistance program that includes weekly urinalysis, or (2) suffering suspension from athletics for the remainder of the current season and the next athletic season. The student is then retested prior to the start of the next athletic season for which he or she is eligible. The Policy states that a second offense results in automatic imposition of option (2); a third offense is suspension for the remainder of the current season and the next two athletic seasons. In the fall of 1991, respondent James Acton, then a seventh-grader, signed up to play football at one of the District’s grade schools. He was denied participation, however, because he and his parents refused to sign the testing consent forms. The Actons filed suit, seeking declaratory and
injunctive relief from enforcement of the Policy on the grounds that it violated the Fourth and Fourteenth Amendments to the United States Constitution. . . . We granted certiorari. . . . The Fourth Amendment to the United States Constitution provides that the Federal Government shall not violate “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. . . .” As the text of the Fourth Amendment indicates, the ultimate measure of the constitutionality of a governmental search is “reasonableness.” At least in a case such as this, where there was no clear practice, either approving or disapproving the type of search at issue, at the time the constitutional provision was enacted, whether a particular search meets the reasonableness standard “is judged by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests. ” . . . Where a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing, this Court has said that reasonableness generally requires the obtaining of a judicial warrant. . . . Warrants cannot be issued, of course, without the showing of probable cause required by the Warrant Clause. But a warrant is not required to establish the reasonableness of all government searches; and when a warrant is not required (and the Warrant Clause therefore not applicable), probable cause is not invariably required either. A search unsupported by probable cause can be constitutional, we have said, “when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.” . . . We have found such “special needs” to exist in the public school context. There, the warrant requirement “would unduly interfere with the maintenance of the swift and informal disciplinary procedures [that are] needed,” and “strict adherence to the requirement that searches be based upon probable cause” would undercut “the substantial need of teachers and administrators for freedom to maintain order in the schools.” . . . The school search we approved in T. L. O., while not based on probable cause, was based on individualized suspicion of wrongdoing. As we explicitly acknowledged, however,
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Public School Searches
“the Fourth Amendment imposes no irreducible requirement of such suspicion,” . . . The first factor to be considered is the nature of the privacy interest upon which the search here at issue intrudes. The Fourth Amendment does not protect all subjective expectations of privacy, but only those that society recognizes as “legitimate.” . . . What expectations are legitimate varies, of course, with context, . . . depending, for example, upon whether the individual asserting the privacy interest is at home, at work, in a car, or in a public park. In addition, the legitimacy of certain privacy expectations vis-à-vis the State may depend upon the individual’s legal relationship with the State. . . . Central, in our view, to the present case is the fact that the subjects of the Policy are (1) children, who (2) have been committed to the temporary custody of the State as schoolmaster. Traditionally at common law, and still today, unemancipated minors lack some of the most fundamental rights of self-determination— including even the right of liberty in its narrow sense, i.e., the right to come and go at will. They are subject, even as to their physical freedom, to the control of their parents or guardians. . . . In T. L. O. we rejected the notion that public schools . . . exercise only parental power over their students, which of course is not subject to constitutional constraints. . . . Such a view of things, we said, “is not entirely ‘consonant with compulsory education laws,’ ” . . . and is inconsistent with our prior decisions treating school officials as state actors for purposes of the Due Process and Free Speech Clauses. . . . But while denying that the State’s power over schoolchildren is formally no more than the delegated power of their parents, T. L. O. did not deny, but indeed emphasized, that the nature of that power is custodial and tutelary, permitting a degree of supervision and control that could not be exercised over free adults. “[A] proper educational environment requires close supervision of schoolchildren, as well as the enforcement of rules against conduct that would be perfectly permissible if undertaken by an adult.” . . . While we do not, of course, suggest that public schools as a general matter have such a degree of control over children as to give rise to a constitutional “duty to protect,” . . . we have acknowledged that for many purposes “school authorities ac[t]
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in loco parentis,” . . . with the power and indeed the duty to “inculcate the habits and manners of civility.” . . . Thus, while children assuredly do not “shed their constitutional rights . . . at the schoolhouse gate,” . . . the nature of those rights is what is appropriate for children in school. . . . Fourth Amendment rights, no less than First and Fourteenth Amendment rights, are different in public schools than elsewhere; the “reasonableness” inquiry cannot disregard the schools’ custodial and tutelary responsibility for children. . . . Legitimate privacy expectations are even less with regard to student athletes. School sports are not for the bashful. They require “suiting up” before each practice or event, and showering and changing afterwards. Public school locker rooms, the usual sites for these activities, are not notable for the privacy they afford. . . . There is an additional respect in which school athletes have a reduced expectation of privacy. By choosing to “go out for the team,” they voluntarily subject themselves to a degree of regulation even higher than that imposed on students generally. In Vernonia’s public schools, they must submit to a preseason physical exam . . . , they must acquire adequate insurance coverage or sign an insurance waiver, maintain a minimum grade point average, and comply with any “rules of conduct, dress, training hours and related matters as may be established for each sport by the head coach and athletic director with the principal’s approval.” . . . Somewhat like adults who choose to participate in a “closely regulated industry,” students who voluntarily participate in school athletics have reason to expect intrusions upon normal rights and privileges, including privacy. . . . Having considered the scope of the legitimate expectation of privacy at issue here, we turn next to the character of the intrusion that is complained of. We recognize . . . that collecting the samples for urinalysis intrudes upon “an excretory function traditionally shielded by great privacy.” . . . We noted, however, that the degree of intrusion depends upon the manner in which production of the urine sample is monitored. . . . Under the District’s Policy, male students produce samples at a urinal along the wall. They remain fully clothed and are only observed from behind, if at all. Female students produce samples
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in an enclosed stall, with a female monitor standing outside listening only for sounds of tampering. These conditions are nearly identical to those typically encountered in public restrooms, which men, women, and especially schoolchildren use daily. Under such conditions, the privacy interests compromised by the process of obtaining the urine sample are in our view negligible. The other privacy-invasive aspect of urinalysis is, of course, the information it discloses concerning the state of the subject’s body, and the materials he has ingested. In this regard it is significant that the tests at issue here look only for drugs, and not for whether the student is, for example, epileptic, pregnant, or diabetic. . . . Moreover, the drugs for which the samples are screened are standard, and do not vary according to the identity of the student. And finally, the results of the tests are disclosed only to a limited class of school personnel who have a need to know; and they are not turned over to law enforcement authorities or used for any internal disciplinary function. . . . Finally, we turn to consider the nature and immediacy of the governmental concern at issue here, and the efficacy of this means for meeting it. . . . That the nature of the concern is important— indeed, perhaps compelling—can hardly be doubted. Deterring drug use by our Nation’s schoolchildren is at least as important as enhancing efficient enforcement of the Nation’s laws against the importation of drugs. . . . As for the immediacy of the District’s concerns: We are not inclined to question—indeed, we could not possibly find clearly erroneous— that “a large segment of the student body, particularly those involved in interscholastic athletics, was in a state of rebellion,” that “[d]isciplinary actions had reached ‘epidemic proportions,’ ” and that “the rebellion was being fueled by alcohol and drug abuse as well as by the student’s misperceptions about the drug culture.” . . . As to the efficacy of this means for addressing the problem: It seems to us self-evident that a drug problem largely fueled by the “role model” effect of athletes’ drug use, and of particular danger to athletes, is effectively addressed by making sure the athletes do not use drugs. Respondents argue that a “less intrusive means to the same end” was available, namely, “drug testing on suspicion of drug use.” . . . Taking into account all the factors we have considered above—the decreased expectation
of privacy, the relative unobtrusiveness of the search, and the severity of the need met by the search—we conclude Vernonia’s Policy is reasonable and hence constitutional. We caution against the assumption that suspicionless drug testing will readily pass constitutional muster in other contexts. The most significant element in this case is the first we discussed: that the Policy was undertaken in furtherance of the government’s responsibilities, under a public school system, as guardian and tutor of children entrusted to its care. . . . [W]hen the government acts as guardian and tutor the relevant question is whether the search is one that a reasonable guardian and tutor might undertake. . . . [W]e conclude that in the present case it is. We may note that the primary guardians of Vernonia’s schoolchildren appear to agree. The record shows no objection to this district-wide program by any parents other than the couple before us here—even though, as we have described, a public meeting was held to obtain parents’ views. We find insufficient basis to contradict the judgment of Vernonia’s parents, its school board, and the District Court, as to what was reasonably in the interest of these children under the circumstances. . . . It is so ordered. . . .
Policy Requiring All Students Who Participated in Competitive Extracurricular Activities to Submit to a Drug Test Was Reasonable and Did Not Violate the Fourth Amendment
Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls United States Supreme Court, 2002. 536 U.S. 822, 122 S. Ct. 2559.
Justice THOMAS delivered the opinion of the Court. The Student Activities Drug Testing Policy implemented by the Board of Education of Independent School District No. 92 of Pottawatomie County (School District) requires all students
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Public School Searches
who participate in competitive extracurricular activities to submit to drug testing. Because this Policy reasonably serves the School District’s important interest in detecting and preventing drug use among its students, we hold that it is constitutional. The city of Tecumseh, Oklahoma, is a rural community located approximately 40 miles southeast of Oklahoma City. The School District administers all Tecumseh public schools. In the fall of 1998, the School District adopted the Student Activities Drug Testing Policy (Policy), which requires all middle and high school students to consent to drug testing in order to participate in any extracurricular activity. In practice, the Policy has been applied only to competitive extracurricular activities sanctioned by the Oklahoma Secondary Schools Activities Association, such as the Academic Team, Future Farmers of America, Future Homemakers of America, band, choir, pom-pom, cheerleading, and athletics. Under the Policy, students are required to take a drug test before participating in an extracurricular activity, must submit to random drug testing while participating in that activity, and must agree to be tested at any time upon reasonable suspicion. The urinalysis tests are designed to detect only the use of illegal drugs, including amphetamines, marijuana, cocaine, opiates, and barbiturates, not medical conditions or the presence of authorized prescription medications. At the time of their suit, both respondents attended Tecumseh High School. Respondent Lindsay Earls was a member of the show choir, the marching band, the Academic Team, and the National Honor Society. Respondent Daniel James sought to participate in the Academic Team. Together with their parents, Earls and James brought a 42 U.S.C. § 1983 action against the School District, challenging the Policy both on its face and as applied to their participation in extracurricular activities. They alleged that the Policy violates the Fourth Amendment as incorporated by the Fourteenth Amendment and requested injunctive and declarative relief. They also argued that the School District failed to identify a special need for testing students who participate in extracurricular activities, and that the “Drug Testing Policy neither addresses a proven problem nor promises to bring any benefit to students or the school.” . . .
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Applying the principles articulated in Vernonia School Dist. 47J v. Acton, in which we upheld the suspicionless drug testing of school athletes, the United States District Court for the Western District of Oklahoma rejected respondents’ claim that the Policy was unconstitutional and granted summary judgment to the School District. The court noted that “special needs” exist in the public school context and that, although the School District did “not show a drug problem of epidemic proportions,” there was a history of drug abuse starting in 1970 that presented “legitimate cause for concern.” . . . The United States Court of Appeals for the Tenth Circuit reversed, holding that the Policy violated the Fourth Amendment. . . . We granted certiorari, . . . and now reverse. The Fourth Amendment to the United States Constitution protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Searches by public school officials, such as the collection of urine samples, implicate Fourth Amendment interests. . . . We must therefore review the School District’s Policy for “reasonableness,” which is the touchstone of the constitutionality of a governmental search. In the criminal context, reasonableness usually requires a showing of probable cause. . . . The probable-cause standard, however, “is peculiarly related to criminal investigations” and may be unsuited to determining the reasonableness of administrative searches where the “Government seeks to prevent the development of hazardous conditions.” . . . The Court has also held that a warrant and finding of probable cause are unnecessary in the public school context because such requirements “would unduly interfere with the maintenance of the swift and informal disciplinary procedures [that are] needed.” Vernonia, . . . (quoting T. L. O. . . .). Given that the School District’s Policy is not in any way related to the conduct of criminal investigations, . . . respondents do not contend that the School District requires probable cause before testing students for drug use. Respondents instead argue that drug testing must be based at least on some level of individualized suspicion. . . . It is true that we generally determine the reasonableness of a search by balancing the nature of the intrusion on the individual’s privacy against the promotion of legitimate governmental interests. . . . But
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we have long held that “the Fourth Amendment imposes no irreducible requirement of [individualized] suspicion.” . . . “[I]n certain limited circumstances, the Government’s need to discover such latent or hidden conditions, or to prevent their development, is sufficiently compelling to justify the intrusion on privacy entailed by conducting such searches without any measure of individualized suspicion.” . . . Therefore, in the context of safety and administrative regulations, a search unsupported by probable cause may be reasonable “when ‘special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirement impracticable.’” . . . Significantly, this Court has previously held that “special needs” inhere in the public school context. . . . While schoolchildren do not shed their constitutional rights when they enter the schoolhouse, . . . “Fourth Amendment rights . . . are different in public schools than elsewhere; the ‘reasonableness’ inquiry cannot disregard the schools’ custodial and tutelary responsibility for children.” . . . In particular, a finding of individualized suspicion may not be necessary when a school conducts drug testing. In Vernonia, this Court held that the suspicionless drug testing of athletes was constitutional. . . . Applying the principles of Vernonia to the somewhat different facts of this case, we conclude that Tecumseh’s Policy is also constitutional. We first consider the nature of the privacy interest allegedly compromised by the drug testing. . . . As in Vernonia, the context of the public school environment serves as the backdrop for the analysis of the privacy interest at stake and the reasonableness of the drug testing policy in general. . . . A student’s privacy interest is limited in a public school environment where the State is responsible for maintaining discipline, health, and safety. Schoolchildren are routinely required to submit to physical examinations and vaccinations against disease. . . . Securing order in the school environment sometimes requires that students be subjected to greater controls than those appropriate for adults. . . . (“Without first establishing discipline and maintaining order, teachers cannot begin to educate their students. And apart from education, the school has the obligation to protect pupils from mistreatment by other children, and also to protect teachers themselves
from violence by the few students whose conduct in recent years has prompted national concern”). Respondents argue that because children participating in nonathletic extracurricular activities are not subject to regular physicals and communal undress, they have a stronger expectation of privacy than the athletes tested in Vernonia. . . . This distinction, however, was not essential to our decision in Vernonia, which depended primarily upon the school’s custodial responsibility and authority. In any event, students who participate in competitive extracurricular activities voluntarily subject themselves to many of the same intrusions on their privacy as do athletes. Some of these clubs and activities require occasional off-campus travel and communal undress. All of them have their own rules and requirements for participating students that do not apply to the student body as a whole. . . . For example, each of the competitive extracurricular activities governed by the Policy must abide by the rules of the Oklahoma Secondary Schools Activities Association, and a faculty sponsor monitors the students for compliance with the various rules dictated by the clubs and activities. . . . This regulation of extracurricular activities further diminishes the expectation of privacy among schoolchildren. . . . We therefore conclude that the students affected by this Policy have a limited expectation of privacy. Next, we consider the character of the intrusion imposed by the Policy. . . . Urination is “an excretory function traditionally shielded by great privacy.” . . . But the “degree of intrusion” on one’s privacy caused by collecting a urine sample “depends upon the manner in which production of the urine sample is monitored.” . . . Under the Policy, a faculty monitor waits outside the closed restroom stall for the student to produce a sample and must “listen for the normal sounds of urination in order to guard against tampered specimens and to insure an accurate chain of custody.” . . . The monitor then pours the sample into two bottles that are sealed and placed into a mailing pouch along with a consent form signed by the student. This procedure is virtually identical to that reviewed in Vernonia, except that it additionally protects privacy by allowing male students to produce their samples behind a closed stall. Given that we considered
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Public School Searches
the method of collection in Vernonia a “negligible” intrusion, . . . the method here is even less problematic. In addition, the Policy clearly requires that the test results be kept in confidential files separate from a student’s other educational records and released to school personnel only on a “need to know” basis. Respondents nonetheless contend that the intrusion on students’ privacy is significant because the Policy fails to protect effectively against the disclosure of confidential information and, specifically, that the school “has been careless in protecting that information: for example, the choir teacher looked at students’ prescription drug lists and left them where other students could see them.” . . . But the choir teacher is someone with a “need to know,” because during off-campus trips she needs to know what medications are taken by her students. Even before the Policy was enacted the choir teacher had access to this information. . . . In any event, there is no allegation that any other student did see such information. This one example of alleged carelessness hardly increases the character of the intrusion. Moreover, the test results are not turned over to any law enforcement authority. Nor do the test results here lead to the imposition of discipline or have any academic consequences. . . . Rather, the only consequence of a failed drug test is to limit the student’s privilege of participating in extracurricular activities. Indeed, a student may test positive for drugs twice and still be allowed to participate in extracurricular activities. After the first positive test, the school contacts the student’s parent or guardian for a meeting. The student may continue to participate in the activity if within five days of the meeting the student shows proof of receiving drug counseling and submits to a second drug test in two weeks. For the second positive test, the student is suspended from participation in all extracurricular activities for 14 days, must complete four hours of substance abuse counseling, and must submit to monthly drug tests. Only after a third positive test will the student be suspended from participating in any extracurricular activity for the remainder of the school year, or 88 school days, whichever is longer. . . . Given the minimally intrusive nature of the sample collection and the limited uses to which
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the test results are put, we conclude that the invasion of students’ privacy is not significant. Finally, this Court must consider the nature and immediacy of the government’s concerns and the efficacy of the Policy in meeting them. . . . This Court has already articulated in detail the importance of the governmental concern in preventing drug use by schoolchildren. . . . The drug abuse problem among our Nation’s youth has hardly abated since Vernonia was decided in 1995. In fact, evidence suggests that it has only grown worse. As in Vernonia, “the necessity for the State to act is magnified by the fact that this evil is being visited not just upon individuals at large, but upon children for whom it has undertaken a special responsibility of care and direction.” . . . The health and safety risks identified in Vernonia apply with equal force to Tecumseh’s children. Indeed, the nationwide drug epidemic makes the war against drugs a pressing concern in every school. Additionally, the School District in this case has presented specific evidence of drug use at Tecumseh schools. . . . The School District has provided sufficient evidence to shore up the need for its drug testing program. . . . Given the nationwide epidemic of drug use, and the evidence of increased drug use in Tecumseh schools, it was entirely reasonable for the School District to enact this particular drug testing policy. . . . We . . . reject respondents’ argument that drug testing must presumptively be based upon an individualized reasonable suspicion of wrongdoing because such a testing regime would be less intrusive. . . . In this context, the Fourth Amendment does not require a finding of individualized suspicion, . . . and we decline to impose such a requirement on schools attempting to prevent and detect drug use by students. . . . Finally, we find that testing students who participate in extracurricular activities is a reasonably effective means of addressing the School District’s legitimate concerns in preventing, deterring, and detecting drug use. While in Vernonia there might have been a closer fit between the testing of athletes and the trial court’s finding that the drug problem was “fueled by the ‘role model’ effect of athletes’ drug use,” such a finding was not essential to the holding. . . . Vernonia did not require the school to test the group of students most likely to use drugs, but
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rather considered the constitutionality of the program in the context of the public school’s custodial responsibilities. Evaluating the Policy in this context, we conclude that the drug testing of Tecumseh students who participate in extracurricular activities effectively serves the school district’s interest in protecting the safety and health of its students. Within the limits of the Fourth Amendment, local school boards must assess the desirability of drug testing schoolchildren. In upholding the constitutionality of the Policy, we express no opinion as to its wisdom. Rather, we hold only that Tecumseh’s Policy is a reasonable means of furthering the school district’s important interest in preventing and deterring drug use among its schoolchildren. Accordingly, we reverse the judgment of the Court of Appeals. It is so ordered.
CASE NOTES 1. As discussed in another context in Chapter 5 of this book, state constitutions may be more protective of individual rights than the U.S. Constitution. In such instances, the state constitutions are said to have “independent vitality.” Such instances may, for example, be found with regard to search of students in public schools. A case in point is York v. Wahkiakum School District No. 200, where the Supreme Court of the State of Washington, sitting en banc, ruled that Article I, Section 7 of the Washington State Constitution forbade a school district to conduct random drug testing of student athletes without individualized suspicion. This court rejected the U.S. Supreme Court’s exception for “special needs” per the Vernonia School District v. Acton and Earls decisions. The Supreme Court of Washington said that it did not recognize such an exception under the Washington State Constitution. The Washington Court pointed out that Article 1, Section 7 of the Washington State Constitution which provides that “No person shall be disturbed in his private affairs, or his home invaded, without authority of law,” gives greater protection to the individual than does the Fourth Amendment of the U.S. Constitution as interpreted by the U.S. Supreme Court in Vernonia and Earls. Thus, in the State of
Washington, there is no “authority in law” that permits a school district to disturb “one’s private affairs” and interfere with a “student’s bodily functions.” York v. Wahkiakum School District No. 200, 163 Wash.2d 297, 178 P.3d 995 (2008). 2. Drugs and Fourth Amendment. Where a school board passed a policy required students to consent to a random urinalysis testing for drugs, alcohol, or tobacco before they were allowed to participate in extracurricular activities or have permission to drive a car to school, the Court reviewed the case in light of Vernonia School Dist. 47J v. Acton and upheld the policy since it was a privilege—the students had the option not to participate in the extracurricular activities or not to drive to school. Todd v. Rush County Schools, 133 F.3d 984 (7th Cir. 1998). 3. A school board implemented a policy that required mandatory testing for drugs, alcohol, and tobacco for all students from grades 6 through 12. The court ruled the testing unconstitutional and different from Vernonia because of the compulsory attendance at school versus the voluntary participation in extracurricular activities. Therefore, there was no special need; a general concern about maintaining a drug free school was insufficient to establish a special need. Tannahill v. Lockney Independent School District, 133 F. Supp. 2d 919 (N.D. Tex. 2001). 4. Concern for drugs in public schools has led some state legislatures to enact laws specifically authorizing schools to conduct drug examinations of students who are suspected of being under the influence of substances as defined by law. Such statutes normally provide specific procedures to be followed, including reporting to the school principal, school nurse and others, as well as notification of parents. However, such statutes do not immunize school officials for violation of federal law. New Jersey has such a statute under which a drug test examination was conducted and the student sued, claiming violation of her privacy rights under the Fourth Amendment and her due process rights under the Fourteenth Amendment. The court upheld the school district finding that appropriate procedures were followed, the school regulations
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Public School Searches
regarding searches was not unconstitutionally vague, and that the urine and blood tests were not impermissibly intrusive. Hedges v. Musco, 204 F.3d 109 (2000).
Random, Suspicionless Searches of Students’ Persons and Belongings, Book Bags, etc., Is Unconstitutional
Doe v. Little Rock School District United States Court of Appeals, Eighth Circuit, 2004. 380 F.3d 349.
MORRIS SHEPPARD ARNOLD, Circuit Judge. This case requires us to decide whether the practice of the Little Rock School District (LRSD) that subjects secondary public school students to random, suspicionless searches of their persons and belongings by school officials is unconstitutional. We conclude that such searches violate the students’ Fourth Amendment rights because they unreasonably invade their legitimate expectations of privacy. Jane Doe is a secondary school student in the LRSD. One day during the school year, all of the students in Ms. Doe’s classroom were ordered to leave the room after removing everything from their pockets and placing all of their belongings, including their backpacks and purses, on the desks in front of them. While the students were in the hall outside their classroom, school personnel searched the items that the students had left behind, including Ms. Doe’s purse, and they discovered marijuana in a container in her purse. The parties have stipulated that LRSD has a practice of regularly conducting searches of randomly selected classrooms in this manner. In her amended complaint, Ms. Doe, individually and on behalf of a class of “all secondary public school students who have started seventh grade in the [LRSD] as of the 1999–2000 school year,” claimed that this method of conducting searches is unconstitutional, and sought declaratory and injunctive relief pursuant to 42 U.S.C. § 1983. After certifying the case as a class action,
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the district court entered judgment for the LRSD and dismissed the complaint with prejudice. We reverse. . . . In determining whether a particular type of school search is constitutionally reasonable, we engage in a fact-specific “balancing” inquiry, under which the magnitude of the government’s need to conduct the search at issue is weighed against the nature of the invasion that the search entails. “On one side of the balance are arrayed the individual’s legitimate expectations of privacy and personal security; on the other, the government’s need for effective methods to deal with breaches of public order.” The Supreme Court has developed a framework designed to make the required balancing of privacy and security interests somewhat less amorphous than it might otherwise be. A reviewing court is to consider first the “scope of the legitimate expectation of privacy at issue,” then the “character of the intrusion that is complained of,” and finally the “nature and immediacy of the governmental concern at issue” and the efficacy of the means employed for dealing with it. . . . Students presumptively have a legitimate, though limited, expectation of privacy in the personal belongings that they bring into public schools. Because subjecting students to full-scale, suspicionless searches eliminates virtually all of their privacy in their belongings, and there is no evidence in the record of special circumstances that would justify so considerable an intrusion, we hold that the search practice is unconstitutional. We ask first whether secondary public school students in the LRSD retain any legitimate expectations of privacy. The district court, quoting Earls, noted that a “student’s privacy interest is limited in a public school environment where the State is responsible for maintaining discipline, health, and safety.” Students in public schools do indeed have lesser expectations of privacy than people generally have in public situations, due in large part to the government’s responsibilities “as guardian and tutor of children entrusted to its care.” Vernonia. Public school students’ privacy interests, however, are not nonexistent. We think it is clear that schoolchildren are entitled to expect some degree of privacy in the personal items that they bring to school. . . . The Supreme Court has observed that there is a tension between the types of privacy “interests
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protected by the Fourth Amendment and the interest of the States in providing a safe environment conducive to education in the public schools,” and has concluded that the Fourth Amendment allows school officials some flexibility in resolving this tension. But it has characterized as “severely flawed” a state’s argument that “because of the pervasive supervision to which children in the schools are necessarily subject, a child has virtually no legitimate expectation of privacy in articles of personal property ‘unnecessarily’ carried into a school.” While the Court has acknowledged that students’ privacy rights are limited due to the “difficulty of maintaining discipline in the public schools,” and that “drug use and violent crime in the schools have become major social problems,” it has stated that “the situation is not so dire that students in the schools may claim no legitimate expectations of privacy.” It is true that the legitimate expectation of privacy retained by members of certain subpopulations of a public school’s student body falls below the already limited baseline level of privacy afforded to public school students generally. For instance, the Supreme Court has analogized students who voluntarily participate in school athletics or other competitive extracurricular activities to adults who choose to participate in a “closely regulated industry,” in that both groups voluntarily subject themselves to “intrusions upon normal rights and privileges, including privacy.” Vernonia and Earls. . . . As the district court noted, a passage that was added to the LRSD’s current Secondary Student Rights and Responsibilities Handbook, which is distributed to students at the beginning of the school year, provides that “[b]ook bags, backpacks, purses and similar containers are permitted on school property as a convenience for students,” and that “[i]f brought onto school property, such containers and their contents are at all times subject to random and periodic inspections by school officials.” But we do not think that this handbook passage has effected a waiver by LRSD students of any expectations of privacy that they would otherwise have. . . . The LRSD may not deprive its students of privacy expectations protected by the Fourth Amendment simply by announcing that the expectations will no longer be honored. Given that public school students retain some legitimate expectation of privacy in their persons
and belongings, we are bound to inquire into the character of the intrusion that the LRSD’s search practice imposes. We respectfully disagree with the district court’s determination that the search practices of the LRSD are “minimally intrusive.” . . . Whatever privacy interests the LRSD students have in the personal belongings that they bring to school are wholly obliterated by the search practice at issue here, because all such belongings are subject to being searched at any time without notice, individualized suspicion, or any apparent limit to the extensiveness of the search. Full-scale searches that involve people rummaging through personal belongings concealed within a container are manifestly more intrusive than searches affected by using metal detectors or dogs. Indeed, dogs and magnetometers are often employed in conducting constitutionally reasonable largescale “administrative” searches precisely because they are minimally intrusive, and provide an effective means for adducing the requisite degree of individualized suspicion to conduct further, more intrusive searches. The type of search that the LRSD has decided to employ, in contrast, is highly intrusive, and we are not aware of any cases indicating that such searches in schools pass constitutional muster absent individualized suspicion, consent or waiver of privacy interests by those searched, or extenuating circumstances that pose a grave security threat. Another relevant consideration is the purpose for which the fruits of the searches at issue are used. In Vernonia and Earls, which involved drug testing of voluntary participants in competitive extracurricular activities, the results of the searches at issue were never disclosed to law enforcement authorities, and the most serious form of discipline that could possibly result from failing the tests was exclusion from the relevant extracurricular activities. . . . In sharp contrast to these cases, the fruits of the searches at issue here are apparently regularly turned over to law enforcement officials and are used in criminal proceedings against students whose contraband is discovered. In fact, Ms. Doe was convicted of a misdemeanor as a result of the search of her purse. Because the LRSD’s searches can lead directly to the imposition of punitive criminal sanctions, the character of the intrusions is qualitatively more severe than that in Vernonia and Earls. Rather than acting in loco parentis, with the
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Public School Searches
goal of promoting the students’ welfare, the government officials conducting the searches are in large part playing a law enforcement role with the goal of ferreting out crime and collecting evidence to be used in prosecuting students. We consider finally the nature and immediacy of the governmental concerns that gave rise to the searches at issue here. A sliding scale is used in evaluating the reasonableness of a search, that is, the government is entitled to inflict more serious intrusions upon legitimate expectations of privacy as the governmental interest served by the intrusions becomes more compelling. . . . We conclude that the LRSD has in fact failed to demonstrate the existence of a need sufficient to justify the substantial intrusions upon the students’ privacy interests that the search practice entails. While the LRSD has expressed some generalized concerns about the existence of weapons and drugs in its schools, it conceded at oral argument that there is nothing in the record regarding the magnitude of any problems with weapons or drugs that it has actually experienced. . . . While the line separating reasonable and unreasonable school searches is sometimes indistinct, we think it plain enough that the LRSD’s search practice crosses it. In light of the government’s legitimate interest in maintaining discipline and safety in the public schools, the privacy that students in those schools are reasonably entitled to expect is limited. The LRSD’s search practice, however, effectively reduces these expectations to nothing, and the record contains no evidence of unique circumstances that would justify significant intrusions. The mere assertion that there are substantial problems associated with drugs and weapons in its schools does not give the LRSD carte blanche to inflict highly intrusive, random searches upon its general student body. We therefore reverse the judgment of the district court, and we remand for entry of a judgment not inconsistent with this opinion.
CASE NOTES 1. Field Trip Search. Some schools have established procedures for searching student baggage before departing on field trips. These searches have been challenged, and currently the courts are split, with one pre-T. L. O. decision finding the searches unreasonable because they were not “particularized with respect to each
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individual searched.” In this case, the court believed such procedures to be “fishing expeditions” with no reasonable suspicion as a basis for the searches. Kuehn v. Renton School District No. 403, 103 Wash. 2d 594, 694 P.2d 1078 (1985). The other case, a post-T. L. O. ruling, found that the search of hand luggage prior to a field trip was justified under the Fourth Amendment. This court held that there is a legitimate interest of school administrators in deterring students from taking contraband on field trips: “[T]he deterrent effect of the board’s search policy advances a legitimate interest . . . in preventing students from taking contraband. . . .” The fact that this deterrence is not perfect because students can hide some contraband (e.g., small quantities of drugs) does not render the search unconstitutional. Desilets v. Clearview Regional Board of Education, 265 N.J. Super. 370, 627 A.2d 667 (1993). 2. An illustrative case arose in Florida where New York high school students took a schoolsponsored field trip to Disney World. The students were notified prior to the trip that they were subject to “room checks.” A chaperone passed a large number of students in the hotel hallway and detected a strong odor of marijuana. A search of the rooms uncovered marijuana and alcohol, whereupon the students were sent home and subsequently suspended from school. The court ruled the search was constitutionally reasonable. The court wrote, “. . . this case impels us to conclude that in a school-sponsored trip, where the students have signed waivers promising not to use drugs or alcohol, where they have been specifically informed that room checks will be conducted, where the school staff travels far from home with these students and thus is acting in loco parentis, and where a school official smells marijuana around a cluster of students outside one of their rooms, and thus has strong reason to believe that his wards are engaging in illegal activity, it is reasonable to ask hotel security to open the students’ rooms and to search them.” Rhodes v. Guarricino (S.D. N.Y. 1999). 3. Personal Seizure. Seizure under the Fourth Amendment is not confined to seizure of things, but may refer also to seizure of the person. A momentary use of physical force by
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a teacher in restraining a student is not a personal seizure. However, where a student was placed in a conference room and told not to leave and was retained there for a few hours, the court said that such constituted a seizure. Yet, a seizure may take place with no violation of a constitutional right. Although seizures at law are usually justified only with probable cause, in public schools seizure is governed by the reasonableness standard, a more lenient standard. Therefore, forcing a student to remain in a small conference room for about four hours while school officials investigated a sexual misconduct allegation against the student was not found to be unreasonable. The reasonableness of a detainment takes into account the circumstances for the confinement as well as the conditions imposed during confinement. In the case of the student’s four-hour detainment, the boy was permitted to do his homework, have lunch in the cafeteria, and to get water to drink whenever he pleased. His detainment did prevent him from going about the school freely and attending classes. Such conditions of confinement, according to the court, were reasonable. Shuman v. Penn Manor School District, 422 F.3d 141 (2005). 4. An informant’s tip that another student had secreted drugs on her person was not sufficient to establish reasonable suspicion supporting a search. Phaneuf v. Fraikin, 448 F.3d 591 (2nd Cir. 2006).
Annual, School-Wide Cleanout of Lockers Permissible Despite Student’s Privacy Interest and the Lack of Individualized Suspicion
State of Iowa v. Jones Supreme Court of Iowa, 2003. 666 N.W.2d 142.
CADY, Justice. In this appeal, we consider a number of issues arising from the search of a high school student’s locker in light of the state and federal
constitutional prohibitions against unreasonable search and seizure. After considering the search conducted in light of the balance between the student’s privacy interest and the interest of the school in maintaining a proper educational environment, we conclude that the search was permissible and the district court erred in suppressing evidence obtained in the course of the search. . . . . . . On December 20, 2001, teachers and administrators at Muscatine High School attempted to complete an annual pre-winter break cleanout of the lockers assigned to each student at the school. The students were asked three to four days before the cleanout to report to their locker at an assigned time to open it so a faculty member could observe its contents. The general purpose of the cleanout was to ensure the health and safety of the students and staff and to help maintain the school’s supplies. Accordingly, faculty assigned to examine the lockers kept an eye out for overdue library books, excessive trash, and misplaced food items. They also watched for items of a more nefarious nature, including weapons and controlled substances. The cleanout functioned as expected for approximately 1400 of the 1700 students at the school. However, a sizeable minority—including the appellee, Marzel Jones—did not report for the cleanout at their designated time. The next day, two building aides went around to the lockers that had not been checked the day before. Acting pursuant to rules and regulations adopted by the school board, the aides opened each locker to inspect its contents. The aides did not know the names of the students assigned to the lockers they were inspecting. One of the lockers they opened contained only one item: a blue, nylon coat, which hung from one of the two hooks in the locker. Apparently curious about its ownership and concerned that it might hold trash, supplies, or contraband, one of the aides manipulated the coat and discovered a small bag of what appeared to be marijuana in an outside pocket. The aides then returned the coat to the locker and contacted the school’s principal. After cross-checking the locker number with records kept by the administration, the principal determined the locker in which the suspected marijuana was found belonged to Jones. The principal and aides then went to Jones’ classroom
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Public School Searches
and escorted him to his locker. Jones was asked to open the locker and, after doing so, was further asked if anything in the locker “would cause any educational or legal difficulties for him.” Jones replied in the negative. The principal then removed the coat from the locker. Jones grabbed the coat, struck the principal across the arms, broke free from him, and ran away. The principal gave chase and, after three attempts, captured and held Jones until the police arrived. The police retrieved the bag and determined that it held marijuana. Jones was later charged with possession of a controlled substance in violation of Iowa Code section 124.401(5) (2001). He subsequently filed a motion to suppress the evidence—the marijuana—obtained during the search of his locker. He claimed that the search violated his right to be free from unreasonable search and seizure pursuant to the Fourth Amendment of the United States Constitution and article I, section 8 of the Iowa Constitution. The lone witness at the suppression hearing was the principal of the high school, who testified about school policy relating to search and seizure and the events of December 20 and 21. The district court granted the motion to suppress. It found that the school officials did not have reasonable grounds for searching Jones’ coat pocket. The State filed a motion requesting the judge reconsider and alter his decision. The motion was denied. The State then sought discretionary review, which we granted. . . . . . . As we have recognized on numerous occasions in the past, “the Fourth Amendment exists to protect the right of the people to be free from unreasonable searches and seizures by government officials.” . . . The Iowa Constitution also contains a search and seizure clause that is virtually identical to the Fourth Amendment. Compare Iowa Const. art. I, § 8, with U.S. Const. amend. 4. Accordingly, we usually interpret “the scope and purpose of article I, section 8, of the Iowa Constitution to track with federal interpretations of the Fourth Amendment.” . . . The essential purpose of both constitutional provisions “is to impose a standard of reasonableness” upon the exercise of discretion by government officials . . . in order “to safeguard the privacy and security of individuals against arbitrary invasion.” . . . In light of this purpose, we have delineated a two-part test that applies
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in most cases requiring the determination of whether particular governmental action violates the constitutional search and seizure provisions. See id. at 106 (describing our usual search and seizure analysis focused on the expectation of privacy and the reasonableness of an invasion of that privacy). However, we believe the specific facts of this case warrant an analysis that is more focused than our general approach. As we observed in another context involving a search and seizure question, “it has been clear that the location of property seized by authorities may be of critical importance in determining whether the search and seizure were lawful.” . . . With this in mind, it is significant in this case that the search of Jones’ locker occurred on school grounds. . . . We believe the locker search conducted by the school officials in this case is most closely analogized to the broad searches conducted in Acton and Earls. Although this search eventually focused on Jones’ locker, the process leading to that point was random and carried out with the purpose of protecting the health and safety of the whole student body to preserve a proper educational environment. Although T. L. O., Acton, and Earls each provide helpful insight on search and seizure in schools, it is the sum of their holdings, crystallized in the Court’s opinion in Earls, from which our analysis must launch. Under the Earls analysis, we must consider three factors: (1) “the nature of the privacy interest allegedly compromised” by the search, (2) “the character of the intrusion imposed by the [search] [p]olicy,” and (3) “the nature and immediacy of the [school’s] concerns and the efficacy of the [search] [p]olicy in meeting them.” . . . The upshot of this analysis, as is evidenced by the controversy arising in the present case, is that “[e]vidence obtained in violation of the Fourth Amendment is inadmissible at trial under the exclusionary rule.” . . . The district court considered the search of Jones’ locker in light of a test articulated by the Court in T. L. O. and suppressed the evidence found in Jones’ coat after concluding Jones had a reasonable expectation of privacy in the contents of his locker and that the search of the locker was unreasonable. Although we agree with some of the district court’s reasoning, we disagree with its application of T. L. O. alone and its conclusion that the search
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was unreasonable and the evidence should be suppressed. We turn now to our analysis of this appeal under the Earls factors. . . . In assessing the nature of the privacy interest in this case, it is imperative to remember this controversy arose within the school context “where the State is responsible for maintaining discipline, health, and safety.” . . . This reality has led the Court to acknowledge that “[s]ecuring order in the school environment sometimes requires that students be subjected to greater controls than those appropriate for adults.” . . . Although this may be the case, we do not believe it can be said that students have no expectation of privacy in a school setting, particularly in a location such as a locker. . . . The determination of the existence of a legitimate expectation of privacy is based on the unique facts of each case, focusing on “whether the government’s intrusion infringes upon the personal and societal values protected by the Fourth Amendment.” . . . Some courts have concluded that there is no expectation of privacy in a student locker, particularly in situations in which there exists a school or state regulation specifically disclaiming any privacy right. . . . T. L. O. involved the search of a student’s purse, but a student’s locker presents a similar island of privacy in an otherwise public school. . . . Numerous permissible items of a private nature are secreted away within a locker on a daily basis with the expectation that those items will remain private. . . . In fact, Muscatine’s school policy effectively presumes this to be the case and protects this interest: in those situations in which the school seeks to search a locker, the school’s rules contemplate the presence of the student or at least a “waiver” of the student’s opportunity to be present and supervising the search. Moreover, the school rules and state law related to search and seizure in schools are premised on a presumption of privacy; such legislation would likely be unnecessary if no expectation of privacy existed in the first place. Each of these factors indicates a broad societal recognition of a legitimate expectation of privacy in a school locker. Accordingly, we conclude that a student such as Jones has a measure of privacy in the contents of his locker. . . .
We must next “consider the character of the intrusion imposed by the [search] [p]olicy.” . . . The district court concluded the actions of the school officials were overly intrusive in light of what the court perceived to be unreasonable grounds to search Jones’ particular locker. However, we believe the locker search was not overly intrusive, especially in light of the underlying governmental interest and broader purpose of the search. The locker cleanout was premised on the need to maintain a proper educational environment, which school officials had determined was undermined by violations of school rules and potential violations of the law. Most students cooperated in the school’s efforts to check the lockers for such violations. Although there was no indication that students on the day of the original cleanout had the contents of their lockers searched, the students were also present and supervised by a teacher who was responsible for observing the contents of the locker and ensuring the cleanout functioned as planned. Moreover, the teacher supervisors surely could have communicated with a student present at the locker about its contents and taken further steps if the situation warranted. The search on the second day came under different circumstances. The advantage of carrying out the cooperative cleanout and inspection of the previous day had passed. Students who had been advised that they were to report to their lockers for a cleanout had failed to do so, and caused the school to switch to an alternative method to ensure the cleanout was achieved. On entering Jones’ locker, the only item in sight was the blue coat. The school officials believed that trash, supplies, or other items could be in the coat pockets, and did not have the advantage of turning to Jones to ask him about its contents, as they likely could have done the day before. For this reason, they decided to make a cursory check of the coat for such items. Although they found the bag of marijuana, they just as well could have found a banana peel. The scope of the search was supported by the underlying purpose of the search. While it is possible that there would have been alternative ways to check the coat’s contents, constitutional search and seizure provisions do not require the least intrusive action possible. . . .
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Public School Searches
Instead, they require a measure of “reasonableness, under all the circumstances.” . . . Under this standard, we conclude the search of the contents of Jones’ locker was not overly intrusive. . . . The education of the students of the State of Iowa is a profound responsibility vested, ultimately, in the capable hands of local teachers, administrators, and school boards. What may be a daunting task to begin with is only made more difficult by the presence of various distractions ranging from excessive trash and missing supplies to—potentially—more troublesome items, such as controlled substances or weapons. What was observed by the Court in T. L. O. nearly twenty years ago remains true—if not truer— today: “Maintaining order in the classroom has never been easy, but in recent years, school disorder has often taken particularly ugly forms: drug use and violent crime in the schools have become major social problems.” . . . These developments serve as the backdrop against which the conduct of school officials must be considered, especially as it relates to their duty to educate students while also protecting them from numerous threats to that mission. . . . (“Against the child’s interest in privacy must be set the substantial interest of teachers and administrators in maintaining discipline in the classroom and on school grounds.”) The principal of the school testified that the annual winter break locker cleanout was conducted by the school to prevent violations of both school rules related to the accumulation of trash and school supplies and the sharing of lockers and the law related to possession of controlled substances and weapons. School officials were aware that students tended to accumulate excessive trash and supplies in their lockers and sometimes shared the lockers against school policy. Moreover, they knew that if controlled substances or weapons were present in the school, either type of item would present a threat to the school environment that they were responsible for maintaining. To counteract the problems caused by these items, the school presented reasonable notice to the student body and attempted to check the lockers with student assistance. Some students, including Jones, did not follow this procedure and left the school with little choice of methods by which it could carry out what it considered
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to be a legitimate method by which school rules could be maintained. Although the school did not have individualized suspicion of rule or law violations before the locker cleanout operation, constitutional search and seizure provisions include no irreducible requirement that such suspicion exist. . . . Moreover, it would be contrary to the mission of our educational system to force schools to wait for problems to grow worse before allowing steps to be taken to prevent those problems. . . . Given the public school context in which this controversy arose and the present realities of public education, we conclude that the search conducted by school officials was proper. . . . . . . Although students are not stripped of constitutional protections in the school context, those protections must be balanced against the necessity of maintaining a controlled and disciplined environment in which the education of all students can be achieved. Thus, while students maintain a legitimate expectation of privacy in the contents of their school locker, that privacy may be impinged upon for reasonable activities by the school in furtherance of its duty to maintain a proper educational environment. The search of Jones’ locker was permissible in light of these principles, and the district court’s grant of a motion to suppress evidence obtained during the search was in error. For that reason, we reverse the decision of the district court and remand for further proceedings consistent with this opinion. Reversed and remanded.
CASE NOTES 1. Locker Search. The search of a high school student’s locker by an assistant principal was held to be reasonable where the inception of the search was justified based on a report by a teacher that the student was in possession of a large pot pipe. In re Juvenile, 156 N.H. 233, 931 A.2d 1229 (2007). 2. Video Cameras in Locker Room. In a 2008 decision, the U.S. Court of Appeals, Sixth Circuit, held that the school’s operating of video surveillance equipment in school boys’ and girls’ locker rooms constituted an unreasonable search. The students had a Fourth Amendment right not to be videotaped by school officials while they changed their clothes. Brannum v. Overton County School Board, 516 F.3d 489 (6th Cir. 2008).
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3. Police Search Lockers with School Permission. A school may give the police permission to search lockers. In a case where detectives presented a search warrant to the school principal, searched students, found nothing, and then, in a subsequent search of the students’ lockers, found four marijuana cigarettes, the court rejected a motion to suppress. The court stated: Indeed, it is doubtful if a school would be properly discharging its duty of supervision over the students, if it failed to retain control over the lockers. Not only have the school authorities a right to inspect, but this right becomes a duty when suspicion arises that something of an illegal nature may be secreted there. When Dr. Panitz [the principal] learned of the detectives’ suspicion, he was obligated to inspect the locker. This interest, together with the nonexclusive nature of the locker, empowered him to consent to the search by the officers.
People v. Overton, 20 N.Y.2d 360, 283 N.Y.S.2d 22, 229 N.E.2d 596 (1969), aff’d on reargument, 24 N.Y.2d 522, 301 N.Y.S.2d 479, 249 N.E.2d 366 (1969). 4. The law is well decided that a school search instigated by a police officer must be accompanied by a search warrant to be valid. However, gray areas of fact exist where proof must be adduced as to who actually initiated the search and for what reason. The validity of a
school-initiated search, not requiring a search warrant, rests on whether evidence can be produced by the defendant to show that the search “activities were at the behest of a law enforcement agency.” Where a vice principal of a school requested that a police liaison officer accompany her in the search of a locker of a particular student and the police officer, pursuant thereto, conducted a limited patdown search of the student, the court upheld the search as valid and said: The imposition of a probable cause warrant requirement based on the limited involvement of . . . [the police officer] would not serve the interest of preserving swift and informal disciplinary procedures in schools.
This court further noted that the pat-down search was justified and was conducted with “reasonable suspicion” based on evidence obtained earlier by the vice principal, and was therefore valid. Carson v. Cook, 810 F.2d 188 (8th Cir. 1987). 5. Identity of Informant. The school principal need not reveal the identity of the informant whose information led to his reasonable suspicion. The court said that the informant “was neither an essential witness on a basic issue in the case nor was he or she apparently
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Summation of Case Law
an active participant in the crime for which defendant is prosecuted.” State v. Biancamano, 284 N.J. Super. 654, 666 A.2d 199 (1995). 6. Establishing Reasonable Suspicion. A school resource officer paid by the sheriff’s office searched students on a request from the principal. The officer had no independent information, did not conduct an investigation, and searched solely on the principal’s request. No evidence was given by the principal as to why he thought the student should be searched. The court could not find either probable cause or reasonable suspicion. A. J. M. v. State, 617 So.2d 1137 (Fla. Dist. Ct. App. 1993). 7. Anonymous Call to Establish Reasonable Suspicion. Where a school administrator received an anonymous phone call indicating that a student “would be carrying a substantial amount of drugs including LSD with him at school that day” and the administration and teachers had previously expressed concern and suspicion that the pupil was distributing drugs, the pupil was searched, revealing marijuana, a semiautomatic pistol, and 121 “hits” of LSD. The court said, “The telephone call informing [the administrator] that the [pupil] would be carrying drugs to school that day, taken in light of existing suspicions of the defendant’s drug involvement, was more than enough to justify the inception of the search.” State v. Drake, 139 N.H. 662, 662 A.2d 265 (1995).
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Summation of Case Law
Reasonableness of Search 1. The Fourth Amendment’s prohibition on unreasonable searches and seizures applies to searches conducted by school officials. 2. The determination of a standard of reasonableness governing any specific class of searches requires balancing the need to search against invasion upon the individual which the search entails. 3. The accommodation of privacy interests of school children with the substantial needs of school officials for the freedom to maintain order in schools does not require strict adherence to the requirement that searches be based on “probable cause”; rather, legality of
4.
5.
6.
7.
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the search of a student should depend simply on “reasonableness.” Determining the reasonableness of any search involves a twofold inquiry: (1) Whether the action was justified at its inception and (2) whether the search as actually conducted was reasonably related in scope to the circumstances which justified the interference in the first place. Under ordinary circumstances, a search of a student by a teacher or other school official will be justified at its inception when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or rules of the school. A search of a student by a teacher or other school official is permissible in its scope when measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the sex of the student and the nature of the infraction. The search requirement of reasonable suspicion by school officials is not a requirement of absolute certainty; sufficient probability, not certainty, is the touchstone of reasonableness under the Fourth Amendment.
Strip Searches 1. Reasonable suspicion is established where a student is distributing contraband drugs, justifying search of the student’s backpack and outer clothing, where the principal knew that students were bringing drugs on campus. 2. A school official’s reasonable suspicion that a middle school student is distributing contraband drugs does not justify a strip search in which student was directed to pull out her bra and the elastic band of her underpants. 3. The search of a student as actually conducted must be reasonably related in scope to the circumstances which justified the interference in the first place. The scope will be permissible when it is not excessively intrusive in light of the age and sex of the student and the nature of the infraction. Random Searches 1. Where, at the time of the Fourth Amendment’s enactment, there was no clear practice, either approving or disapproving the type
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of a search, “reasonableness” of a search is, therefore, judged by the balancing of the intrusion on individual’s Fourth Amendment interest against the promotion of a legitimate governmental interest. 2. The state, in its role as schoolmaster of children, may exercise a degree of supervision and control greater than it could exercise over free adults for purpose of determining the reasonableness of a search. 3. Although public school children have lesser privacy expectations with regard to medical examinations and procedures than the general population, student athletes have even less legitimate expectation of privacy. 4. In the context of safety and administrative regulations, a random search unsupported by probable cause may be reasonable when “special needs,” beyond the normal need for law enforcement, make the search warrant and probable cause requirement impracticable.
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Research Aids
Research citations below are abbreviated as: American Law Reports (A.L.R.), American Jurisprudence (Am.Jur.), Corpus Juris Secundum (C.J.S.), and McQuillen Municipal Corporations (McQuillen Mun.Corp.). Explanations for each of these sources of law are found in Chapter 1 of this text. Also, see Appendix B of this book. 31 A.L.R. 5th 229. Search Conducted by School Official or Teacher as Violation of Fourth Amendment or Equivalent State Constitutional Provision. 68 Am.Jur.2d Searches and Seizures § 30 and § 39. 79 C.J.S. Searches § 20. Expectation of Privacy. 16B McQuillen Mun.Corp. (3rd ed.) § 46.22.40. Public Education: Constitutional Rights of Students—Protection Against Unreasonable Search and Seizure. 87 A.L.R. Fed. 148. Validity, Under Federal Constitution, or Regulations, Rules, or Statutes Allowing Drug Testing of Students. 78 C.J.S. Schools and School Districts § 1085. Control of Pupils and Discipline: Searches and Seizures. Law Reviews Ralph D. Mawdsley and Allan Osborne, “Strip Searches: What Is Their Constitutional Viability After the Supreme Court’s Redding Decision?” 252 Ed. Law. R. 21 (2010).
Laura Jarrett, “Excessively Intrusive in Light of Age or Sex?: An Analysis of Safford Unified School District No. 1 v. Redding and It’s Implications for Strip Searches in Schools,” 33 Harvard Journal of Law & Gender 403 (2010). John Dayton and Anne Proffitt Dupre, “Searching for Guidance in Public School Search and Seizure Law: From T. L. O. to Redding,” 248 Ed. Law. R. 19 (2009). Martha McCarthy, “Safford Unified School District v. Redding: Has the Supreme Court Clarified the Law Governing Strip Searches in Public Schools?” 247 Ed. Law. R. 565 (2009).
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Endnotes
1. Elkins v. United States, 364 U.S. 206, 80 S. Ct. 1437 (1960). 2. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684 (1961). 3. See Alexander and Alexander, American Higher Education Law (London: Routledge, 2011). 4. Amendment IV, 1791. 5. United States v. Hinton, 219 F.2d 324 (7th Cir. 1955). 6. 5 Am.Jur Trials § 331: Commonwealth v. Neilsen; 423 Mass. 75, 666 N.E.2d 948 (1996). 7. U.S. v. Marshall, 348 F.3d 281 (1st Cir. 2003). 8. United States v. Hyson, 721 F.2d 856 (1st Cir. 1983). 9. Ohio v. Robinette, 519 U.S. 33, 117 S. Ct. 417, 148 A.L.R. Fed (1996). See: 2003 A.L.R. 5th 12 (2003). 10. Groh v. Ramirez, 540 U.S. 551, 124 S. Ct. 1284 (2004); U.S. v. Uscanga-Ramirez, 475 F.3d 1024 (8th Cir. 2007). 11. 2003 A.L.R. 5th 12 (2003). 12. Elkins v. United States, 364 U.S. 206, 80 S. Ct. 1437 (1960). 13. Ibid. 14. Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684 (1961). 15. Elkins v. United States, op. cit. 16. United States v. Calandra, 414 U.S. 338, 94 S. Ct. 613 (1974) (dissent). 17. See Mary Jane Connelly, “Search and Seizure in Education,” Ph.D. dissertation, Virginia Tech University, 1982. 18. Black’s Law Dictionary (St. Paul, Minn.: West, 1968), p. 1616. 19. Levy, op. cit., p. 242. 20. Ibid. 21. Bellnier v. Lund, 438 F. Supp. 47 (N.D.N.Y. 1977). 22. State v. Stein, 203 Kan. 638, 456 P.2d 1 (1969), cert. denied, 397 U.S. 947, 90 S. Ct. 966 (1970). 23. New Jersey v. T. L. O., 469 U.S. 325, 105 S. Ct. 733 (1985). 24. Ibid. 25. R.D.L. v. State, 499 So.2d 31 (Fla. Dist. Ct. App. 1986). 26. State v. Slattery, 56 Wash. App. 820, 787 P.2d 932 (1990). 27. Shamberg v. State, 762 P.2d 488 (Alaska Ct. App. 1988). See also Coffman v. State, 782 S.W.2d 249 (Tex. Crim. App. 1989). 28. Wynn v. Board of Education of Vestavia Hills, 508 So.2d 1170 (Ala. 1987). 29. People v. William G., 709 P.2d 1287 (S. Ct. Calif. 1985).
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Quoted Box Citations 30. Cales v. Howell Public Schools, 635 F. Supp. 454 (E.D. Mich. 1985). 31. Safford Unified School District v. Redding, ___ U.S. ___, 129 S. Ct. 2633 (2009). 32. New Jersey v. T. L. O., op. cit. 33. Kuehn v. Reston School District No. 403, 103 Wash. 2d 594, 694 P.2d 1078 (1985). 34. Burnham v. West, 681 F. Supp. 1169 (E.D. Va. 1988). 35. Safford Unified School District No. 1 v. Redding, op. cit. 36. Ibid. 37. Ibid. 38. Ibid. 39. Ibid. 40. Vernonia School District 47J v. Acton, 515 U.S. 646, 115 S. Ct. 2386 (1995). 41. Board of Education of Independent School District No. 92 v. Pottawatomie County v. Earls, 536 U.S. 822, 122 S. Ct. 2559 (2002). 42. Ibid. 43. Ibid. 44. Ibid. 45. Levy, op. cit., p. 244. 46. B.C. v. Plumas Unified School District, 192 F.3d 1260 (9th Cir. 1999). 47. Zamora v. Pomeroy, 639 F.2d 662 (10th Cir. 1981). 48. Doe v. Renfrow, 475 F. Supp. 1012 (N.D. Ind. 1979), rev’d on other grounds, 631 F.2d 91 (7th Cir. 1980), reh’g denied, 635 F.2d 582, cert. denied, 451 U.S. 1022, 101 S. Ct. 3015 (1981). 49. Jones v. Latexo Independent School District, 499 F. Supp. 223 (E.D. Tex. 1980). 50. Horton v. Goose Creek Independent School District, 690 F.2d 470 (5th Cir. 1982). 51. Ibid. at 475.
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52. Ibid. at 477. 53. Ibid. at 481–82. 54. In Interest of F. B., 658 A.2d 1378 (S. Ct. PA 1995). 55. People v. Pruit, 662 N.E.2d 540 (Ill. App. Ct. 1996). 56. Ibid. at 547. 57. People v. Dukes, 580 N.Y.S. 2d 850 (N.Y. Crim. Ct. 1992). See also Giving Advance Notice of Metal Detector Searches Discussion in 75 Ops. Cal. Atty. Gen. 155. 58. Commonwealth v. Smith, 72 Mass. App. Ct. 175, 889 N.E.2d 439 (Mass. App. Ct. 2008). 59. People v. Dukes, 151 Misc. 2d 295, 580 N.Y.S.2d 850 (NY City Crim.Ct. 1992). See: 16B McQuillen Mun.Corp. (3rd ed. § 46.22.40). 60. Williams by Williams v. Ellington, 936 F.2d 881 (6th Cir. 1991). 61. Doe v. Renfrow, op. cit. 62. Knisley v. Pike County Joint Vocational School District, 604 F.3d 977, (6th Cir. 2010). 63. Beard v. Whitmore Lake School District, 402 F.3d 598 (6th Cir. 2005). 64. Bell v. Marseilles Elementary School, 160 F. Supp. 2d 883 (2001). 65. Ibid. 66. Ibid.
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Quoted Box Citations
Safford Unified School District v. Redding, ___ U.S. ___, 129 S.Ct. 2633 (2009). ATTRIBUTION LANGUAGE: © 2010 Signe Wilkinson. Used with the permission of Signe Wilkinson and the Washington Post Writers Group in conjunction with the Cartoonist Group. All rights reserved.
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CHAPTER 10
Student Rights: Common Law, Constitutional Due Process, and Statutory Protections It is procedure that spells much of the difference between rule of law and rule of whim or caprice. —Justice William O. Douglas There is to be no corporal punishment, it is a criminal offence for tutors to strike their pupils: they are gentlefolk. —Frederick the Great of Prussia
CHAPTER OUTLINE ■
INTRODUCTION
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COMMON LAW AND THE STUDENT
The Eighth Amendment Liberty Interests
Reasonableness
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Zero Tolerance
In Loco Parentis ■
CONSTITUTIONAL DUE PROCESS
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SUBSTANTIVE DUE PROCESS
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SEXUAL HARASSMENT OF STUDENTS
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CHILD ABUSE
Deliberate Indifference
More-Specific-Provision Rule
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PROCEDURAL DUE PROCESS
Conscience Shocking
Reporting
Extension of Substantive Due Process
Penalty for Failure to Report
CORPORAL PUNISHMENT AND SUBSTANTIVE DUE PROCESS
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SUMMATION OF CASE LAW
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RESEARCH AIDS
Student Discipline at Common Law
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Common Law and the Student
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Introduction
Students’ interests in attending public schools are protected by common law, by federal and state constitutions, and by statutes enacted by Congress and state legislatures. These sources of the law define the legal relationships between schools and students. In this chapter, we will explore the context of these relationships in common law, due process of law of the U.S. Constitution, and federal statutory provisions that prohibit sexual harassment and child abuse. Students in public schools are direct beneficiaries of the requirements of the Fourteenth Amendment, which states: “[N]or shall any State deprive any person of life, liberty or property without due process of law.” The intent of this constitutional provision is to prevent government or its agencies from taking away liberties and freedoms without fair procedure. The expectation of this constitutional provision is that a school, as a governmental agency, will act impartially as a neutral decision maker in protecting the interests of the student, while at the same time advancing the social interests of the people of the state in conducting an efficient public school system. Beyond constitutional provisions that protect the interests of the child in his or her relationship with the school, federal and state statutory provisions abound. As we have indicated in earlier chapters of this book, state statutes form the entire structure of public schools, whereas federal statutes form a gloss on the basic state laws designed to enhance constitutional freedoms and liberties. Importantly, among these federal statutes are the civil rights laws, including Title IX of the Education Amendments of 1972 and Title VII of the Civil Rights Act of 1964, both of which are designed to protect students and employees from sex discrimination in the workplace and in education programs. Important litigation and student protections have evolved from these statutes. In addition, state legislation prohibiting child abuse is highly significant in the protection of students. The public school, as the most important governmental mechanism for the advancement and protection of the nation’s youth, plays a vital role in enforcement of state child abuse laws. Within the range of constitutional
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and statutory protections is the groundwork of common law formed by generations of court decisions that serve the students’ interests in providing a safe school environment that is conducive to learning and the productive pursuit of knowledge. In this chapter, we will devote our attention to these important aspects of students’ protections, which evolve from common law, constitutional due process, and sex discrimination and child abuse statutes.
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Common Law and the Student
Throughout the years, court decisions have established a common law of the school, under which the teacher and the student have mutual responsibilities and obligations. The mutuality of the relationship is predicated on society’s expectations of the school in the advancement of the common good of the community. The teacher ’s responsibility is diverse and multifaceted, owing both to the community and to the student. The courts have recognized that in order for teachers to address the diversity of expectations placed upon them, they must be given sufficient latitude in the control of the conduct of the school for an appropriate decorum and learning atmosphere to prevail. In keeping with this objective, the courts have allowed teachers general control over students in the school setting. Edwards has summarized the view of the courts with regard to the teacher ’s authority by observing, “There is inherent in his position the authority to govern the school in a reasonable and humane way. . . .”1 The reference to “inherent” authority means that the teacher does not derive all of his or her authority from direct enunciations of statute or regulation, but in addition, holds, by virtue of the special teacher–student relationship, a built-in obligation to promote the harmony of the school by requiring discipline while protecting and advancing the interests of the child. As such, the teacher has much latitude and discretion to advance learning and to prohibit disharmonies inimical to learning. Within this scope is constituted the common law of the school. The Wisconsin Supreme Court has perhaps best
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explained the common law with regard to the teacher’s power and authority: While the principal or teacher in charge of a public school is subordinate to the school board or board of education of his district or city, and must enforce rules and regulations adopted by the board for the government of the school, and execute all its lawful orders in that behalf, he does not derive all his power and authority in the school and over his pupils from the affirmative action of the board. He stands for the time being in loco parentis to his pupils, and because of that relation, he must necessarily exercise authority over them in many things concerning which the board may have remained silent.2
On the other hand, the student has a corresponding and reciprocal obligation to the school not only to partake of its benefits, but also, by action and deed, to assist in the advancement of its purposes and causes. The student fulfills this obligation by respecting school decorum and by exhibiting the conduct and manners appropriate to the educational setting. This behavior requires a degree of subordination of the student’s individual freedoms for the general good and lawful purposes of the school. The student’s responsibility has been clearly defined by the aforementioned Wisconsin court: In the school, as in the family, there exist on the part of the pupils the obligations of obedience to lawful commands, subordination, civil deportment, respect for the rights of other pupils and fidelity to duty. These obligations are inherent in any proper school system, and constitute, so to speak, the common law of the school, and every student is subject thereto, whether or not such laws have been reenacted by the district board in the form of written rules and regulations. Indeed it would seem impossible to frame rules which would cover all cases of insubordination and all acts of vicious tendency which the teacher is likely to encounter daily and hourly.3
The situation of the student in school is not significantly different from that of the citizen in society; some reduction in individual freedom is necessary throughout society. In fact, a commonwealth, or Latin civitas, is formed by individuals consenting to submit their wills for unity of the whole or common good.4 It is in this commonality of social purpose of the public schools that creates the obligations and responsibilities on the part of the school, the teacher, and the student.
The common good is advanced by the common law of the school, which prescribes acceptable social conditions and standards for the operation of the schools. Thus, the common law of the school, as prescribed by extensive judicial precedent, reflects a synthesis, characterized by the school, wherein the highest interest of the individual and the preeminent interest of the community coincide.5 The student, “[i]n pursuing his own interest, . . . pursues that of the community, and in promoting the interest of the community, he promotes his own.”6 This “harmony of interests”7 is defined and furthered by the common law of the public school. Therefore, we may understand in the context of both law and philosophy the reasoning of the common law, which conveys to the teacher the authority to maintain an orderly atmosphere of learning, a benefit to both the students and the community. The rule of law, as enunciated by an early Missouri court, is thus clearly understood: The teacher of a school as to the children of his school, while under his care, occupies, for the time being, the position of parent or guardian, and it is his right and duty not only to enforce discipline to preserve order and to teach, but also to look after the morals, the health and the safety of his pupils; to do and require his pupils to do whatever is reasonably necessary to preserve and conserve all these interests. . . .8
REASONABLENESS The reasonableness of a school rule in the control of students has at least two aspects—the jurisdictional reach of the school’s authority beyond the school grounds and the nature and degree of the discipline visited upon the student. Reasonableness is the common law watchword of the teacher–student relationship. To act reasonably is the primary test of tort law and is a favorite definition of proper and expected conduct in society generally. The meaning of reasonableness in the abstract is difficult to determine, but when coupled with facts found in scholastic circumstances, the term usually takes on greater lucidity. In its detached sense though, it means that which is proper, rational, and fair; precluding conduct that can be characterized as immoderate, excessive, and unsuitable
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Common Law and the Student
to the particular conditions or circumstances. Because the authority of the teacher cannot be completely circumscribed by state law or by school regulations, and because every eventuality in school cannot be anticipated by applicable rules, considerable judicial flexibility must be allowed in determining reasonable behavior of the teacher. Further, the reciprocal responsibilities of the students must also be viewed in the context of reasonableness.
IN LOCO PARENTIS Though the term in loco parentis means “in the place of a parent,” the courts have never intended that school authorities or teachers stand fully in the place of parents in relationship to their children. Most importantly, in loco parentis, as a common law concept, vests the teacher with the responsibility of protecting the interests of the child in the school environment. Prerogatives of school officials and teachers are circumscribed by and limited to school functions and activities. The concept emanated from English law, which governed the private schools of that country, usually giving schoolmasters extraordinary and sometimes unconscionable powers over pupil conduct. Even though the concept emanates from common law, the boundaries of the teacher ’s authority are marked by requirements of reasonableness and restraint. In his Commentaries, Blackstone observed that the teacher has only that portion of parental powers necessary for the conduct of the school.9 In Lander v. Seaver,10 the Vermont Supreme Court made the cogent point that the power of the teacher over the child is not coextensive with that of the parent.11 Importantly, this court observed that because the teacher does not have the natural affection of the parent for the child, his or her acts of discipline must be viewed circumspectly by the courts. Because the teacher has no innate natural parental concern for the child, “he may not be trusted with all a parent’s authority. . . .”12 Nevertheless, even with its limitations, the doctrine of in loco parentis, as an aspect of common law, is viable and operates to help define the relationship between school and student in the public schools today. Its justification is found in the necessity for an orderly and well-behaved student in keeping with an agreeable learning
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environment. The doctrine is probably best defined by a Nebraska court as follows: [G]eneral education and control of pupils who attend public schools are in the hands of school boards, superintendents, principals, and teachers. This control extends to health, proper surroundings, necessary discipline, promotion of morality and other wholesome influences, while parental authority is temporarily superseded.13
Recent trends in constitutional law that bear on the interests of the student in the context of public school operation have more sharply defined the legal concept but have not replaced it. In New Jersey v. T. L. O., the U.S. Supreme Court held that although the in loco parentis doctrine did not exempt school officials from Fourth Amendment search-and-seizure restrictions, the doctrine “retains vitality in appropriate circumstances.”14 Other Supreme Court cases have also recognized the continuing viability of the doctrine.15 Significantly, the Supreme Court, in Bethel School District No. 403 v. Fraser, reiterated the importance of the in loco parentis doctrine in protecting children “especially in a captive audience from exposure to sexually explicit, indecent, or lewd speech.”16 Thus, not only does in loco parentis appear to be an active legal concept, but also in recent years it has taken on a new and more definitive meaning.
School District Policy on “Loitering” Is Not Unconstitutionally Vague or in Violation of First Amendment
Wiemerslage v. Maine Township High School District 207 United States Court of Appeals, Seventh Circuit, 1994. 29 F.3d 1149.
BAUER, Circuit Judge. Kurt Wiemerslage, a student at Maine Township High School South (“Maine South”) in Park Ridge, Illinois, was given a three-day suspension from school for violating the school’s
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anti-loitering rule. Alleging that the rule violated his constitutional rights under the First and Fourteenth Amendments, he filed suit under 42 U.S.C. § 1983. The district court dismissed his complaint for failure to state a claim. . . . We affirm. The Maine Township High School District 207 (“School District”) publishes a manual outlining its disciplinary procedures. That manual authorizes school administrators to designate certain areas as off-limits to students. In a letter dated August, 1992, Thomas J. Cachur, principal of Maine South, notified parents and students that the area adjacent to the school’s east side gate, referred to as the Hamlin Gate Area, continued to be off-limits to students. “While students can use this area to enter or leave the school campus before and after school, loitering is not permitted in this area.” Cachur ’s letter informed parents and students that violation of this rule would result in a three-day suspension. The policy was apparently the result of complaints made by residents in the vicinity concerning the students’ disregard for neighborhood property and traffic safety. On September 23, 1992, shortly after school had ended for the day, Wiemerslage, a Maine South freshman, was standing with some friends outside of the Hamlin Gate on Gillick Street between Hamlin and Home Avenues. The students were discussing their plans for that afternoon when they were approached by Thomas Swoboda, a security officer retained by the School District. Swoboda took their names and cited them for violating the school’s rule against loitering. Judy Bovenmyer, Dean of Students at Maine South, informed Wiemerslage and his parents that he had been found in violation of the disciplinary rule and that he was suspended from school for three days. After meeting with Bovenmyer, Wiemerslage’s parents asked to meet with Cachur. Dissatisfied with the results of this meeting, the Wiemerslages then requested, as was their right, a formal hearing before an officer of the School District. Upon completion of the hearing, the School District upheld the school’s decision to suspend Wiemerslage. . . . Wiemerslage argues that the disciplinary rule is rendered unconstitutionally vague by its use of the term “loitering” to define the
prohibited conduct. Laws declared unconstitutional on vagueness grounds may offend due process in different ways. By failing to articulate with any specificity the conduct to be proscribed, vague laws might not provide fair warning. . . . Moreover, vague laws inevitably confer on law enforcement and judicial officers an inordinate amount of discretion which easily translates into arbitrary or even discriminatory application. . . . Worth noting, however, is that flexibility or breadth should not necessarily be confused for vagueness. “There is little doubt that imagination can conjure up hypothetical cases in which the meaning of [disputed] terms will be in nice question.” . . . A vagueness challenge must be considered in the context of the rule at issue. As framed by the Supreme Court, the inquiry is whether the law defines the proscribed conduct “with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” . . . Given the peculiar issues facing school administrators, a school’s disciplinary rules need not be drafted as narrowly or with the same precision as criminal statutes. . . . In this instance, Maine South students entering and leaving school through Hamlin Gate presented school officials with two problems. First, there was a concern for the students’ own safety because of the traffic in the area. Second, residents in the vicinity reported damage to their properties as a result of students milling about the area. To address these twin concerns, school officials prohibited students from congregating in a specific area as a means of inducing them to proceed wherever it was they were going. Maine South’s response to these problems was appropriate. Personal safety and damage to property are two legitimate reasons to regulate speech and assembly. . . . The rule drafted by Maine South was narrowly tailored in that it was limited to a confined space and proscribed conduct regardless of its expressive content. Wiemerslage fails to allege facts which render these restrictions constitutionally unreasonable. Maine South’s anti-loitering rule was not designed to prevent student speech or assembly. Wiemerslage does not articulate why the school’s
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Substantive Due Process
concerns for safety and property damage were somehow outweighed by his need to exercise his rights of free speech and assembly in the Hamlin Gate area. Nor does he explain why the rule was overly broad. Consequently, his claim alleging violations of the First Amendment was properly dismissed. Because Wiemerslage’s complaint fails to state a claim upon which relief can be granted, the trial court’s decision to dismiss the complaint is Affirmed.
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Constitutional Due Process
As pointed out previously, the Fourteenth Amendment to the federal Constitution provides that no state shall deprive a person of life, liberty, or property without due process of law. Stated positively, a state may deprive a person of life, liberty, or property so long as the individual is given due process. There are two types of due process. One is called procedural due process. This means that if a person is to be deprived of life, liberty, or property, a prescribed constitutional procedure must be followed. The U.S. Supreme Court has said that in order to give an individual procedural due process as required by the federal Constitution, three basic factors must be present. The person must have proper notice that he or she is about to be deprived of life, liberty, or property; he or she must be given an opportunity to be heard; and the hearing must be conducted fairly. A second type of due process is called substantive due process. To satisfy this constitutional requirement, if a state is going to deprive a person of life, liberty, or property, the state must have a valid objective, and the means used must be reasonably calculated to achieve that objective. Succinctly, substantive due process “asks whether the government has an adequate reason for taking away a person’s life, liberty or property.”17 Early interpretations by the U.S. Supreme Court recognized only the procedural aspects of due process of law.18 It was not until 1923 in Meyer v. Nebraska (see Chapter 7) that the Supreme Court arrived at a reasonably clear definition that due process of law is an aspect of the law that possesses “substantive” protections. 19
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Due Process of Law
Substantive Due Process
Procedural Due Process
Substantive due process was defined by one court as follows: The phrase “due process of law,” when applied to substantive rights, as distinguished from procedural rights, means that the state is without power to deprive a person of life, liberty or property by an act having no reasonable relation to any proper governmental purpose, or which is so far beyond the necessity of case as to be an arbitrary exercise of governmental power.20
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Substantive Due Process
As early as 1798, the justices of the U.S. Supreme Court debated whether there were implicit natural law protections, beyond the explicit wording of the U.S. Constitution, that extended the rights of individuals and limited the powers of government.21 At that time, the issue was argued as to whether the justices had the authority to interject unwritten standards of justice into the meaning of the Constitution in order to protect the rights of the people from heavy-handed government. Advocates for the extension of constitutional intent maintained that there is a moral law beyond the words specified in the Constitution, a substantive aspect that protects individual rights of liberty, equality, and justice.22 Various legal philosophers, including Locke, had earlier posited that the state is created to protect natural rights and to guarantee justice and that social compacts that bind the people to a government should be a restraint on governmental excesses and should not be so strictly construed as to prevent recognition of a broader array of individual rights and freedoms.23 Accordingly, proponents of natural law have argued that there is an implicit meaning in
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the Constitution that individual rights are not those merely established within the text of the document itself, but also include all those natural and moral rights that pertain to fairness, equity, and the pursuit of happiness.24 Justice therefore requires that the courts look not simply to the explicit content of the Constitution, but also to the “substance” of the Constitution that is implicit in human rights of transcending moral consequence. Therefore, judges of the natural law persuasion believe that substantive due process should be open-ended and expanded as the courts deem necessary to protect individual rights, regardless of whether the protection can be premised on some explicit constitutional provision. In this view, the Supreme Court should “invalidate legislation if the justices [believe] that it [interferes] with rights that the natural law [has] vested in the people.”25 The constitutional vehicle for the inclusion of the natural law concept is “substantive due process.” Those who oppose the expansion of substantive due process and the theory of natural law maintain that the courts should exercise judicial restraint and that even if natural law is an acceptable theory, there is no valid power of the courts to enforce such a standard over the will of the people as expressed by governmental statute. In essence, those who oppose the idea of substantive due process contend that “the courts have no role in enforcing natural law principles because enforcement of such principles would result in the subservience of the people to the individual views of the justices.”26 Between these two extremes, the constitutional law developed, not fully adopting either position. A string of constitutional law precedents over two hundred years, coupled with the enactment of the Fourteenth Amendment in 1868, has led the Supreme Court to adopt a modified natural law approach that incorporates implicit meaning into due process. The evolution of precedents has resulted in a judicial philosophical compromise that holds that laws should be invalidated only if there exists some reasonable linkage to specific constitutional provisions. For example, even though the Equal Protection Clause of the Fourteenth Amendment was enacted as a “protective shield” to blacks against laws that unfairly discriminated against them, the Court has expanded the substantive
meaning to protect certain economic groups and other individuals as well.27 Substantive due process was given important impetus by subsequent interpretations of the Fourteenth Amendment that expanded on the idea of due process and its relationship to equal protection.28 Today, the Supreme Court strictly reviews statutes and regulations that affect essential and fundamental rights even though the precise wording referring to those rights is not specifically used in the Constitution. For example, there is a fundamental “right to privacy” even though the terminology is not used anywhere in the Constitution.29 In Griswold v. Connecticut,30 Justice Douglas noted that such a right, although not explicit, is found in the “penumbras” of several guarantees of the Bill of Rights.31 In Griswold, Justice Harlan specifically justified a right of privacy based on natural law theory, which permitted the judiciary to select values that were of such philosophical and historical importance that they could be regarded as fundamental.32 In the same case, Justice Black dissented, objecting to the natural law approach in defining due process, and he concluded that there was no substantive right of privacy in the Constitution.33 As noted earlier in this text, the Supreme Court in Pierce v. Society of Sisters34 found a substantive right in due process with regard to the property of a private school. Later, however, the Court in Prince v. Massachusetts35 refused to expand substantive parental rights in child rearing to limit the state’s interest in establishing child labor and compulsory attendance laws. In Meyer v. Nebraska,36 in 1923, the Supreme Court related substantive protection of the Due Process Clause of the Fourteenth Amendment to education when it held unconstitutional a Nebraska statute forbidding the teaching in public or private schools of foreign languages to pupils below the eighth grade. Because the U.S. Constitution provided no express relief for offending the statute, the Court extended the Due Process Clause to protect the teacher. The Court related the teacher’s right to teach to an expanded substantive interpretation of “liberty” and said: The problem for our determination is whether the statute as construed and applied unreasonably infringes the liberty guaranteed to the Plaintiff . . .
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Substantive Due Process by the Fourteenth Amendment. “No state shall . . . deprive any person of life, liberty, or property, without due process of law.” While this court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. . . . The established doctrine is that this liberty may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the State to effect. . . . [The teacher ’s] right thus to teach and the right of parents to engage him so to instruct their children, we think, are within the liberty of the Amendment.37
With this decision, the Supreme Court not only acknowledged the substantive protections of due process covering life, liberty, and property, but also clearly extended them to protect a person’s right of education.38 From 1923 to 1961, there was no further development of education as a substantive due process interest. Generally during that period, the Meyer precedent was construed very narrowly, having little implication for education rights. However, an important case emerged in 1961 that indicated that education is a substantive interest of such magnitude as to invoke procedural due process if it is to be denied. In Dixon v. Alabama State Board of Education, 39 a federal court held that attendance at a college is so essential that it cannot be taken away without a hearing and attendant due process procedures. Without specifically saying so, this court implied that education is of such importance that it may be implied within the substance of the term liberty or property under the due process clause. Then, in Tinker v. Des Moines Independent School District,40 the Supreme Court explicitly recognized the substantive nature of due process rights of students:
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First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this court for almost fifty years.41
In spite of the impact of Dixon and Tinker, the relationship between education and due process was not clearly defined until 1975 in Goss v. Lopez, 42 where the Supreme Court pointed out that denial of education for even a short period of time could not be construed as inconsequential. In explaining that the individual’s interest in education falls within the substantive scope of “liberty and property,” the Court said, “[N]either the property interest in education benefits temporarily denied nor the liberty interest in reputation, which is also implicated, is so insubstantial that suspensions may constitutionally be imposed by any procedure one school chooses, no matter how arbitrary.”43
Substantive Due Process
Liberty
Property
The Supreme Court has explained the property interest in this way: Property interests . . . are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law—rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.44
In this regard, the federal Constitution does not create education as a fundamental right, but rather education becomes a “property” interest when state law establishes a public educational system, which all children have a right to attend. Where the right of attendance
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in public school is extended to all children throughout a state, the state then cannot selectively deny education without procedural due process. Thus, when the state creates a public educational system, education is effectively established as a property right or interest for all pupils. As observed earlier, due process also forbids the arbitrary deprivation of liberty or the denial of those interests that are implied by that term. A person’s liberty includes his or her “good name, reputation, honor, or integrity.” The Supreme Court in Meyer45 said that the Court would not attempt to give an exact definition for liberty, and in Roth, the Court said: Liberty and property are broad and majestic terms. They are among the great constitutional concepts. Purposely left to gather meaning from experience . . . , they relate to the whole domain of social and economic fact, and the statesmen who founded this Nation knew too well that only a stagnant society remains unchanged.46
In Goss v. Lopez, 47 where it was found that procedural due process had not been afforded, the Supreme Court ruled that the recording of suspensions in student permanent files effectively attached a stigma infringing on the students’ liberty interests. The Court said: “If sustained and recorded, those charges could seriously damage the students’ standing with their fellow pupils and their teachers as well as interfere with later opportunities for higher education and employment.”48
Due Process Clause of the Fourteenth Amendment. In a 1998 case, County of Sacramento v. Lewis,50 Justice Souter noted that the Supreme Court has “always been reluctant to expand the concept of substantive due process”51 and that plaintiffs could not invoke it in every case: “[W]here a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of governmental behavior, that Amendment, not the more generalized notion of substantive due process, must be a guide for analyzing these claims.”52 More directly, Justice Souter explained that the Supreme Court’s rule “simply requires that if a constitutional claim is covered by a specific constitutional provision, such as the Fourth and Eighth Amendment, the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process.”53 Justice Souter further explained that constitutional provisions requiring due process of law were intended to “secure the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private right and distributive justice.”54 Due process protects against governmental arbitrariness whether it has to do with taking of property, denial of a governmental benefit, imprisonment, or any other exercise of governmental power without any reasonable justification.55
CONSCIENCE SHOCKING MORE-SPECIFIC-PROVISION RULE Although acknowledging the continuing importance of substantive due process as a guard against arbitrary governmental action, the Supreme Court has more narrowly defined the circumstances in which it is to be utilized. In Graham v. Connor,49 the Supreme Court set out what it called the “more-specific-provision” rule. This rule forecloses the use of substantive due process as grounds for a constitutional claim if the claim can be couched in another more specific provision of the Constitution. For example, if a question of a valid exercise of free speech is at issue, then the governmental action must be challenged under the First Amendment, not the substantive aspect of the
Recent U.S. Supreme Court decisions, led by County of Sacramento v. Lewis, indicate that the “substantive component of the Due Process Clause is violated by executive action only when it ‘can properly be characterized as arbitrary,’ or conscience shocking, in a constitutional sense.”56 Whether a governmental action is “conscience shocking” must be determined based on the facts of each circumstance and the context of the events in question. The Supreme Court has said that “[r]ules of due process are not, however, subject to mechanical application in unfamiliar territory. Deliberate indifference that shocks in one environment may not be as patently egregious in another.” 57 That which constitutes a denial of fundamental fairness in
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Substantive Due Process
one circumstance may fall short of a denial of due process in other circumstances. Thus, in taking a more restrictive posture toward substantive due process, the Supreme Court has concluded that a plaintiff’s successful reliance on a constitutional challenge to governmental action requires that (1) there be no other “more-specific provision” in the Constitution under which the claim can be brought; (2) the allegations be sufficient to state a substantive violation through governmental abuse of power; (3) the governmental action be properly characterized as arbitrary, or conscience shocking, in a constitutional sense; and (4) the standard for arbitrary or conscience-shocking action be determined only by conditions and circumstances of the particular case because no general rule applies.
EXTENSION OF SUBSTANTIVE DUE PROCESS The concept of substantive due process remains rather tentative even today. According to Nowak, Rotunda, and Young, “All that can be said with certainty is that the justices have selected a group of individual rights which do not have a specific textual basis in the Constitution or its amendments and deemed them to be ‘fundamental.’”58 The substantive rights advanced by Supreme Court interpretations fall into at least six categories of fundamental guarantees. Nowak et al. set these out as follows:59 1. The freedom of association has been found to be a fundamental substantive right implicit in the First Amendment even though there is no direct textual reference to it.60 2. The right to vote and to participate in the electoral process has been deemed a form of substantive liberty under the Due Process Clauses of both the Fifth and the Fourteenth Amendments.61 3. The right of mobility and interstate travel has been given the status of a fundamental value and is considered to be a substantive right deriving from several provisions of the Constitution.62 4. The right of fairness in criminal process is a substantive due process right. This particular right overlaps the natural justice right of procedural due process as guaranteed by the Fifth and Fourteenth Amendments.63
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5. The right to fairness in recognition of individual rights emanating from deprivations of life, liberty, or property is recognized as a substantive right. Here, too, substantive and procedural due process tend to converge in that the Due Process Clauses intertwine the procedural rights of natural justice with the substantive rights of natural law. The nexus of the two elements of due process can be seen later in this text in discussions of student expulsion, 64 school finance, 65 and teacher rights.66 The specific substantive aspects of liberty and property as they apply to teachers will also be discussed later in this text. 6. The right to privacy, as mentioned earlier, is a substantive aspect of due process and includes various forms of freedoms and choices pertaining to the individual’s personal life. The right of privacy has been found in a person’s choice of marital decisions67 and childbearing.68 The Supreme Court’s use of substantive due process has generally subsided in favor of more extensive reliance on the Equal Protection Clause of the Fourteenth Amendment. In addition, the Supreme Court has evidenced a preference for looking to the nontextual inferences of the various amendments in the Bill of Rights, such as speech, expression, and press, rather than relying on expansion of the substance of liberty and property under the Due Process Clause.
Giving Students an “F” for Violating School Rules Is Not Violative of Substantive Due Process Where Action Does Not Shock the Conscience
Dunn v. Fairfield Community High School District No. 225 United States Court of Appeals, Seventh Circuit, 1998. 158 F.3d 962.
DIANE P. WOOD, Circuit Judge. Shaun Dunn and Bill McCullough were both budding musicians who participated as guitar
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players in the high school band program at Fairfield Community High School, operated by the defendant Fairfield Community High School District No. 225. (We refer to them both as “Fairfield,” as there is no distinction important to this appeal.) Fairfield prohibited its band members from departing from the planned musical program during band performances, and it specifically forbade guitar solos during the performances. In direct defiance of those rules and their teacher ’s explicit orders, Dunn and McCullough (along with two other students) played two unauthorized guitar pieces (instrumentals, with no words) at a February 10, 1995, band program. In due course, the discipline they received for this infraction caused them both to receive an “F” for the band course, and that “F” prevented McCullough from graduating with honors. . . . Dunn and McCullough have now appealed from the district court’s decision to grant summary judgment for Fairfield. While as a practical matter the school may have overreacted to the spectacle of two young musicians playing the “wrong” pieces, we conclude that its actions violated no right cognizable under the federal civil rights statutes, and we therefore affirm the district court. . . . There is little more to the underlying story than the facts we have just outlined. The students’ complaint alleged that Fairfield had violated their constitutional rights . . . , that it violated their “right to substantive due process . . . by imposing disciplinary measures unrelated to academic conduct and . . . outside the parameters and intent of the Illinois School Code and [Fairfield’s] disciplinary policy”. . . . The disciplinary action in question, the court concluded, bore a rational relation to the school’s interest in maintaining order and providing an education. The court also commented in a footnote that if the plaintiffs were to prevail, “[a]lmost every disciplinary action could become a federal case.” . . . Even though the students are entitled to this court’s de novo review of the summary judgment for Fairfield, this generous standard cannot salvage their case. The fundamental flaw in their theory of the case arises from their failure to appreciate the difference between the procedural protections afforded by the Fourteenth Amendment against state deprivations and the far more
limited substantive standards that Amendment imposes on state actors. If this had been a case (as it is not) in which Dunn and McCullough had complained that Fairfield threw them out of Band class and effectively condemned them to an “F” in the course without giving them some kind of notice and a hearing, we would delve into the nature of the property interest Illinois law creates in a public education. . . . But that is not the students’ claim. Instead, they assert that the federal Constitution places substantive restrictions on the type of disciplinary measures public school districts may use for conceded violations of rules of student conduct. At some extreme, that is certainly true; the question here is where the outer boundaries lie. The students seem to think that federal constitutional protection is coextensive with the right recognized under Illinois law to a free public education through the end of high school. The Supreme Court’s recent decision in County of Sacramento v. Lewis . . . definitively shows that they are wrong. . . . The Supreme Court . . . emphasized once again how limited the scope of the substantive due process doctrine is. . . . In so doing, it relied on two independent grounds: first, that substantive due process does not apply when a particular part of the Constitution “provides an explicit textual source of constitutional protection against a particular sort of government behavior,” . . . and second, that “in any event the allegations are insufficient to state a substantive due process violation through executive abuse of power.” . . . We turn to the latter part of the Court’s opinion, because no one claims that Fairfield’s actions should be judged under a more specific part of the federal Constitution. The touchstone of due process, the Court explained, is “protection of the individual against arbitrary action of government,” . . . whether the problem is the denial of fundamental procedural fairness or the exercise of governmental power without any reasonable justification. The criteria that govern what is fatally arbitrary . . . depend upon whether legislation or a specific act of a governmental officer is at issue. . . . [T]he court has looked for an abuse of power that “shocks the conscience”. . . . Looked at from the opposite point of view, the Court reiterated that “the
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Substantive Due Process
due process guarantee does not entail a body of constitutional law imposing liability whenever someone cloaked with state authority causes harm.” . . . Negligent conduct can virtually never meet the constitutional threshold. Instead, the Court said, “conduct intended to injure in some way unjustifiable by any governmental interest” would be most likely to rise to the conscienceshocking level. . . . . . . [I]t would be nearly absurd to say that a school principal’s decision effectively to give two students an “F” in Band class did. It may be worth acknowledging that this in no way necessarily implies approval of the state official’s action; . . . and [in hindsight] we may have similar doubts about the wisdom of the severity of Fairfield’s sanctions against the rebel musicians here. Although the briefs are not entirely clear on this point, we understand from oral argument that Dunn and McCullough are also asserting a legislative violation of substantive due process rights, insofar as they are attacking Fairfield’s written disciplinary classifications and penalty structure. . . . [T]he [Supreme] Court [has stated] that “[t]he Due Process Clause guarantees more than fair process, and the ‘liberty’ it protects includes more than the absence of physical restraint.” . . . The substantive component of the clause, the [Supreme] Court explained, “provides heightened protection against governmental interference with certain fundamental rights and liberty interests,” including things like the right to marry, to have children, to direct the education and upbringing of one’s children, to marital privacy, to use contraception, to bodily integrity, and to choose an abortion. Once again, measured by that standard the school policy that the students attack comes nowhere close to a constitutional violation. Although students may have some substantive due process rights while they are in school, . . . education itself is not a fundamental right. . . . That means that Fairfield’s decision to stack the deck so that these students would fail Band must be sustained unless it is wholly arbitrary. Here, however, Dunn and McCullough freely conceded that they had violated a school rule, that the rule was designed to preserve discipline in the classroom and to punish student insubordination, and that these were legitimate interests on the part of the
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school district. That alone is enough to show that their claim cannot possibly succeed. The Constitution does not guarantee these or any other students the right not to receive an “F” in a course from which they were excluded because of misbehavior. . . . On a practical level, we share the district court’s concern about transforming the federal courts into an appellate arm of the schools throughout the country, but this is not a “floodgates” inspired decision. Our conclusion that Dunn and McCullough have not stated a claim under the substantive component of the due process clause of the Fourteenth Amendment rests exclusively on our understanding of the scope of that doctrine as it has been explicated by the Supreme Court. For these reasons, we AFFIRM the judgment of the district court.
CASE NOTES 1. Interscholastic Athletics as a Substantive Due Process Interest. “A clear majority of the courts” has held that students do not have a substantive constitutional entitlement to participate in interscholastic athletics. Brands v. Sheldon Community School, 671 F. Supp. 627 (N.D. Iowa 1987). See Colorado Seminary v. NCAA, 570 F.2d 320 (10th Cir. 1978); Hamilton v. Tennessee Secondary School Athletic Association, 552 F.2d 681 (6th Cir. 1976); Mitchell v. Louisiana High School Athletic Association, 430 F.2d 1155 (5th Cir. 1970). In a case from the U.S. Court of Appeals, Eighth Circuit, the court stated that “a student’s interest in participating in a single year of interscholastic athletics amounts to a mere expectation rather than a constitutionally protected claim of entitlement.” In re United States ex rel. Missouri State High School Activities Association, 682 F.2d 147 (8th Cir. 1982), quoting Walsh v. Louisiana High School Athletic Association, 616 F.2d 152 (5th Cir. 1980), cert. denied, 449 U.S. 1124, 101 S. Ct. 939 (1981). In Brands, a federal district court in Minnesota noted that “once awarded, a college scholarship may give rise to a property interest in its continuation,” citing Hall v. University of Minnesota, 530 F. Supp. 104 (D. Minn. 1982). The court in Brands further elaborated,
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[w]hen scholarships are awarded at the discretion of a college coach, and such discretion has not yet been exercised, no property interest in the receipt of a scholarship can exist, and the plaintiff can not invoke his expectation that he would earn a scholarship at the state tournament in order to claim a property interest. Brands v. Sheldon Community School, 671 F. Supp. 627 (N.D. Iowa 1987).
2. Athletic Team Members Criticizing the Coach. As the cases above indicate, students have no property interest in participating on a school interscholastic athletic team. A question may also arise as to whether student athletes can be excluded from a school team for criticizing the coach. Do they have a First Amendment free speech right that protects them from removal from the team for concerted criticism of a coach? The U.S. Court of Appeals, Sixth Circuit, answers in the negative. In a case where the players on a high school football team circulated a petition stating “I hate [the school’s football coach] and I don’t want to play for him,” and the school officials dismissed the student from the team, the Sixth Circuit upheld the dismissals. The Court said that the petition would disrupt the team, erode the coach’s authority, and divide the players into opposing camps. See the free speech discussion and Tinker v. Des Moines in Chapter 8. Lowery v. Euverard, 497 F.3d 584 (6th Cir., 2007). 3. Denial to Sports Team as Breach of Contract. Innovative lawyers have even asserted the court’s participation in interscholastic sports is a contractual obligation between student and the school that prevents the removal of a student from a sports team. This particular approach has been discredited by both federal and state courts in Michigan. Natke v. North Branch Area School District, 2010 WL 522798 (E.D. Michigan, S.D., 2010).
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Corporal Punishment and Substantive Due Process
STUDENT DISCIPLINE AT COMMON LAW “Corporal punishment” is generally understood “to be the infliction of bodily pain as a penalty for disapproved behavior.” 69 For courts to
consider “corporal punishment” in its legal context, the act must be “corporal” in that “it inflicts pain on the physical body of the victim, and it must be ‘punishment’ such that the intent of the actor is punitive.”70 In 2009, the Supreme Court explained that “incremental fear” created by way of a “stern lecture by a middle school vice principal did not rise to the level of a true threat of corporal punishment”71 that would violate California law. According to Richard Lawrence, an authority on juvenile justice, about half of the states still permit corporal punishment. 72 He also points out that “Every industrialized nation in the world except the United States, Canada, and one state in Australia prohibits corporal punishment.” Russia banned corporal punishment in 1917, Turkey in 1923, China in 1949, and South Africa in 1996. 73 In the United States, major professional organizations such as the National Education Association, The American Academy of Pediatrics, The American Academy of Child and Adolescent Psychiatry, and the American Bar Association have all supported bills in state legislatures to abolish corporal punishment.74 The courts at common law have historically upheld teachers’ authority to physically punish children in order to preserve school propriety and discipline. Cases have generally dealt with the degree and reasonableness of the discipline and not with whether corporal punishment could be administered at all. Courts have advanced two standards governing corporal punishment of a child: (1) the reasonableness standard, that it “must be exerted within bounds of reason and humanity;” and (2) the good-faith standard, that it must be administered in the best interest of the child. With regard to the first standard, the authority of a teacher over the pupil is considered a delegation of at least a portion of parental authority by the state to the teacher. As such, there is a presumption in favor of the correctness of the teacher’s actions. Concerning the second standard, the teacher must not have been activated by malice or have inflicted the punishment wantonly or excessively. The teacher may not be liable for error in judgment even though the punishment is too severe, if the punishment does not cause injury and the teacher acts in good faith.
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Corporal Punishment and Substantive Due Process
The state, of course, has an overriding interest in the good conduct of the public school, and in the absence of state statutes to the contrary, teachers may act to maintain decorum of the school and assure safety to other children by disciplining students in spite of parental opposition. One federal district court upheld the spanking of a child over the parents’ protest and said that even though parents generally have control of their children’s discipline, “the state has a countervailing interest in the maintenance of order in the school sufficient to sustain the right of teachers and school officials to administer reasonable corporal punishment” over a parent’s objections.75 Because the teacher and the student stand in a special relationship to each other in the school, the courts have, on occasion, considered the teacher ’s disciplinary authority in terms of a rule of privileged force. This standard says that a teacher has a qualified privilege and may thereby use force in controlling or disciplining a student. Such a privilege serves as a defense of the teacher against a civil assault charge, and emanates from the concept of in loco parentis, however, couched in different terminology. This rule has been defined as follows: [A]ny force used must be that which the teacher reasonably believes necessary (1) to enforce compliance with a proper command issued for the purpose of controlling, training or educating the child, or (2) to punish the child for prohibited conduct; and in either case, the force or physical contact must be reasonable and not disproportionate to the activity or the offense.76
Reasonableness is thus the common-law standard that governs corporal punishment of pupils. At common law, the discipline of the school reaches to prohibit and to punish acts of pupils that are detrimental to the school whether they transpire on school grounds or elsewhere. Pupil conduct can be regulated beyond the normal school day and off school grounds if there is a nexus between a student’s detriment and the operation of the school. In a nineteenth-century Texas case indicative of schools of an earlier age, a teacher whipped a student with a switch for fighting with another student after school. The court ruled that the fact that the fighting occurred after school did
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not deprive the teacher of the legal authority to punish the pupil.77 The necessity to extend school discipline to students for acts beyond the immediate school campus is particularly important when the safety of students is compromised. A vivid illustration of this point occurred where two students, one in a jeep and the other in a pickup truck, impeded the progress of a school bus loaded with children traveling to school. The driver of the jeep positioned his vehicle in front of the bus, while the pickup truck was behind the bus, and by alternatively slowing and speeding up, they obstructed the operation of the bus. Upon arriving at the school, the students, who had been positively identified and cited by the highway patrol, were suspended. The students sued, challenging the suspensions. The court upheld the disciplinary action, stating, “It matters little that the proscribed conduct occurred on a public highway. It is generally accepted that school authorities may discipline pupils for out-of-school conduct having a direct and immediate effect on the discipline or general welfare of the school. This is particularly true where the discipline is reasonably necessary for the student’s physical or emotional safety and well-being of other students.”78 The safety of students is always a compelling consideration of the school and the courts place safety in a high-priority position when viewing any action by a school district. In a case where a student was expelled from school for committing a battery on another student on a public street after school, the student challenged the school’s authority to discipline him for offschool-grounds behavior. The court upheld the school’s action, observing that imposing discipline off school grounds is not arbitrary or capricious79 if the school’s action is for the good reason to protect the safety and welfare of the students. The safety and welfare of students are of course inextricably linked to the contagion of drugs in our society. Drug dealing off school grounds naturally affects the schools. In a case where a student sold cocaine to an undercover state police officer on three occasions, none of which occurred on school property, the student was arrested at the high school, suspended, and subsequently expelled by the school board.
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The student challenged the expulsion, claiming the school board lacked authority to expel him for a nonschool activity off school grounds. The court upheld the school board, reasoning that if a student is deemed to be a threat to the safety of other students, even off-campus, the welfare of all the students is controlling.80 Today, plaintiff parents and students seldom challenge school authority to administer discipline solely on the rationale that the school acted unreasonably. Most cases are now brought under the aegis of the freedoms and liberties provisions of the U.S. Constitution or under provisions of various civil rights statutes. Yet even in the face of these pervasive protections, the courts tend to measure school discipline in terms of reasonableness and the extent to which student actions are destructive of the school’s ability to protect the safety and welfare of students. Allegations of the denial of a student’s constitutional rights will not prevail over the school’s authority, on campus and off, if the school rules and enforcement are considered reasonable by the courts. Thus, when the good conduct of the school is jeopardized by students who would disrupt the educational process or place themselves or others in harm’s way, the school can, by enforcement of reasonable rules, discipline the students whether the actions occurred on or off the school campus.
THE EIGHTH AMENDMENT In Ingraham v. Wright,81 the U.S. Supreme Court ruled that corporal punishment, as administered in the schools, could not be construed to violate the Eighth Amendment. The Court said the amendment’s prohibition against cruel and unusual punishment does not apply to paddling in the schools; rather, it was designed to protect those convicted of crimes from punishment that is inhumane, vicious, or barbarous. The amendment’s intent is threefold: to limit the kinds of punishment that can be imposed on those convicted of crimes, to proscribe punishment grossly disproportionate to the severity of the crime, and to impose substantive limits on what can be made criminal and punished as such. In this light, the Court concluded that it is difficult to conceive of corporal punishment as being within the scope of the Eighth Amendment.
To declare that corporal punishment brings into play the protections of substantive due process can subject the public school teacher or administrator to liability in monetary damages under Section 1983 of the Civil Rights Act of 1871.82 This so-called constitutional tort is now incorporated into the Civil Rights Act of 1964. In order to recover damages under Section 1983, a “plaintiff must demonstrate a deprivation of a liberty . . . interest protected by the Fourteenth Amendment,”83 including the textual and nontextual fundamental rights found in the Bill of Rights. Where substantive due process is interpreted to protect the liberty interests of students against immoderate corporal punishment, a plaintiff student can obtain monetary damages from the schoolteacher or official who transgresses the student’s liberty. Substantive due process is thereby applied with teeth by means of Section 1983, to teachers, administrators, and the school.84
LIBERTY INTERESTS The Supreme Court declared in Ingraham that “corporal punishment in public schools implicates a constitutionally protected liberty interest.”85 The Court noted that “among the liberty interests ‘long recognized at common law as essential to the orderly pursuit of happiness of free men’” is the “right to be free from, and obtain judicial relief for, unjustified intrusions on personal security,” including “bodily restraint and punishment.”86 Yet the Supreme Court noted that ordinary corporal punishment does not violate substantive rights. Further, if the Supreme Court believed that substantive due process interests come into play at a certain level of severity, it apparently did not feel that the severe beating that the students suffered in Ingraham was of sufficient magnitude to invoke such substantive interests. Therefore, the Supreme Court left the issue hanging. The Fifth Circuit Court of Appeals, dealing with Ingraham at the lower court level, had observed that substantive rights could not be reduced to a review of the severity of corporal punishment in each case—an untenable position in which the courts would find themselves counting the weight and number of paddle licks.87 In addressing the issue of due process in Ingraham, the Supreme Court applied what it
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Corporal Punishment and Substantive Due Process
called a “two stage analysis.” The first stage dealt with the substantive interests of liberty and property and whether school punishment of the plaintiff fell under the aegis of either. As to the second stage, the Court said that if a substantive right were implicated then it must be decided as to what procedures are due the plaintiff to protect his interests. In examining the two stages, the Supreme Court concluded in Ingraham that “corporal punishment in a public school implicates a constitutionally protected liberty interest.” However, the Court stopped at this point and declined to enforce the liberty interest with a requirement of procedural due process. The Court concluded that even though a liberty interest was implicated, the traditional commonlaw remedies, meaning an action in tort law, were sufficient to vindicate the denial of a liberty interest. The Supreme Court further observed that even though the plaintiff student, who was beaten with a paddle, had a substantive liberty interest at stake in the corporal punishment, it was nevertheless de minimis, and did not rise to a level of constitutional concern. The Court also noted that the common-law privilege permits teachers to inflict reasonable corporal punishment on students in their care as well as traditional tort law protections against unreasonable punishment were key elements in not extending procedural due process safeguards to the plaintiff student. The Ingraham ruling has generated mixed interpretations by the lower federal courts. The U.S. Court of Appeals, Fifth Circuit, has established a rule that bars the use of “liberty” as a guard against immoderate punishment, thereby effectively foreclosing any possibility of damages under Section 1983 for a plaintiff student.88 Following this rationale, the Fifth Circuit in Moore v. Willis Independent School District 89 rejected the idea that excessive corporal punishment fell under the prohibition of substantive due process, noting that other remedies were available to the student, including state criminal law assault action for injury to a child and possibly common law tort action for negligence.90 The Fifth Circuit further reinforced its adamancy in denying substantive due process protection to schoolchildren in Cunningham v. Beavers, when it concluded that “the infliction of punishment may transgress constitutionally
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protected liberty interests, but if the state affords the student adequate post-punishment remedies to deter unjustified or excessive punishment and to redress that which may nevertheless occur, the student receives all the process that is constitutionally required.”91 With this reasoning, the Fifth Circuit appears to directly follow Ingraham, recognizing that a child may have a substantive constitutional interest, but asserting that procedural due process is not necessary. An aggrieved student cannot then turn to constitutional tort damages under Section 1983 as a remedy. According to the Fifth Circuit, if a plaintiff student has access to common-law tort action for damages or to state criminal law for assault, no other remedies are needed. The U.S. Courts of Appeals in other circuits have departed from the Fifth Circuit’s absolutist position. In Hall v. Tawney, the Fourth Circuit took issue with the Fifth Circuit and the Supreme Court in Ingraham, saying: [The] right to ultimate bodily security—the most fundamental aspect of personal privacy—is unmistakably established in our constitutional decisions as an attribute of the ordered liberty that is the concern of substantive due process. Numerous cases in a variety of contexts recognize it as a . . . defense against those literally outrageous abuses of official power. . . . We simply do not see how we can fail also to recognize it in public school children under the disciplinary control of public school teachers.92
The Hall case, which incidentally was being litigated at a lower federal level when the Supreme Court decided Ingraham, decided that the rule should be that any substantive due process inquiry in school corporal punishment cases should hinge on whether the force applied in the punishment is so immoderate and severe as to be disproportionate to the remedy that the state is trying to achieve, and further, whether the facts would indicate that the punishment was inspired by malice or sadism rather than mere carelessness or unwise and excess zeal that amounted to inhumane and brutal abuse of official power that is “literally shocking to the conscience.”93 “Shocking to the conscience” thereby became a standard that most other circuit courts adopted. The Third Circuit used this standard in a case where a junior high school student
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who used inappropriate language in class was placed in a chokehold by his physical education teacher, subsequently lost consciousness, fell to the ground, suffered a broken nose and a cut lip, and was hospitalized. The court concluded that the actions of the teacher were sufficiently excessive to shock the conscience.94 The Sixth Circuit95 also utilized the “shocking to the conscience” rationale of Hall to rule in favor of a student’s claim for damages under Section 1983 for violating students’ substantive due process rights. In Garcia v. Miera, a Tenth Circuit case, a 9-year-old girl was severely punished by a principal who held her upside-down by the ankles and slapped her across the front of her legs with a split wooden paddle until she bled. 96 According to the court, this fell within Hall’s “shocking to the conscience” standard. The Fourth Circuit has also invoked “conscience shocking” in finding against a special education teacher and an assistant, and denying them a qualified privilege, where the two restrained a child in a wheelchair for hours at a time during the school day and allegedly ignored, verbally abused, and schemed to deprive her of educational services.97 An Eleventh Circuit court held in the case of Neal v. Fulton County Board of Education that excessive punishment could violate substantive due process.98 In Saylor v. Board of Education, the Sixth Circuit court also ruled that severe punishment could rise to such a severe level as to warrant the invocation of a substantive due process liberty interest.99 Following suit, the Third Circuit ruled in Metzger v. Osbeck that excessive force in punishment of a student may violate substantive due process,100 and in Wise v. Pea Ridge School District, the Eighth Circuit concluded that at some point punishment could be so severe as to implicate substantive due process.101 In Garcia, noted previously, the Tenth Circuit reasoned that at some level or degree of severity, excessiveness, or cruelty, the meting out of such punishment could violate the substantive due process rights of students.102 In 2007, the U.S. Court of Appeals, Eleventh Circuit, in Peterson v. Baker,103 citing its Neal precedent, pointed out that excessive corporal punishment could offend the Due Process Clause if it was “egregious and conscience shocking”; however, the court refused to invoke such
constitutional protection in a situation that, at most, should have been no more than an action in common-law tort. The court reiterated that it did not intend to allow a common-law tort to easily slide across the boundaries of law to become a transgression of constitutional law. For an offense that would ordinarily be viewed a common-law tort to become a “constitutional tort” involving “conscience-shocking” as a due process issue, requires, per Neal, very close judicial analysis in which the plaintiff must prove that, “(1) a school official intentionally used an amount of force that was obviously excessive under the circumstances, and (2) the force used presented a reasonably foreseeable risk of serious bodily injury.”104 To these criteria the Peterson court further explained that whether the force used was “obviously excessive” required an examination of the “totality of circumstances,” which includes among other things “(1) the need for the application of corporal punishment, (2) the relationship between the need and amount of punishment administered, and (3) the extent of the injury inflicted.” 105 In applying these conditions, the court ruled that an altercation between a teacher and a student that left the student with “slight bruising and red marks on his neck” and a “temporary loss of breath” did not rise to the level of a constitutional substantive due process tort.106 The court contrasted the situation from cases where, such as Kirkland v. Greene County Board of Education,107 the teacher had struck a student on the head, back, and ribs with a metal cane, and the case of P.B. v. Koch 108 where the school principal “slapped, punched, and choked” several students when there was no need to use force. The court in Peterson concluded by noting that “Not every push or shove, even if it is unnecessary in the peace of a judge’s chambers, violates a [person’s] constitutional rights.”109 In the final analysis, these cases suggest that in spite of the U.S. Supreme Court’s decision in Ingraham, the predominate view of the lower courts is one of flexibility when considering the application of substantive due process to corporal punishment. In spite of the Ingraham standard, the “shocking to the conscience” standard of substantial due process may ultimately be accepted by all the lower federal courts.
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Corporal Punishment and Substantive Due Process
Cruel and Unusual Punishment Clause of Eighth Amendment Does Not Apply to Corporal Punishment in Schools
Ingraham v. Wright Supreme Court of the United States, 1977. 430 U.S. 651, 97 S. Ct. 1401.
Mr. Justice POWELL delivered the opinion of the Court. This case presents questions concerning the use of corporal punishment in public schools: first, whether the paddling of students as a means of maintaining school discipline constitutes cruel and unusual punishment in violation of the Eighth Amendment; and second, to the extent that paddling is constitutionally permissible, whether the Due Process Clause of the Fourteenth Amendment requires prior notice and an opportunity to be heard. . . . . . . In the 1970–1971 school year many of the 237 schools in Dade County used corporal punishment as a means of maintaining discipline pursuant to Florida legislation and a local school board regulation. The statute then in effect authorized limited corporal punishment by negative inference, proscribing punishment which was “degrading or unduly severe” or which was inflicted without prior consultation with the principal or the teacher in charge of the school. The regulation . . . contained explicit directions and limitations. . . . The use of corporal punishment in this country as a means of disciplining school children dates back to the colonial period. It has survived the transformation of primary and secondary education from the colonials’ reliance on optional private arrangements to our present system of compulsory education and dependence on public schools. Despite the general abandonment of corporal punishment as a means of punishing criminal offenders, the practice continues to play a role in the public education of school children in most parts of the country. Professional and public opinion is sharply divided
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on the practice, and has been for more than a century. Yet we can discern no trend toward its elimination. At common law a single principle has governed the use of corporal punishment since before the American Revolution: teachers may impose reasonable but not excessive force to discipline a child. . . . The basic doctrine has not changed. The prevalent rule in this country today privileges such force as a teacher or administrator “reasonably believes to be necessary for [the child’s] proper control, training, or education.” . . . To the extent that the force is excessive or unreasonable, the educator in virtually all States is subject to possible civil and criminal liability. . . . All of the circumstances are to be taken into account in determining whether the punishment is reasonable in a particular case. Among the most important considerations are the seriousness of the offense, the attitude and past behavior of the child, the nature and severity of the punishment, the age and strength of the child, and the availability of less severe but equally effective means of discipline. . . . . . . Against this background of historical and contemporary approval of reasonable corporal punishment, we turn to the constitutional questions before us. The Eighth Amendment provides, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Bail, fines and punishment traditionally have been associated with the criminal process, and by subjecting the three to parallel limitations the text of the Amendment suggests an intention to limit the power of those entrusted with the criminal law function of government. An examination of the history of the Amendment and the decisions of this Court construing the proscription against cruel and unusual punishment confirms that it was designed to protect those convicted of crimes. We adhere to this longstanding limitation and hold that the Eighth Amendment does not apply to the paddling of children as a means of maintaining discipline in public schools. . . . Petitioners acknowledge that the original design of the Cruel and Unusual Punishments Clause was to limit criminal punishments, but urge nonetheless that the prohibition should
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be extended to ban the paddling of school children. . . . The prisoner and the schoolchild stand in wholly different circumstances, separated by the harsh facts of criminal conviction and incarceration. . . . The schoolchild has little need for the protection of the Eighth Amendment. Though attendance may not always be voluntary, the public school remains an open institution. Except perhaps when very young, the child is not physically restrained from leaving school during school hours; and at the end of the school day, the child is invariably free to return home. Even while at school, the child brings with him the support of family and friends and is rarely apart from teachers and other pupils who may witness and protest any instances of mistreatment. The openness of the public school and its supervision by the community afford significant safeguards against the kinds of abuses from which the Eighth Amendment protects the prisoner. In virtually every community where corporal punishment is permitted in the schools, these safeguards are reinforced by the legal constraints of the common law. Public school teachers and administrators are privileged at common law to inflict only such corporal punishment as is reasonably necessary for the proper education and discipline of the child; any punishment going beyond the privilege may result in both civil and criminal liability. . . . As long as the schools are open to public scrutiny, there is no reason to believe that the common law constraints will not effectively remedy and deter excesses such as those alleged in this case. We conclude that when public school teachers or administrators impose disciplinary corporal punishment, the Eighth Amendment is inapplicable. The pertinent constitutional question is whether the imposition is consonant with the requirements of due process. The Fourteenth Amendment prohibits any State deprivation of life, liberty or property without due process of law. Application of this prohibition requires the familiar two-stage analysis: we must first ask whether the asserted individual interests are encompassed within the Fourteenth Amendment’s protection of “life, liberty or property”; if protected interests are implicated,
we then must decide what procedures constitute “due process of law.” . . . Following that analysis here, we find that corporal punishment in public school implicates a constitutionally protected liberty interest, but we hold that the traditional common law remedies are fully adequate to afford due process. “[T]he range of interests protected by procedural due process is not infinite.” . . . Among the historic liberties so protected was a right to be free from and to obtain judicial relief, for unjustified intrusions on personal security. While the contours of this historic liberty interest in the context of our federal system of government have not been defined precisely, they always have been thought to encompass freedom from bodily restraint and punishment. . . . It is fundamental that the state cannot hold and physically punish an individual except in accordance with due process of law. This constitutionally protected liberty interest is at stake in this case. There is, of course, a de minimis level of imposition with which the Constitution is not concerned. But at least where school authorities, acting under color of state law, deliberately decide to punish a child for misconduct by restraining the child and inflicting appreciable physical pain, we hold that Fourteenth Amendment liberty interests are implicated. “[T]he question remains what process is due.” . . . Were it not for the common law privilege permitting teachers to inflict reasonable corporal punishment on children in their care, and the availability of the traditional remedies for abuse, the case for requiring advance procedural safeguards would be strong indeed. But here we deal with a punishment— paddling—within that tradition, and the question is whether the common law remedies are adequate to afford due process. . . . Whether in this case the common law remedies for excessive corporal punishment constitute due process of law must turn on an analysis of the competing interests at stake, viewed against the background of “history, reason, [and] the past course of decisions.” The analysis requires consideration of three distinct factors: “first, the private interest that will be affected . . . ; second, the risk of an erroneous deprivation of such interest . . . and the probable value, if any, of additional or substitute procedural safeguards;
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Corporal Punishment and Substantive Due Process
and, finally, the [state] interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” . . . Because it is rooted in history, the child’s liberty interest in avoiding corporal punishment while in the care of public school authorities is subject to historical limitations. . . . The concept that reasonable corporal punishment in school is justifiable continues to be recognized in the laws of most States. . . . It represents “the balance struck by this country” . . . between the child’s interest in personal security and the traditional view that some limited corporal punishment may be necessary in the course of a child’s education. Under that longstanding accommodation of interests, there can be no deprivation of substantive rights as long as disciplinary corporal punishment is within the limits of the common law privilege. This is not to say that the child’s interest in procedural safeguards is insubstantial. The school disciplinary process is not “a totally accurate, unerring process, never mistaken and never unfair. . . .” . . . In any deliberate infliction of corporal punishment on a child who is restrained for that purpose, there is some risk that the intrusion on the child’s liberty will be unjustified and therefore unlawful. In these circumstances the child has a strong interest in procedural safeguards that minimize the risk of wrongful punishment and provide for the resolution of disputed questions of justification. We turn now to a consideration of the safeguards that are available under applicable Florida law. Florida has continued to recognize, and indeed has strengthened by statute, the common law right of a child not to be subjected to excessive corporal punishment in school. Under Florida law the teacher and principal of the school decide in the first instance whether corporal punishment is reasonably necessary under the circumstances in order to discipline a child who has misbehaved. But they must exercise prudence and restraint. For Florida has preserved the traditional judicial proceedings for determining whether the punishment was justified. If the punishment inflicted is later found to have been excessive—not reasonably believed at the time to be necessary for the child’s discipline
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or training—the school authorities inflicting it may be held liable in damages to the child and, if malice is shown, they may be subject to criminal penalties. . . . . . . In view of the low incidence of abuse, the openness of our schools, and the common law safeguards that already exist, the risk of error that may result in violation of a schoolchild’s substantive rights can only be regarded as minimal. Imposing additional administrative safeguards as a constitutional requirement might reduce that risk marginally, but would also entail a significant intrusion into an area of primary educational responsibility. We conclude that the Due Process Clause does not require notice and a hearing prior to the imposition of corporal punishment in the public schools as that practice is authorized and limited by the common law. . . .
CASE NOTES 1. Mandatory Punishment. The Supreme Court of Mississippi has held that a rule with prescribed mandatory punishment is valid. The court explained: As a matter of state substantive due process, a school board’s disciplinary rule or scheme is enforceable when fairly viewed it furthers a substantial legitimate interest of the school. Mandatory school disciplinary rules are not unconstitutional simply because they are mandatory. The fact that a school rule may be worded in mandatory language does not deprive school boards and their subordinates of the authority to administer the rule with flexibility and leniency. Clinton Municipal Separate School District v. Byrd, 477 So.2d 237 (Miss. 1985).
Mississippi Supreme Court reinforced its earlier ruling, in 2008, upholding school’s mandatory expulsion of student for having a knife in his possession. The zero tolerance did not deprive the student of due process of law. Hinds County School Dist. v. R.B., 10 So.3d 387 (2008). 2. Detention of students, if reasonable, does not violate their substantive due process rights. In a case where sixth-grade students were taken on a school-sponsored jail tour at the County Youth Center, one student was cautioned about being disrespectful and was subsequently placed in a holding cell for
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50 minutes. The other students continued the tour. The parents claimed a violation of rights under the Fourth, Eighth, and Fourteenth Amendments. The circuit court ruled that the student had suffered no violation of his constitutional rights. Hassan v. Lubbock Independent School District, 55 F.3d 1075 (5th Cir. 1995). In a similar case in North Carolina, a student was locked up for seven minutes because she was disruptive during a jail tour; the parents sued, but the court ruled that there was no violation of substantive constitutional rights. Harris v. County of Forsyth, 921 F. Supp. 325 (M.D.N.C. 1996). See: Chapter 12 on “False Imprisonment” as a Tort.
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Procedural Due Process
The legal concept of procedural due process in Anglo-American law is at least as old as the Magna Carta. As discussed elsewhere in this book, Article 39 of the Magna Carta, as written in 1215, required due process, and the common law has long required a fair hearing by an impartial tribunal as a fundamental principle of justice. Procedural due process, or natural justice, encompasses two basic or elemental standards of fairness: (1) The rule against bias: No person shall be a judge in his or her own case, or nemo judex in causa sua; and (2) the right to a hearing: No person shall be condemned unheard, or audi alteram partem. The right to a hearing requires that the accused know the case against him or her and have an opportunity to state his or her own case. Each party must have the chance to present his or her version of the facts and to make submissions relevant to the case. Fairness is the hallmark of this process, and though the extent of process required is sometimes in question, the principle that “no one should be condemned unheard” prevails. The Fifth and Fourteenth Amendments of the U.S. Constitution provide that neither the federal government nor a state shall “deprive any person of life, liberty or property, without due process of law.” Originally, these provisions were interpreted to apply to judicial proceedings only and not to quasi-judicial proceedings conducted by educational agencies. Because school officials stood in loco parentis, a privileged relationship to
students, particular legal standards of fair play were not required. It was not until the landmark case of Dixon v. Alabama State Board of Education110 in 1961 that this changed. Dixon established that procedural due process does manifestly apply to schools and other governmental agencies, and deviations from minimal fairness in disciplinary action, depending on the magnitude and severity, may well deny the student a constitutional interest. The circumstances and the interests of the parties involved are paramount in prescribing the standards of procedural due process.111 The U.S. Supreme Court has said: [d]ue process unlike some legal rules is not a technical conception with a fixed content, unrelated to time, place and circumstances. . . . It is a delicate process of adjustment inescapably involving the exercise of judgment by those to whom the Constitution entrusted the unfolding of its process.112
In providing procedural due process, the courts, led by Dixon v. Alabama State Board of Education, are not uniform in their requirements, but all insist that fundamental fairness must be afforded and that “both sides must be given an opportunity to present their sides of the story in detail.”113 In Due v. Florida Agricultural and Mechanical University, the court outlined three minimal due process requirements: First, the student should be given adequate notice in writing of the specific ground or grounds and the nature of the evidence on which the disciplinary proceedings are based. Second, the student should be given an opportunity for a hearing in which the disciplinary authority provides a fair opportunity for hearing of the student’s position, explanations and evidence. The third requirement is that no disciplinary action be taken on grounds which are not supported by any substantial evidence.114
Fundamental fairness prescribed in these early cases for long suspension or expulsion of students has been extended to temporary, shortterm suspensions by the U.S. Supreme Court in Goss.115 The formality and intensity of the procedural process are not fixed, the requirement being only that the process be commensurate with the length of suspension or the detriment that may be imposed on the student. After the lower federal courts set the procedural due process standards in motion in Dixon
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Procedural Due Process
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Procedural Due Process (Dixon Rudiments)
Impartial Tribunal
Notice of Hearing and Charges
and Due, the U.S. Supreme Court articulated a balancing test in Mathews v. Eldridge,116 in 1976, that helped further explain the procedures that are due individuals when they are deprived of a protected interest. According to the Mathews Court, the factors to be balanced are: First, the private interest that will be affected by the official action; second the risk of an erroneous deprivation of such interest through the procedures used and the probable value, if any, of additional or substitute procedural safeguards; and finally the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.117
This instruction by the Supreme Court is helpful to school districts as a guide for the varying situations that occur in the school setting. The school district, in balancing the three factors, should first consider the importance of the interest to the student in a suspension or dismissal process. For example, suspension during a critical academic period in which promotion or graduation is at stake may require more in the way of procedural safeguards. The second factor to consider is the capacity of the intensified procedural process to reveal more accurate information about the situation. The objective is to reduce the likelihood of error. The third factor considers the burdens imposed on the school district by requiring additional and more involved procedures. The courts will generally be less likely to require intricate and expensive procedures if the facts can be obtained through a less involved process.118 Therefore, the balancing test articulated by the Supreme Court in Mathews gives substantial flexibility to the school district in considering the nature of due process procedure. Yet the Court makes it quite clear that where a critical education
Hearing to Refute Charges
Decision on Evidence Open to Student
interest is involved, an adversarial hearing must be conducted and the balancing test must be calibrated to provide the student with fundamental fairness. The flexibility in process allowed by the courts in Mathews, Dixon, and Due gives substantial latitude to the school district; however, it is highly subjective and is therefore conducive to question and challenge by students and parents. The school district may be assisted in reducing the subjectivity of the Mathews balancing test if it considers certain essential questions suggested by Chemerinsky in his book Constitutional Law: Principles and Policies.119 His five basic questions are: First, what type of notice is required? Second, when must the hearing be provided; must it be before the deprivation or can it be after the deprivation? Third, what type of hearing is required? [For example, how elevated must the adversarial process be—is there a need for attorneys to be present, etc.] Fourth, who has the burden of proof (i.e., preponderance of evidence in school suspensions and dismissal cases)? Fifth, who should be the decisionmaker?120
These five questions are further broken down into seven guidelines set forth by Nowak, Rotunda, and Young in their book on constitutional law.121 They suggest that the balancing test of Mathews can be viewed in seven essential elements, which are adapted here to the education setting: (1) adequate notice of the charges or basis for school district action; (2) an impartial or neutral decision maker; (3) an opportunity for the student to make an oral presentation of his or her side of the story to the school decision maker; (4) an opportunity to present evidence or witnesses to the decision maker; (5) a chance to challenge witnesses or evidence that is to be used against the student; (6) the right to have an attorney present if the extremity of the loss warrants an
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intensified procedure; and (7) a decision based on the record made available to the student with a statement of the rationale for the decision. The pivotal U.S. Supreme Court cases where both issues of substantive and procedural due process come into play are Board of Curators v. Horowitz,122 a higher-education case, and Goss v. Lopez,123 a public school case. Horowitz, involving the dismissal of a medical school student at the late stages of medical training, was noteworthy because the Court deferred to the decisions of university officials in academic matters and refused to require a complex hearing to determine the appropriateness of an academic dismissal. The Court acknowledged and assumed that even with a substantive property interest at stake and continued enrollment in the university, the student could be dismissed for academic reasons without the high formality of a due process hearing. Thus, in Horowitz, the Supreme Court determined that judges should not be involved in the review of academic dismissals if there exists some assurance that the appropriate officials have exercised their academic judgment in deciding the issue.124 In Goss, the question involved the suspension of students from a public school for disciplinary reasons rather than for academic reasons as was the case in Horowitz. Importantly, the Supreme Court addressed both substantive and procedural due process issues in Goss. With regard to the substance of due process, the Court reemphasized that students had a property interest in educational benefits of the public school, and further, that a liberty interest was implicated when an action by the school district could harm the reputation of students. Having determined that substantive interests of the students were involved, the Court then considered whether the loss of education resulting from a 10-day suspension constituted an actionable denial of a property and/or liberty interest. The Court made it clear that the length of the suspension is not the determinant of whether the school should have provided procedural due process. In a key observation, the Court noted that a 10-day suspension from school is not de minimus, nor a trivial loss of education, but is a “serious event in the life of the suspended child.”125 The Court concluded that both substantive property and liberty interests are at risk in a suspension from school and that a denial of education interests requires that
the school provide students with procedural due process. The Court concluded: Neither the property interest in educational benefits temporarily denied nor the liberty interest in reputation, which is also implicated, is so insubstantial that suspensions may constitutionally be imposed by any procedure that the school chooses. . . .126
The federal courts are the final adjudicators of how much process is due. Neither the state nor the school district can, through statute or regulation, establish a process by which the protections of property and liberty interests are reduced below the requirements of procedural due process as required by the courts under the Due Process Clause of the Fourteenth Amendment. The procedure required by due process is a constitutional question to be established by the judiciary. In Cleveland Board of Education v. Loudermill,127 the Supreme Court held that the procedure required to satisfy the mandate of due process is a constitutional question that can only be decided by the federal courts. It is not an issue that can be preempted by state laws that could possibly prescribe lower standards. The Court clarified, saying: minimum [procedural] requirements [are] a matter of federal law. They are not diminished by the fact that the State may have specified its own procedures that it may deem adequate for determining the preconditions to adverse official action.128
When an issue involves a denial of a substantive interest of life, liberty, or property, only constitutionally adequate procedures as judicially determined by federal courts will suffice.
Procedural Due Process Required for Students When Expelled
Dixon v. Alabama State Board of Education United States Court of Appeals, Fifth Circuit, 1961. 294 F.2d 150, cert. denied, 368 U.S. 930, 82 S. Ct. 368 (1961).
RIVES, Circuit Judge. The question presented by the pleadings and evidence, and decisive of this appeal, is
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Procedural Due Process
whether due process requires notice and some opportunity for hearing before students at a taxsupported college are expelled for misconduct. We answer that question in the affirmative. The misconduct for which the students were expelled has never been definitely specified. Defendant Trenholm, the President of the College, testified that he did not know why the plaintiffs and three additional students were expelled and twenty other students were placed on probation. The notice of expulsion which Dr. Trenholm mailed to each of the plaintiffs assigned no specific ground for expulsion, but referred in general terms to “this problem of Alabama State College.” . . . As shown by the findings of the district court . . . the only demonstration which the evidence showed that all of the expelled students took part in was that in the lunch grill located in the basement of the Montgomery County Courthouse. . . . The evidence clearly shows that the question for decision does not concern the sufficiency of the notice or the adequacy of the hearing, but is whether the students had a right to any notice or hearing whatever before being expelled. . . . After careful study and consideration, we find ourselves unable to agree with the conclusion of the district court that no notice or opportunity for any kind of hearing was required before these students were expelled. It is true, as the district court said, that “there is no statute or rule that requires formal charges and/or a hearing . . . ,” but the evidence is without dispute that the usual practice at Alabama State College had been to give a hearing and opportunity to offer defenses before expelling a student. . . . Whenever a governmental body acts so as to injure an individual, the Constitution requires that the act be consonant with due process of law. The minimum procedural requirements necessary to satisfy due process depend upon the circumstances and the interests of the parties involved. . . . The precise nature of the private interest involved in this case is the right to remain at a public institution of higher learning in which the plaintiffs were students in good standing. It requires no argument to demonstrate that education is vital and, indeed, basic to civilized society. Without sufficient education the plaintiffs would
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not be able to earn an adequate livelihood, to enjoy life to the fullest, or to fulfill as completely as possible the duties and responsibilities of good citizens. . . . . . . Turning then to the nature of the governmental power to expel the plaintiffs, it must be conceded, as was held by the district court, that that power is not unlimited and cannot be arbitrarily exercised. Admittedly, there must be some reasonable and constitutional ground for expulsion or the courts would have a duty to require reinstatement. The possibility of arbitrary action is not excluded by the existence of reasonable regulations. There may be arbitrary application of the rule to the facts of a particular case. Indeed, that result is well nigh inevitable when the Board hears only one side of the issue. In the disciplining of college students there are no considerations of immediate danger to the public, or of peril to the national security, which should prevent the Board from exercising at least the fundamental principles of fairness by giving the accused students notice of the charges and an opportunity to be heard in their own defense. . . . For the guidance of the parties in the event of further proceedings, we state our views on the nature of the notice and hearing required by due process prior to expulsion from a state college or university. They should, we think, comply with the following standards. The notice should contain a statement of the specific charges and grounds which, if proven, would justify expulsion under the regulations of the Board of Education. The nature of the hearing should vary depending upon the circumstances of the particular case. The case before us requires something more than an informal interview with an administrative authority of the college. By its nature, a charge of misconduct, as opposed to a failure to meet the scholastic standards of the college, depends upon a collection of the facts concerning the charged misconduct, easily colored by the point of view of the witnesses. In such circumstances, a hearing which gives the Board or the administrative authorities of the college an opportunity to hear both sides in considerable detail is best suited to protect the rights of all involved. This is not to imply that a full-dress judicial hearing, with the right to cross-examine witnesses, is required. Such a hearing, with the attending publicity
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and disturbance of college activities, might be detrimental to the college’s educational atmosphere and impractical to carry out. Nevertheless, the rudiments of an adversary proceeding may be preserved without encroaching upon the interests of the college. In the instant case, the student should be given the names of the witnesses against him and an oral or written report on the facts to which each witness testifies. He should also be given the opportunity to present to the Board, or at least to an administrative official of the college, his own defense against the charges and to produce either oral testimony or written affidavits of witnesses in his behalf. If the hearing is not before the Board directly, the results and findings of the hearing should be presented in a report open to the student’s inspection. If these rudimentary elements of fair play are followed in a case of misconduct of this particular type, we feel that the requirements of due process of law will have been fulfilled. The judgment of the district court is reversed and the cause is remanded for further proceedings consistent with this opinion. Reversed and remanded.
Temporary Suspension Requires Procedural Due Process
Goss v. Lopez Supreme Court of the United States, 1975. 419 U.S. 565, 95 S. Ct. 729.
Mr. Justice WHITE delivered the opinion of the Court. This appeal by various administrators of the Columbus, Ohio, Public School System (CPSS) challenges the judgment of a three-judge federal court, declaring that appellees—various high school students in the CPSS—were denied due process of law contrary to the command of the Fourteenth Amendment in that they were temporarily suspended from their high schools
without a hearing either prior to suspension or within a reasonable time thereafter, and enjoining the administrators to remove all references to such suspensions from the students’ records. Ohio law, Rev. Code Ann. § 3313.64 (1972), provides for free education to all children between the ages of six and twenty-one. Section 3313.66 of the Code empowers the principal of an Ohio public school to suspend a pupil for misconduct for up to ten days or to expel him. In either case, he must notify the student’s parents within twenty-four hours and state the reasons for his action. A pupil who is expelled, or his parents, may appeal the decision to the Board of Education and in connection therewith shall be permitted to be heard at the board meeting. The Board may reinstate the pupil following the hearing. No similar procedure is provided in § 3313.66 or any other provision of state law for a suspended student. Aside from a regulation tracking the statute, at the time of the imposition of the suspensions in this case the CPSS itself had not issued any written procedure applicable to suspensions, nor, so far as the record reflects, had any of the individual high schools involved in this case. Each, however, had formally or informally described the conduct for which suspension could be imposed. The nine named appellees, each of whom alleged that he or she had been suspended from public high school in Columbus for up to ten days without a hearing pursuant to § 3313.66, filed an action under 42 U.S.C.A. § 1983 against the Columbus Board of Education and various administrators of the CPSS. The complaint sought a declaration that § 3313.66 was unconstitutional in that it permitted public school administrators to deprive plaintiffs of their rights to an education without a hearing of any kind, in violation of the procedural due process component of the Fourteenth Amendment. It also sought to enjoin the public school officials from issuing future suspensions pursuant to § 3313.66 and to require them to remove references to the past suspensions from the records of the students in question. The proof below established that the suspensions arose out of a period of widespread student unrest in the CPSS during February and March 1971. Six of the named plaintiffs . . .
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Procedural Due Process
were each suspended for ten days on account of disruptive or disobedient conduct committed in the presence of the school administrator who ordered the suspension. . . . The other four Marion-Franklin students were suspended for similar conduct. None was given a hearing to determine the operative facts underlying the suspension, but each, together with his or her parents, was offered the opportunity to attend a conference, subsequent to the effective date of the suspension, to discuss the student’s future. . . . . . . On the basis of this evidence, the threejudge court declared that plaintiffs were denied due process of law because they were “suspended without hearing prior to suspension or within a reasonable time thereafter,” and that Ohio Rev. Code Ann. § 3313.66 (1972) and regulations issued pursuant thereto were unconstitutional in permitting such suspensions. It was ordered that all references to plaintiffs’ suspensions be removed from school files. Although not imposing upon the Ohio school administrators any particular disciplinary procedures and leaving them “free to adopt regulations providing for fair suspension procedures which are consonant with the educational goals of their schools and reflective of the characteristics of their school and locality,” the District Court declared that there were “minimum requirements of notice and a hearing prior to suspension, except in emergency situations.” In explication, the court stated that relevant case authority would (1) permit “[i]mmediate removal of a student whose conduct disrupts the academic atmosphere of the school, endangers fellow students, teachers or school officials, or damages property”; (2) require notice of suspension proceedings to be sent to the students’ parents within twenty-four hours of the decision to conduct them; and (3) require a hearing to be held, with the student present, within seventy-two hours of his removal. Finally, the court stated that, with respect to the nature of the hearing, the relevant cases required that statements in support of the charge be produced, that the student and others be permitted to make statements in defense or mitigation, and that the school need not permit attendance by counsel.
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The defendant school administrators have appealed the three-judge court’s decision. Because the order below granted plaintiffs’ request for an injunction—ordering defendants to expunge their records—this Court has jurisdiction of the appeal pursuant to 28 U.S.C.A. § 1253. We affirm. At the outset, appellants contend that because there is no constitutional right to an education at public expense, the Due Process Clause does not protect against expulsions from the public school system. . . . Appellants . . . argue that even if there is a right to a public education protected by the Due Process Clause generally, the Clause comes into play only when the State subjects a student to a “severe detriment or grievous loss.” The loss of ten days, it is said, is neither severe nor grievous and the Due Process Clause is therefore of no relevance. Appellants’ argument is again refuted by our prior decisions; for in determining “whether due process requirements apply in the first place, we must look not to the ‘weight’ but to the nature of the interest at stake.” . . . Appellees were excluded from school only temporarily, it is true, but the length and consequent severity of a deprivation, while another factor to weigh in determining the appropriate form of hearing, “is not decisive of the basic right” to a hearing of some kind. . . . The Court’s view has been that as long as a property deprivation is not de minimis, its gravity is irrelevant to the question whether account must be taken of the Due Process Clause. . . . A ten-day suspension from school is not de minimis in our view and may not be imposed in complete disregard of the Due Process Clause. A short suspension is, of course, a far milder deprivation than expulsion. But, “education is perhaps the most important function of state and local governments,” . . . and the total exclusion from the educational process for more than a trivial period, and certainly if the suspension is for ten days, is a serious event in the life of the suspended child. Neither the property interest in educational benefits temporarily denied nor the liberty interest in reputation, which is also implicated, is so insubstantial that suspensions may constitutionally be imposed by any procedure the school chooses, no matter how arbitrary. . . .
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There are certain bench marks to guide us, however. . . . “The fundamental requisite of due process of law is the opportunity to be heard,” . . . a right that “has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to . . . contest.” . . . At the very minimum, therefore, students facing suspensions and the consequent interference with a protected property interest must be given some kind of notice and afforded some kind of hearing. “Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.” . . . It also appears from our cases that the timing and content of the notice and the nature of the hearing will depend on appropriate accommodation of the competing interests involved. . . . The student’s interest is to avoid unfair or mistaken exclusion from the educational process, with all of its unfortunate consequences. The Due Process Clause will not shield him from suspensions properly imposed, but it disserves both his interest and the interest of the State if his suspension is in fact unwarranted. The concern would be mostly academic if the disciplinary process were a totally accurate, unerring process, never mistaken and never unfair. Unfortunately, that is not the case, and no one suggests that it is. Disciplinarians, although proceeding in utmost good faith, frequently act on the reports and advice of others; and the controlling facts and the nature of the conduct under challenge are often disputed. The risk of error is not at all trivial, and it should be guarded against if that may be done without prohibitive cost or interference with the educational process. The difficulty is that our schools are vast and complex. Some modicum of discipline and order is essential if the educational function is to be performed. Events calling for discipline are frequent occurrences and sometimes require immediate, effective action. Suspension is considered not only to be a necessary tool to maintain order but a valuable educational device. The prospect of imposing elaborate hearing requirements in every suspension case is viewed with great concern, and many school authorities may well prefer the untrammeled power to act unilaterally, unhampered by rules about notice and hearing. But it would be a strange disciplinary
system in an educational institution if no communication was sought by the disciplinarian with the student in an effort to inform him of his dereliction and to let him tell his side of the story in order to make sure that an injustice is not done. “[F]airness can rarely be obtained by secret, one-sided determination of facts decisive of rights. . . .” “Secrecy is not congenial to truth-seeking and self-righteousness gives too slender an assurance of rightness. No better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and opportunity to meet it.” . . . We do not believe that school authorities must be totally free from notice and hearing requirements if their schools are to operate with acceptable efficiency. Students facing temporary suspension have interests qualifying for protection of the Due Process Clause, and due process requires, in connection with a suspension of ten days or less, that the student be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story. The Clause requires at least these rudimentary precautions against unfair or mistaken findings of misconduct and arbitrary exclusion from school. There need be no delay between the time “notice” is given and the time of the hearing. In the great majority of cases the disciplinarian may informally discuss the alleged misconduct with the student minutes after it has occurred. We hold only that, in being given an opportunity to explain his version of the facts at this discussion, the student first be told what he is accused of doing and what the basis of the accusation is. . . . Since the hearing may occur almost immediately following the misconduct, it follows that as a general rule notice and hearing should precede removal of the student from school. We agree with the District Court, however, that there are recurring situations in which prior notice and hearing cannot be insisted upon. Students whose presence poses a continuing danger to persons or property or an ongoing threat of disrupting the academic process may be immediately removed from school. In such cases, the necessary notice and rudimentary
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Procedural Due Process
hearing should follow as soon as practicable, as the District Court indicated. In holding as we do, we do not believe that we have imposed procedures on school disciplinarians which are inappropriate in a classroom setting. Instead we have imposed requirements which are, if anything, less than a fair-minded school principal would impose upon himself in order to avoid unfair suspensions. . . . We stop short of construing the Due Process Clause to require, countrywide, that hearings in connection with short suspensions must afford the student the opportunity to secure counsel, to confront and cross-examine witnesses supporting the charge, or to call his own witnesses to verify his version of the incident. Brief disciplinary suspensions are almost countless. To impose in each such case even truncated trial-type procedures might well overwhelm administrative facilities in many places and, by diverting resources, cost more than it would save in educational effectiveness. Moreover, further formalizing the suspension process and escalating its formality and adversary nature may not only make it too costly as a regular disciplinary tool but also destroy its effectiveness as part of the teaching process. On the other hand, requiring effective notice and informal hearing permitting the student to give his version of the events will provide a meaningful hedge against erroneous action. At least the disciplinarian will be alerted to the existence of disputes about facts and arguments about cause and effect. He may then determine himself to summon the accuser, permit crossexamination, and allow the student to present his own witnesses. In more difficult cases, he may permit counsel. In any event, his discretion will be more informed and we think the risk of error substantially reduced. Requiring that there be at least an informal give-and-take between student and disciplinarian, preferably prior to the suspension, will add little to the fact-finding function where the disciplinarian himself has witnessed the conduct forming the basis for the charge. But things are not always as they seem to be, and the student will at least have the opportunity to characterize his conduct and put it in what he deems the proper context. We should also make it clear that we have addressed ourselves solely to the short suspension,
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not exceeding ten days. Longer suspensions or expulsions for the remainder of the school term, or permanently, may require more formal procedures. Nor do we put aside the possibility that in unusual situations, although involving only a short suspension, something more than the rudimentary procedures will be required. The District Court found each of the suspensions involved here to have occurred without a hearing, either before or after the suspension, and that each suspension was therefore invalid and the statute unconstitutional insofar as it permits such suspensions without notice or hearing. Accordingly, the judgment is Affirmed.
CASE NOTES 1. Procedural Due Process. In applying the Goss rationale for procedural due process, the U.S. Court of Appeals, Sixth Circuit, observed that written notice is not necessarily required prior to a hearing and suspension of a student, even when the student is thereafter taken into custody by the police. In a post-Columbine case where a student threatened to shoot another student and blow up the school, the court ruled that the student could be suspended after only an “informal give-and-take between the student and the school principal.” The student was given an opportunity to explain his version of the facts after he was told of the accusations against him. The court pointed out that Goss did not require written notice in a short-term suspension, so long as the student was given the chance to respond to charges provided to him by the relevant school disciplinarian. Williams v. Cambridge Board of Education, 370 F.3d 630 (6th Cir. 2004). 2. Procedural due process does not require school officials to contact the mother of a 10-year-old student prior to in-school detention and interrogation by administrators and police on suspicion of bringing a handgun to school as reported by classmates. Wofford V. Evans, 390 F.3d 318 (4th Cir. 2004). 3. Procedural Technicality and Hearsay. When a high school principal read statements made by teachers in an expulsion hearing, the
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students challenged, claiming that hearsay evidence could not be used in such school hearings. The U.S. Court of Appeals, Fifth Circuit, stated: There is a seductive quality to the argument— advanced here to justify the importation of technical rules of evidence into administrative hearings conducted by laymen—that, since a free public education is a thing of great value, comparable to that of welfare sustenance or the curtailed liberty of a parolee, the safeguards applicable to these should apply to it. . . . In this view we stand but a step away from the application of the strictissimi juris due process requirements of criminal trials to high school disciplinary processes, and if to high school, why not to elementary school? It will not do. Basic fairness and integrity of the fact-finding process are the guiding stars. Important as they are, the rights at stake in a school disciplinary hearing may be fairly determined upon the “hearsay” evidence of school administrators charged with the duty of investigating the incidents. We decline to place upon a board of laymen the duty of observing and applying the common-law rules of evidence. Boykins v. Fairfield Board of Education, 492 F.2d 697 (5th Cir. 1974), cert. denied, 420 U.S. 962, 92 S. Ct. 1350 (1975).
Although Boykins predates Goss v. Lopez, the hearsay principle was reaffirmed by the Fifth Circuit in Tasby v. Estes, 643 F.2d 1103 (5th Cir. 1981) (hearsay may be allowed in hearings for serious student offenses). Other courts’ opinions have been somewhat mixed concerning hearsay evidence: Foster v. Tupelo Public School District, 569 F.Supp.2d 667 (U.S.D.C., Miss., 2008) (hearsay, student was not denied procedural due process when the school district failed to reveal the identity of a fellow student who had reported that the student had cut herself); Linwood v. Board of Education, 463 F.2d 763 (7th Cir. 1972), cert. denied, 409 U.S. 1027, 93 S. Ct. 475 (1972) (hearsay may be allowed by implication in expulsion hearing); Whiteside v. Kay, 446 F. Supp. 716 (W.D. La. 1978) (hearsay may be allowed by implication at expulsion hearing); Racine Unified School District v. Thompson, 107 Wis. 2d 657, 321 N.W.2d 334 (1982) (hearsay evidence may be allowed from school teachers or staff); Fielder v. Board of Education, 346 F. Supp. 722 (D. Neb. 1972) (hearsay may not be allowed by implication at expulsion hearing);
DeJesus v. Penberthy, 344 F. Supp. 70 (D. Conn. 1972) (hearsay may not be allowed in hearing for 30-day suspension). 4. Double Jeopardy. When faced with both criminal and school disciplinary punishments, students have claimed that the constitutional prohibition against double jeopardy comes into play. In Paine v. Board of Regents of University of Texas System, 355 F. Supp. 199 (W.D. Tex. 1972), aff’d, 474 F.2d 1397 (5th Cir. 1973), a group of students faced criminal prosecution for drug use and suspension from the university. The court rejected their double-jeopardy claims: Through two separate governmental organs, the legislative branch and the Board of Regents, the State does indeed impose two successive sanctions for the same offense: judicially imposed punishment and automatic suspension from the University of Texas System. However, the state laws defining criminal conduct and authorizing its punishment are intended to vindicate public justice in regard to the individual offender while . . . the Regents’ Rule mandating . . . suspension of student drug or narcotic offenders is intended to protect the university community and the educational goals of the institution from such adverse influence as the offender may wield if he is allowed to remain a student. Thus the two sanctions imposed by the state upon plaintiffs have sufficiently different underlying purposes to permit characterization of the first as “criminal” or “punitive” and the second as “civil,” “remedial” or “administrative.” Since the Double Jeopardy Clause operates only upon sanctions of the first type successively imposed for the same offense, plaintiffs may not avail themselves of its protection here. See also Clement v. Board of Trustees of Sheridan County School District No. 2, 585 P.2d 197 (Wyo. 1978).
5. Miranda Warning. A student is not entitled to a Miranda warning prior to being questioned by school authorities. Boynton v. Casey, 543 F. Supp. 995 (D. Me. 1982); see Baxter v. Palmigiano, 425 U.S. 308, 96 S. Ct. 1551 (1976). In another case, the principal was not required to give a juvenile a Miranda warning. In re Appeal in Navajo Juvenile No. JV91000058, 901 P.2d 1247 (Ariz. Ct. App. 1995). See also S. A. v. Indiana, 654 N.E.2d 791 (Ind. Ct. App. 1995); New Jersey v. Biancamano, 666 A.2d 199 (N.J. App. Div. 1995). However, if a school police officer is acting in municipal capacity
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Procedural Due Process
and criminal prosecution of a student may result, the police officer must read the student his Miranda rights. In the Interest of R. H., 791 A.2d 331 (Pa. 2002). See J. D. v. Commonwealth, 2004 WL 136395, 42 Va. App. 329, 591 S.E.2d 721 (Va. App. 2004), student not entitled to Miranda when questioned by assistant principal. 6. Charges and Evidence. An informal discussion of the student’s offense and the circumstances of the incident may be sufficient to inform the student of the evidence against him or her. Lamb v. Panhandle Community School District No. 2, 826 F.2d 526 (7th Cir. 1987). 7. Cross-Examination. Although acknowledging that “the value of cross-examination to the discovery of truth cannot be overemphasized” Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105 (1974), the U.S. Court of Appeals for the Sixth Circuit held in 1988 that protecting student witnesses in testifying against fellow students is of paramount importance if order and discipline are to be maintained in the school. This court of appeals has discussed in some detail the rationale for differing standards of cross-examination between the criminal courts and public schools. The court states: The value of cross-examining student witnesses in school disciplinary cases, however, is somewhat muted by the fact that the veracity of a student account of misconduct by another student is initially assessed by a school administrator—in this case, the school principal—who has, or has available to him, a particularized knowledge of the student’s trustworthiness. The school administrator generally knows firsthand (or has access to school records which disclose) the accusing student’s disciplinary history, which can serve as a valuable gauge in evaluating the believability of the student’s account. Additionally, the school administrator often knows, or can readily discover, whether the student witness and the accused have had an amicable relationship in the past. Consequently, the process of cross-examining the student witness may often be merely duplicative of the evaluation process undertaken by the investigating school administrator. The value of cross-examining student witnesses in pre-expulsion proceedings must be set against the burden that such a practice would place upon school administration. Today’s public
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schools face severe challenges in maintaining the order and discipline necessary for the impartation of knowledge. . . . In this turbulent, sometimes violent, school atmosphere, it is critically important that we protect the anonymity of students who “blow the whistle” on their classmates who engage in drug trafficking and other serious offenses. Without the cloak of anonymity, students who witness criminal activity on school property will be much less likely to notify school authorities, and those who do will be faced with ostracism at best and perhaps physical reprisals. Giving due weight to the important interest a student accused of serious misconduct has in his public education, we conclude that the necessity of protecting student witnesses from ostracism and reprisal outweighs the value to the truth-determining process of allowing the accused student to cross-examine his accusers. Newsome v. Batavia Local School District, 842 F.2d 920 (6th Cir. 1988).
8. Legal Counsel. Other courts have held that a student may be entitled to have attorney representation and to cross-examine witnesses in a hearing where a long-term suspension is at stake. In this regard a North Carolina court ruled that the Due Process Clause requires that students “have the opportunity to have counsel present, to confront and cross-examine witnesses supporting the charge, or to call his own witnesses to verify his version of the incident.” In re Roberts, 150 N.C. App. 86, 563 S.E.2d 37 (2002). 9. Bias. One of the primary elements of ancient natural justice and modern procedural due process is the requirement that the hearing officer or the tribunal sitting in judgment over an offender be impartial and not be motivated by bias. The question, therefore, arises as to whether a school administrator can be both the accuser and an impartial dispenser of justice. In Brewer v. Austin Independent School District, 779 F.2d 260 (5th Cir. 1985), the Fifth Circuit said: A school administrator involved in the initiation and investigation of charges is not thereby disqualified from conducting a hearing on the charges, although the facts of an occasional case may demonstrate that a school official’s involvement in an incident created a bias “such as to preclude his affording the student an impartial hearing.”
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Where a student claimed that a principal or other administrator was biased and unable to be impartial, the court said that school administrators cannot be disqualified from hearings unless the plaintiff student can show that administrators “possessed either a pre-existing animus towards him, or had developed a bias because of their involvement in the incident, [such that] they would not have been able to act as decision-makers.” Newsome v. Batavia Local School District, 842 F.2d 920 (6th Cir. 1988). 10. New Evidence. New evidence cannot be introduced against a student before a closed session with the school board if the student is not aware of the information and it was not originally brought to the student’s attention in the notice of the hearing or in the preliminary hearing. Minimal due process requires that students have notice of the charges against them and an explanation of the evidence the authorities intend to use in the disciplinary action. See Goss v. Lopez, 419 U.S. 565, 95 S. Ct. 729 (1975); Newsome v. Batavia Local School District, 842 F.2d 920 (6th Cir. 1988). 11. Admissibility of Evidence. Procedural due process has been held denied where the accuser sent an affidavit based on a photo of the accused student and did not personally appear at the hearing. Smith v. Miller, 213 Kan. 1, 514 P.2d 377 (1973). Similarly, a student’s expulsion was invalidated by a court where the accusing teacher was not called and did not come to the hearing. Dillon v. Pulaski County Special School District, 594 F.2d 699 (8th Cir. 1979). 12. In-School Suspension. Is procedural due process required? Temporary isolation using in-school “time-out” has been held to be a de minimis punishment not interfering with property or liberty interests. Dickens by Dickens v. Johnson County Board of Education, 661 F. Supp. 155 (E.D. Tenn. 1987). In Fenton v. Stear, 423 F. Supp. 767 (W.D. Pa. 1976), school officials required a student to attend a detention hall instead of joining the class sight-seeing trip. While so confined to his small “prison,” as he called it, the student was required to do schoolwork. The court held that such punishment is de minimis and procedural due process is not required.
An informal “give-and-take” session between a school principal and students prior to a 10-day suspension may satisfy procedural due process requirements. Keough v. Tate County Board of Education, 748 F.2d 1077 (5th Cir. 1984). 13. Admission of Offense. If a student admits the offensive conduct, then there is no issue with regard to procedural errors except those errors that may pertain to the school’s determination of appropriateness of punishment. Brewer v. Austin Independent School District, 779 F.2d 260 (5th Cir. 1985).
ZERO TOLERANCE Zero tolerance can be defined as a mandatory disciplinary measure that is imposed for a specified offense. Zero-tolerance laws remove discretion from school officials by imposing set and immutable penalties. If a student breaks a prescribed rule the penalty is certain and cannot be mitigated by intervention of school officials or made more lenient. Although the goal is to make schools places of greater safety, some argue that zero-tolerance or “one-strike-andyou’re-out” laws are too harsh and unforgiving to be utilized by the schools. Zero-tolerance policies are also frequently criticized because of their arbitrary and capricious nature; however, as Zitter observes, such policies appear to be widely accepted by schools and courts and are in common usage.129 Zero tolerance does not obviate the necessity of procedural due process to produce and confirm evidence that a school rule has been broken. There still must be proof of guilt under the Goss standards of due process. What is new about zero tolerance is that once guilt is established, the penalties are uniformly applied. There is typically no sliding scale of punishment—little violations don’t merit less severe punishments. Once the tolerance line is crossed, punishments are equally severe. Court challenges that have emerged from zero-tolerance punishments can be largely categorized into certain areas; adequacy of proof of violation, 130 procedural due process ignored or insufficient to establish guilt,131 arbitrariness of applications, vagueness and over breadth of zero tolerance regulations,132 technicalities of hearing fairness, e.g., adequacy of notice, and so on.133
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Procedural Due Process
The zero-tolerance policies that have been enacted by state and local education agencies are responses to the rising tide of drugs and violence that have invaded public schools in recent years. Zero-tolerance laws were included per provision in No Child Left Behind. It states as follows: . . . [e]ach State receiving Federal funds under any title of this Act shall have in effect a State law requiring local educational agencies to expel from school for a period of not less than 1 year a student who is determined to have brought a firearm to a school, or to have possessed a firearm at a school, under the jurisdiction of local educational agencies in that State, except that such State law shall allow the chief administering officer of a local educational agency to modify such expulsion requirement for a student on a case-by-case basis if such modification is in writing.134
Therefore, in order to receive federal money, states must comply with these federal laws, local school districts have responded by implementing strong zero-tolerance policies. Cases challenging zero-tolerance policies have ranged across a wide breadth of constitutional protections, including speech, equal protection, and vagueness. Challenges to zero tolerance have generally resulted in the court’s upholding the policies if the policies comport with procedural due process requirements. In commenting on the constitutional pitfalls of zero-tolerance policies, one federal judge observed in Ratner v. Loudoun County Public Schools the following: The panic over school violence and the intent to stop it has caused school officials to jettison the common sense idea that a person’s punishment should fit his crime in favor of a single harsh punishment, namely, mandatory school suspension. Such a policy has stripped away judgment and discretion on the part of those administering it; refuting the well-established precept that judgment is the better part of wisdom.135
In spite of the reservations espoused by this judge in his concurring opinion, the majority of the Ratner court upheld the suspension of a boy who had taken a knife from a girl who had previously exhibited suicidal tendencies and threatened to slit her wrists. The knife was in a notebook, which the boy placed in his locker. Upon discovering the knife, the school principal suspended the boy for 10 days, pursuant to
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the school’s zero-tolerance policy. Upon hearing and appeal, the school superintendent extended the suspension. The Fourth Circuit ruled for the school board, even though the punishment appeared to be quite harsh in view of the circumstances. The court pointed out that its role was not to judge the wisdom of the zero-tolerance policy, but rather to determine whether proper due process procedures had been adhered to. The evidence indicated that the school board had complied with all notice and hearing procedures necessary to give the student full procedural due process.136 A problem inherent in any law that flatly imposes a penalty without weighing the facts and circumstances is that it may result in arbitrary and capricious punishment. A guilty act and a guilty mind are basic tenets in establishing guilt in criminal law. Even though school suspensions do not normally involve criminal law, there is nevertheless a consideration of whether the offender was “knowing,” “knowingly in possession,” or in “conscious possession of a weapon.” If a student is unaware of possession of a knife, then is he or she guilty of violating zero-tolerance policy? This was the issue in a Tennessee case that was decided for the student by the U.S. Court of Appeals, Sixth Circuit. 137 The facts indicated that school officials had searched the plaintiff student’s car during a school function and found a knife. The student explained that a friend had left the knife in the car, and he, the plaintiff, had no idea that it was there. The school board, on the recommendation of the school superintendent, expelled the boy, whereupon he sued. The Sixth Circuit ruled for the student, reasoning that the concept of possession of contraband in criminal proceedings implies “knowing” and “conscious possession” concepts that are not mere technicalities. Based upon this rationale, the Sixth Circuit concluded that it was irrational to expel a student for possession of a weapon when he did not know he had it.138 The “knowing possession” requirement may, however, not always result in a holding for the student. Such was the case in Alabama, where a state law requires all school boards to implement zero-tolerance policies requiring expulsion of any student who brings a firearm on to school grounds or in to school buses. A student was
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suspended for eight weeks after police officers found a gun under the front seat of her vehicle in the school parking lot.139 The evidence indicated that the girl’s mother had left the gun under the seat the night before, and the girl knew nothing about it. The state court upheld the expulsion, finding that the school district had not acted arbitrarily and that it had a compelling public interest in preventing students from bringing guns to school. However, if one sets aside the “knowing possession” issue and assuming that the school district follows constitutional due process procedures, the precedents indicate that the school district will usually prevail where students violate zero-tolerance policies. Expulsion for possession and display of a weapon has been held to be rationally related to legitimate school purpose,140 as has expulsion for three months for having a pellet gun, firing it, and injuring a student.141 Similarly, a school prevailed when challenged for denying a student’s participation in extracurricular activities for possession of a BB gun.142 In another case, the court upheld the suspension of a student who brought a pellet pistol to school and displayed it,143 and likewise in another decision, expulsion of a student was upheld because weapons possession was contrary to and in violation of the state interest in safe and secure schools.144 In some instances, the precise definition of “weapons” has been a focal point of zerotolerance litigation. Of particular note is a Michigan case where a school district adopted a dangerous weapons policy prescribing expulsion for students who had weapons in their possession in a weapon-free school zone. The school district policy prohibited weapons including BB guns; however, the State of Michigan’s Weapon-Free School Zones Act did not include BB guns within the definition of “dangerous weapons.” 145 Two students were expelled for the possession of BB guns, and at trial, the discrepancy between the school board rule and the Michigan Weapons-Free law was relied upon by the lower court to enjoin the school board’s actions. The Michigan Court of Appeals held for the school district and observed that the district had the authority to prohibit BB guns on school property, even though they were excluded from the state statute.
The school district had inherent power to discipline students, and the state statute did not prohibit the local school districts from exercising that power with regard to BB guns.146 In the final analysis, the courts will not substitute their judgment as to the wisdom of zerotolerance policies so long as student due process rights are not denied.
School Board’s Zero-Tolerance Expulsion and Denial of Class Credit for Possession of Marijuana Upheld
South Gibson School Board v. Sollman Supreme Court of Indiana, 2002. 768 N.E.2d 437.
RUCKER, Justice. Gibson Southern High School has a zerotolerance drug policy. In essence, any student found in possession of drugs is expelled from school. When a small amount of marijuana was found in the truck of junior student Trent Sollman with only three days left in the fall semester, he was not only expelled from school for the balance of the year, but also he was denied credit for all course work previously completed that semester. On review, the trial court determined that the policy of summarily denying credit to a student suspended and later expelled without regard to whether the student had completed sufficient course work to earn a passing grade prior to the suspension was arbitrary, capricious, and an abuse of discretion. Concluding that insufficient deference was given to the school’s disciplinary decision, we grant transfer and reverse in part the judgment of the trial court. Student discipline rules for the South Gibson School Corporation proscribe certain conduct including the possession of marijuana. For several years there has been in place a zero-tolerance policy concerning drugs, the application of which results in the “maximum expulsion” allowed by law. The policy has been consistently
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Procedural Due Process
applied at Gibson Southern High School as well as other schools in the South Gibson School Corporation. According to the school superintendent, after reviewing case files he found that for the twenty-year history that he has served as superintendent, “[w]hen drugs were the offense, the recommendation from the high school principal was expulsion and in each and every case it was expulsion.” Although the exact date is not clear, the record shows that Sollman attended a general assembly at the school that included grades nine through twelve. Teachers were there; the Gibson County Prosecutor was present as well as members of the Gibson County Sheriff’s Department. Drug-sniffing dogs were brought in, and there was a demonstration of how the dogs could indeed locate hidden marijuana. Underscoring the school’s zero-tolerance policy, the superintendent advised the students “[i]f we find it on your person, in your locker, or in your vehicle, then we are going to . . . consider that you will be in possession and it will be dealt with [as] an expulsion.” On December 17, 1998, a drug-sniffing dog found a small amount of marijuana in Sollman’s truck that was parked in a lot on Gibson Southern High School property. There were three days left in the fall semester. The Gibson Southern principal suspended Sollman effective immediately. He also recommended to the superintendent that Sollman be expelled and that an expulsion examiner be appointed to conduct the necessary expulsion proceedings. An expulsion examiner was appointed accordingly, and he convened a meeting at which Sollman, his parents, and legal counsel were present. After evidence was presented and arguments heard, the examiner issued a written summary of the evidence. He concluded by expelling Sollman from school. Specifically, the expulsion examiner determined “Trent Sollman will not be allowed to complete the first semester, the second semester, nor summer school of the 1998–1999 school year. He will be allowed to enter GSHS again for the fall semester of the 1999–2000 school year.” Sollman appealed to the South Gibson School Board. After a hearing, the School Board returned the matter to the expulsion examiner for further proceedings. Subsequently, the
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expulsion examiner issued a revised report again determining that Sollman would be expelled until the fall semester of the 1999–2000 school year. This determination also was appealed to the School Board, which upheld the examiner’s determination. On March 19, 1999, Sollman along with his parents filed a petition for judicial review. By that time, grades for the fall semester of 1998 had been posted, and Sollman received no grades or credits for the period. As a result, the petition for review not only challenged the expulsion but also the denial of grades and credits. After conducting a hearing, the trial court determined that the ordered expulsion must end on the last day of the spring semester and could not extend through the summer session. As for the denial of grades and credits, finding the School Board’s action arbitrary and capricious, the trial court ordered that Sollman was to be given zeros for all fall semester course work that he missed after the expulsion but was then to be given credit for those courses in which he had a passing grade after taking the zeros into account. The School Board appealed, and the Court of Appeals affirmed. Having previously granted transfer, we now affirm in part and reverse in part the judgment of the trial court. The Court of Appeals agreed with the trial court that Sollman could not be expelled beyond the last day of the spring semester. According to the Court of Appeals, the statute defining “school year,” Indiana Code section 20-10.1-2-1(a), and the statute limiting the expulsion period for misconduct in the fall semester to the “remainder of the school year,” Indiana Code section 20-8.1-5.1-14(a), were not intended to include summer school within the period of expulsion that may be imposed for conduct occurring in the fall semester. We agree and summarily affirm the Court of Appeals’ opinion on this issue. We disagree, however, that the School Board acted arbitrarily and capriciously in denying Sollman credit for the fall semester. The record shows that before the trial court Sollman took the position that “[n]othing in the statute permits the school corporation to take away credits already earned. . . . Depriving Trent Sollman of his first semester credits is a
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clear violation of due process and clearly an arbitrary and capricious act.” He cited no authority for the latter assertion. In agreeing that the school’s policy of denying credit was indeed arbitrary and capricious, the trial court acknowledged that the “action taken against Trent was consistent with the action taken in similar cases. That is, if a student is removed from school before the end of the semester, credit for that semester is not granted.” However, the trial court determined that the policy was flawed because it did not distinguish between those students who earned passing grades in spite of missed assignments and those who did not. In essence, the trial court determined that precisely because every student is treated the same, the School Board’s policy is arbitrary and capricious. A school board is an administrative body. And as with any administrative body, judicial review of its decisions is narrow. An agency decision will not be overturned unless it is purely arbitrary or an error of law has been made. We understand the sentiment implicit in the trial court’s order and expressed by some commentators concerning the harshness of socalled zero-tolerance policies. However, it is not the role of the courts “to set aside decisions of school administrators which the court may view as lacking a basis in wisdom or compassion. . . . The system of public education that has evolved in this Nation relies necessarily upon the discretion and judgment of school administrators and school board members. . . .” Wood v. Strickland. The question in this case is whether the decision of the School Board was arbitrary and capricious. We have said “[a]n action of an administrative agency is arbitrary and capricious only where there is no reasonable basis for the action.” . . . The burden of proving that the administrative action of the school was arbitrary or capricious falls on the party attempting to upset the administrative decision. Indiana Code section 20-8.1-5.1-3 provides: . . . “In all matters relating to the discipline and conduct of students, school corporation personnel stand in the relation of parents and guardians to the students of the school corporation. Therefore, school corporation personnel have the right, subject to this chapter, to take any
disciplinary action necessary to promote student conduct that conforms with an orderly and effective educational system.” . . . In turn, Indiana Code section 20-8.1-1-10(a) (2) defines expulsion in relevant part as “a disciplinary or other action whereby a student . . . is separated from school attendance for the balance of the current semester or current year unless a student is permitted to complete required examinations in order to receive credit for courses taken in the current semester or current year[.]” In this case, Sollman was not allowed to complete required examinations “in order to receive credit” for the courses he had taken during the semester. He was thus expelled as a disciplinary sanction within the meaning of the statute. And although we do not agree with the view that the statute mandates a loss of credit upon expulsion, we do acknowledge that the School Board has the discretion to impose such a sanction. In order to promote student conduct which conforms with an orderly and effective educational system, a school board could understandably reach the conclusion that the deterrent of expulsion, uncoupled from a loss of credit, may not be a deterrent sufficient enough for a student to avoid being expelled. If a student knows for example that the ultimate consequence of violating school policy is expulsion only, then the student may assume the risk of getting expelled where he has already accumulated sufficient grades to pass the semester. In that instance, the disciplinary sanction for misbehavior is appreciably lessened, leaving only a penalty students might consider an incentive to misbehave. We also note that a consistently applied policy weighs against the notion that it is arbitrary. In this case, the record shows that all students are treated the same under the school’s policy regardless of when the misconduct occurred or the status of the students’ academic standing. Deterring disciplinary problems in its school system is the basis upon which the School Board has adopted its expulsion/no credit zerotolerance policy regarding drugs. Whether the School Board should re-examine its policy is not a matter for the courts to decide. As the Court of Appeals has observed, “School officials, with their expertise in such matters, are in the best
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Sexual Harassment of Students
position to determine in their discretion what actions are reasonably necessary to carry out school purposes. . . .” We agree. As applied here, we cannot say there was “no reasonable basis” for the School Board’s action. Accordingly, Sollman failed to carry his burden of demonstrating that the School Board acted arbitrarily and capriciously in depriving him of his fall semester credits. On this issue, the judgment of the trial court is reversed. We reverse that portion of the trial court’s judgment ordering the School Board to award Sollman zeros for the fall semester course work that he missed after the expulsion and to give Sollman credit for those courses in which he had a passing grade after the zeros are taken into account. In all other respects, the judgment of the trial court is affirmed.
CASE NOTE Sollman above noted that zero-tolerance regulations in schools were fashioned from federal drug policy in the 1980s. Zero tolerance indicates that certain offenses will be severely punished and that no discretion will be allowed for deviation from or of lessening punishments. South Gibson School Board v. Sollman, 768 N.E.2d 437 (Ind. 2002).
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Sexual Harassment of Students
Title IX of the Education Amendments of 1972 and Title VII of the Civil Rights Act of 1964 are the two important federal statutes that may be used to deter sexual harassment in education programs. Title VII was designed to prevent discrimination in the workplace on the basis of race, sex, religion, color, and national origin. Title VII is, therefore, directed to employment discrimination. Title IX, on the other hand, was enacted to rid educational institutions of sex discrimination. The Office for Civil Rights (OCR) of the U.S. Department of Education is the administrative agency empowered to enforce Title IX. Title VII is enforced by the Equal Employment Opportunity Commission (EEOC). Defining sexual harassment is difficult, but basically it constitutes “the unwanted imposition of sexual requirements in the context of a
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relationship of unequal power.”147 This characterization of sexual harassment is applicable to the teacher–student relationship, wherein there exists an exploitation of a power relationship to gain sexual favors. A teacher quite obviously holds power over a student by being in a position to affect the student’s grades, academic attainments, and career choices. Title IX, therefore, seeks to prohibit unwelcome sexual behavior by any party who is in an inherently unequal position in relation to another. Two basic categories of behavior constitute sexual harassment under Title IX. The first is quid pro quo harassment, by which the teacher, administrator, or other person in power attempts to compel submission to sexual demands by conditioning rewards or punishment upon the student’s acquiescence or lack thereof. This is sometimes called bargain harassment, whereby the person in power implicitly or explicitly coerces the student into being receptive to the advances. The second category, hostile environment, encompasses behavior that causes the educational environment to become hostile, offensive, or intimidating to the student as a result of the harassment, and it may be manifested in the teacher’s mistreatment of the student solely due to gender. Originally, the implementation of Title IX was retarded by statutory language that limited its application to programs within an educational institution and not to the entire institution itself. Controversy over the application of Title IX occurred as a result of the federal government’s requirement that a private college, Grove City College, supply assurance of compliance.148 The college refused, and the U.S. Department of Education cut off the students’ federal financial assistance. The U.S. Supreme Court, in 1984, held that Title IX applied only to “programs” receiving federal assistance and not to the entire institution. Under a narrow interpretation of the statute, the Court held that the college was obliged to submit assurance of compliance for the office responsible for administration of student federal financial aid, and not for the college as a whole. This decision was the impetus for Congress to amend Title IX with the Civil Rights Restoration Act of 1988,149 correcting the loophole identified in the Grove City case. Effectively, Grove City
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narrowed the coverage not only of Title IX, but also of Title VI of the Civil Rights Act of 1964, Section 504 of the Rehabilitation Act of 1973, and the Age Discrimination Act of 1975. The Civil Rights Restoration Act of 1988 restored institution-wide application of these laws. The 1988 law added no new language to the coverage or fund termination provisions of the four acts, but it amended each of the affected statutes by adding a section defining the terms program or activity and program to make it clear that discrimination is prohibited throughout the entire institution or agency if any part is the recipient of federal financial assistance. The 1988 Act provides that the entire institution or system is covered, not just the program receiving federal assistance. If federal aid is distributed to any part of a public school district, the entire school system is subject to compliance requirements. Thus, violation of Title IX may result in the loss of federal funds to the entire school district. Private education corporations are also covered if they receive federal funding. Yet, even with the amendments of 1988, relatively few legal actions resulted until the U.S. Supreme Court held in Franklin v. Gwinnett County Public Schools150 that plaintiffs could recover compensatory and punitive damages under Title IX. With the possibility of damages as established in Franklin—as opposed to the more limited remedy of loss of federal funds to the government entity—the number of judicial actions increased dramatically. Shortly after the Franklin litigation, substantial numbers of cases began to appear involving peer-to-peer sexual harassment in the schools. In these cases, plaintiffs claim that the schools are liable for damages when students sexually harass other students. The theory supporting such allegations is premised on the plaintiffs proving that a hostile environment exists. These hostile environment cases are modeled after the Title VII hostile environment litigation. Whereas Title VII involves employeeto-employee workplace harassment, Title IX addresses employee-to-employee, employee-tostudent, and student-to-student harassment. Within the context of this litigation, it is clear that a school district is obligated to take reasonable steps to prevent sexual harassment by school employees.
Sexual harassment jurisprudence under Title IX, following Franklin, progressed through two important additional stages as prescribed by the U.S. Supreme Court in two key cases. The first, Gebser v. Lago Vista Independent School District, involved the sexual abuse of a student by a teacher. The Court ruled that liability of the school district will only accrue if an official of the school with authority to take corrective action had actual notice of the harassment and exhibited “deliberate indifference” toward correcting the situation. 151 The second stage was established in Davis v. Monroe County Board of Education,152 where the Court held that peer-topeer sexual harassment was actionable under Title IX. In this case, a fifth-grade girl was incessantly tormented by a boy in her class and the school did not remedy the problem. The Supreme Court, in reversing the lower court decision in favor of the school district, said that there was sufficient evidence to indicate that the school officials had actual knowledge of the ongoing harassment that was “severe, pervasive, and objectively offensive,” and the school had been deliberately indifferent to resolving the matter. Lower federal courts have actively applied Gebser and Davis, building up a substantial body of sexual harassment law affecting school districts. In one typical case, a federal district court in Nevada in 2004 directly followed Gebser and Davis, requiring that a plaintiff establish: that a school official, who, at a minimum, had authority to address the alleged discrimination and to institute corrective measures on the recipient’s behalf, had actual knowledge of the discrimination; and that the school official’s response failed to bring the violator into compliance and amounted to indifference to discrimination.153
DELIBERATE INDIFFERENCE Thus, the Supreme Court in both Gebser and Davis, although expanding the scope of sexual harassment liability under Title IX, nevertheless set restrictive boundaries as conditions precedent to school district liability. The Court pointed out that although Franklin had determined that a school district could be liable in damages for a teacher’s sexual harassment of a student, the case had not prescribed the parameters of that liability. In defining the “contour” of liability of
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Sexual Harassment of Students
a school district under Title IX for an employee’s harassment of another person, whether a coworker or a student, it must be determined under what circumstances the district itself is culpable. The Court concluded that Congress, in fashioning Title IX, did not intend that the aggrieved should recover damages against a school district that was unaware of the inappropriate behavior. The Court rejected the argument by the plaintiffs that the school district should be automatically liable for the acts of its employees, and it further rejected the alternative argument that the school district should be liable if it only “should have known” of the offensive act. The Court felt that either of these options would open the floodgates to litigation against school districts, making them liable for unwarranted and unknown acts of employees that were beyond the districts’ ability to control. The Court feared that such circumstances could frustrate the purposes of Title IX by diverting public funds from educational purposes to damages and legal fees. The Court said, “it does not appear that Congress contemplated unlimited recovery of damages against a funding recipient where the recipient is unaware of discrimination in its program.”154 Rather, the Court decided neither to permit sexual harassment to be imputed to a school district nor to assume that the district had constructive notice of the teacher ’s harassment when, in fact, the school district had no knowledge whatsoever of the teacher’s misconduct. Thus, the Court found that a school district could be liable only for its own official actions and not for an employee’s independent actions. The standard adopted by the Court, therefore, requires that for a school district to be liable “an appropriate person, at a minimum, an official”155 of the school district with authority to take corrective action, have actual knowledge of the sexual harassment, and fail to adequately respond. In this regard, the Court said specifically, “We think, moreover, that the response must amount to deliberate indifference to discrimination.”156 In Davis, the Supreme Court not only found a vivid example of deliberate indifference, it also took a large step in expanding the intent of Title IX to cover offenses by peers, neither of whom were subordinate to the other. Yet in both
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Gebser and Davis, the Supreme Court enunciated very restrictive applications of Title IX that are relatively easy to adhere to if school district officials are reasonably familiar with the law. In recognizing the special nature of the public school, where children will be children, the Court said that “schools are unlike the adult workplace and children may regularly interact in a manner that would be unacceptable among adults,” therefore “damages are not available for simple acts of teasing and name calling among school children . . . , even where these comments target differences in gender.”157 In summation, Franklin, Gebser, and Davis decided the following: (1) damages are available under Title IX; (2) the relevant official of the school district must have actual notice of the circumstances and have acted with deliberate indifference; (3) liability will be limited to situations in which the school has substantial control over both the harasser and the context in which the harassment occurs; and (4) the harassment must be so severe, pervasive, and objectively offensive that it discriminates against the victim and effectively deprives him or her of access to educational opportunities or benefits provided by the school.158
A Remedy in Damages Is Available for an Action to Enforce Title IX
Franklin v. Gwinnett County Public Schools Supreme Court of the United States, 1992. 503 U.S. 60, 112 S. Ct. 1028.
Justice WHITE delivered the Opinion of the Court. This case presents the question whether the implied right of action under Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681– 1688 (Title IX), which this Court recognized in Cannon v. University of Chicago, . . . supports a claim for monetary damages.
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Student Rights
Petitioner Christine Franklin was a student at North Gwinnett High School in Gwinnett County, Georgia, between September 1985 and August 1989. Respondent Gwinnett County School District operates the high school and receives federal funds. According to the complaint filed on December 29, 1988, in the United States District Court for the Northern District of Georgia, Franklin was subjected to continual sexual harassment beginning in the autumn of her tenth-grade year (1986) from Andrew Hill, a sports coach and teacher employed by the district. Among other allegations, Franklin avers that Hill engaged her in sexually oriented conversations in which he asked about her sexual experiences with her boyfriend and whether she would consider having sexual intercourse with an older man, . . . that Hill forcibly kissed her on the mouth in the school parking lot, . . . that he telephoned her at her home and asked if she would meet him socially, . . . and that, on three occasions in her junior year, Hill interrupted a class, requested that the teacher excuse Franklin, and took her to a private office where he subjected her to coercive intercourse. The complaint further alleges that though they became aware of and investigated Hill’s sexual harassment of Franklin and other female students, teachers and administrators took no action to halt it and discouraged Franklin from pressing charges against Hill. On April 14, 1988, Hill resigned on the condition that all matters pending against him are dropped. The school thereupon closed its investigation. In this action, the District Court dismissed the complaint on the ground that Title IX does not authorize an award of damages. The Court of Appeals affirmed. . . . We reverse. In Cannon v. University of Chicago, . . . the Court held that Title IX is enforceable through an implied right of action. We have no occasion here to reconsider that decision. Rather, in this case we must decide what remedies are available in a suit brought pursuant to this implied right. As we have often stated, the question of what remedies are available under a statute that provides a private right of action is “analytically distinct” from the issue of whether such a right exists in the first place. . . . Thus, although we examine the text and history of a statute to determine whether Congress intended to create a right of action, . . . we presume the availability of all appropriate remedies unless Congress has
expressly indicated otherwise. . . . This principle has deep roots in our jurisprudence. . . . “[W]here legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done.” Bell v. Hood. . . . The Court explained this longstanding rule as jurisdictional, and upheld the exercise of the federal courts’ power to award appropriate relief so long as a cause of action existed under the Constitution or laws of the United States. The Bell Court’s reliance on this rule was hardly revolutionary. From the earliest years of the Republic, the Court has recognized the power of the judiciary to award appropriate remedies to redress injuries actionable in federal court, although it did not always distinguish clearly between a right to bring suit and a remedy available under such a right. In Marbury v. Madison, 5 U.S. 137, 1 Cranch 137, 2 L. Ed. 60 (1803), for example, Chief Justice Marshall observed that our government “has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.” This principle originated in the English common law, and Blackstone described “it as a general and indisputable rule, that where there is a legal right, there is also a legal remedy, by suit or action at law, whenever that right is invaded.” 3 W. Blackstone, Commentaries 23 (1783). . . . Respondents and the United States as amicus curiae, however, maintain that whatever the traditional presumption may have been when the Court decided Bell v. Hood, it had disappeared in succeeding decades. We do not agree. . . . . . . The general rule . . . is that absent clear direction to the contrary by Congress, the federal courts have the power to award any appropriate relief in a cognizable cause of action brought pursuant to a federal statute. . . . We now address whether Congress intended to limit application of this general principle in the enforcement of Title IX. . . . Because the cause of action was inferred by the Court in Cannon, the usual recourse to statutory text and legislative history in the period prior to that decision necessarily will not enlighten our analysis. Respondents and the United States fundamentally misunderstand the nature of the inquiry, therefore, by needlessly dedicating large portions of their briefs to discussions of how the text and
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Sexual Harassment of Students
legislative intent behind Title IX are “silent” on the issue of available remedies. Since the Court in Cannon concluded that this statute supported no express right of action, it is hardly surprising that Congress also said nothing about the applicable remedies for an implied right of action. During the period prior to the decision in Cannon, the inquiry in any event is not “basically a matter of statutory construction,” as the United States asserts. . . . Rather, in determining Congress’s intent to limit application of the traditional presumption in favor of all appropriate relief, we evaluate the state of the law when the legislature passed Title IX. . . . In the years before and after Congress enacted this statute, the Court “follow[ed] a common-law tradition [and] regarded the denial of a remedy as the exception rather than the rule.” . . . [T]his has been the prevailing presumption in our federal courts since at least the early nineteenth century. In Cannon, the majority upheld an implied right of action in part because in the decade immediately preceding enactment of Title IX in 1972, this Court had found implied rights of action in six cases. In three of those cases, the Court had approved a damages remedy. . . . Wholly apart from the wisdom of the Cannon holding, therefore, the same contextual approach used to justify an implied right of action more than amply demonstrates the lack of any legislative intent to abandon the traditional presumption in favor of all available remedies. In the years after the announcement of Cannon, on the other hand, a more traditional method of statutory analysis is possible, because Congress was legislating with full cognizance of that decision. Our reading of the two amendments to Title IX enacted after Cannon leads us to conclude that Congress did not intend to limit the remedies available in a suit brought under Title IX. In the Civil Rights Remedies Equalization Amendment of 1986, 42 U.S.C. § 2000d-7, Congress abrogated the States’ Eleventh Amendment immunity under Title IX, Title VI, § 504 of the Rehabilitation Act of 1973, and the Age Discrimination Act of 1975. This statute cannot be read except as a validation of Cannon’s holding. A subsection of the 1986 law provides that in a suit against a State, “remedies (including remedies both at law and inequity) are available for such a violation to the same extent as such remedies are available for such a violation in the suit against any public or private entity other than a State.” 42 U.S.C.
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§ 2000d-7(a) (2). While it is true that this savings clause says nothing about the nature of those other available remedies, . . . absent any contrary indication in the text or history of the statute, we presume Congress enacted this statute with the prevailing traditional rule in mind. In addition to the Civil Rights Remedies Equalization Amendment of 1986, Congress also enacted the Civil Rights Restoration Act of 1987, Pub. L. 100-259, 102 Stat. 28 (1988). Without in any way altering the existing rights of action and the corresponding remedies permissible under Title IX, Title VI, § 504 of the Rehabilitation Act, and the Age Discrimination Act, Congress broadened the coverage of these antidiscrimination provisions in this legislation. In seeking to correct what it considered to be an unacceptable decision on our part in Grove City College v. Bell, . . . Congress made no effort to restrict the right of action recognized in Cannon and ratified in the 1986 act or to alter the traditional presumption in favor of any appropriate relief for violation of a federal right. We cannot say, therefore, that Congress has limited the remedies available to a complainant in a suit brought under Title IX. . . . In sum, we conclude that a damages remedy is available for an action brought to enforce Title IX. The judgment of the Court of Appeals, therefore, is reversed and the case is remanded for further proceedings consistent with this opinion. So ordered.
Misconduct by a Teacher in the Sexual Harassment of a Student Does Not Render the School District Liable under Title IX Unless a School Official Had Knowledge of the Situation and Responded with “Deliberate Indifference”
Gebser v. Lago Vista Independent School District Supreme Court of the United States, 1998. 524 U.S. 274, 118 S. Ct. 1989.
Justice O’CONNOR delivered the opinion of the Court.
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The question in this case is when a school district may be held liable in damages in an implied right of action under Title IX of the Education Amendments of 1972 . . . for the sexual harassment of a student by one of the district’s teachers. We conclude that damages may not be recovered in those circumstances unless an official of the school district who at a minimum has authority to institute corrective measures on the district’s behalf has actual notice of, and is deliberately indifferent to, the teacher’s misconduct. . . . In the spring of 1991, when petitioner Alida Star Gebser was an eighth-grade student at a middle school in respondent Lago Vista Independent School District (Lago Vista), she joined a high school book discussion group led by Frank Waldrop, a teacher at Lago Vista’s high school. . . . During the book discussion sessions, Waldrop often made sexually suggestive comments to the students. Gebser entered high school in the fall and was assigned to classes taught by Waldrop in both semesters. Waldrop continued to make inappropriate remarks to the students, and he began to direct more of his suggestive comments toward Gebser. . . . He initiated sexual contact with Gebser in the spring, when, while visiting her home ostensibly to give her a book, he kissed and fondled her. The two had sexual intercourse on a number of occasions during the remainder of the school year. Their relationship continued through the summer and into the following school year, and they often had intercourse during class time, although never on school property. Gebser did not report the relationship to school officials, testifying that while she realized Waldrop’s conduct was improper, she was uncertain how to react and she wanted to continue having him as a teacher. In October 1992, the parents of two other students complained to the high school principal about Waldrop’s comments in class. The principal arranged a meeting, at which, according to the principal, Waldrop indicated that he did not believe he had made offensive remarks but apologized to the parents and said it would not happen again. The principal also advised Waldrop to be careful about his classroom comments and told the school guidance counselor about the meeting, but he did not report the parents’ complaint to
Lago Vista’s superintendent, who was the district’s Title IX coordinator. A couple of months later, in January 1993, a police officer discovered Waldrop and Gebser engaging in sexual intercourse and arrested Waldrop. Lago Vista terminated his employment, and subsequently, the Texas Education Agency revoked his teaching license. During this time, the district had not promulgated or distributed an official grievance procedure for lodging sexual harassment complaints; nor had it issued a formal anti-harassment policy. . . . Title IX provides in pertinent part that, “[n]o person . . . shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). The express statutory means of enforcement is administrative: The statute directs federal agencies who distribute education funding to establish requirements to effectuate the nondiscrimination mandate, and permits the agencies to enforce those requirements through “any . . . means authorized by law,” including ultimately the termination of federal funding. . . . The Court held in Cannon v. University of Chicago . . . that Title IX is also enforceable through an implied private right of action, a conclusion we do not revisit here. We subsequently established in Franklin v. Gwinnett County Public Schools . . . that monetary damages are available in the implied private action. In Franklin, a high school student alleged that a teacher had sexually abused her on repeated occasions and that teachers and school administrators knew about the harassment but took no action, even to the point of dissuading her from initiating charges. . . . We [concluded] that Title IX supports a private action for damages, at least “in a case such as this, in which intentional discrimination is alleged.” . . . Franklin thereby establishes that a school district can be held liable in damages in cases involving a teacher’s sexual harassment of a student; the decision, however, does not purport to define the contours of that liability. . . . Because the private right of action under Title IX is judicially implied, we have a measure of latitude to shape a sensible remedial scheme that best comports with the statute. . . . That endeavor
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Sexual Harassment of Students
inherently entails a degree of speculation, since it addresses an issue on which Congress has not specifically spoken. . . . To guide the analysis, we generally examine the relevant statute to ensure that we do not fashion the parameters of an implied right in a manner at odds with the statutory structure and purpose. . . . As a general matter, it does not appear that Congress contemplated unlimited recovery in damages against a funding recipient where the recipient is unaware of discrimination in its programs. When Title IX was enacted in 1972, the principal civil rights statutes containing an express right of action did not provide for recovery of monetary damages at all, instead allowing only injunctive and equitable relief. . . . It was not until 1991 that Congress made damages available under Title VII, and even then, Congress carefully limited the amount recoverable in any individual case, calibrating the maximum recovery to the size of the employer. . . . Adopting petitioners’ position would amount, then, to allowing unlimited recovery of damages under Title IX where Congress has not spoken on the subject of either the right or the remedy, and in the face of evidence that when Congress expressly considered both in Title VII it restricted the amount of damages available. Congress enacted Title IX in 1972 with two principal objectives in mind: “to avoid the use of federal resources to support discriminatory practices” and “to provide individual citizens effective protection against those practices.” . . . The statute was modeled after Title VI of the Civil Rights Act of 1964, . . . which is parallel to Title IX except that it prohibits race discrimination, not sex discrimination, and applies in all programs receiving federal funds, not only in education programs. . . . The two statutes operate in the same manner, conditioning an offer of federal funding on a promise by the recipient not to discriminate, in what amounts essentially to a contract between the Government and the recipient of funds. . . . That contractual framework distinguishes Title IX from Title VII, which is framed in terms not of a condition but of an outright prohibition. Title VII applies to all employers without regard to federal funding and aims broadly to “eradicat[e] discrimination throughout the economy.” . . . Title VII, moreover, seeks to “make
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persons whole for injuries suffered through past discrimination.” . . . Thus, whereas Title VII aims centrally to compensate victims of discrimination, Title IX focuses more on “protecting” individuals from discriminatory practices carried out by recipients of federal funds. . . . Title IX’s contractual nature has implications for our construction of the scope of available remedies. When Congress attaches conditions to the award of federal funds under its spending power, . . . as it has in Title IX and Title VI, we examine closely the propriety of private actions holding the recipient liable in monetary damages for noncompliance with the condition. . . . Our central concern in that regard is with ensuring “that the receiving entity of federal funds [has] notice that it will be liable for a monetary award.” . . . If a school district’s liability for a teacher’s sexual harassment rests on principles of constructive notice or respondeat superior, it will likewise be the case that the recipient of funds was unaware of the discrimination. It is sensible to assume that Congress did not envision a recipient’s liability in damages in that situation. . . . Most significantly, Title IX contains important clues that Congress did not intend to allow recovery in damages where liability rests solely on principles of vicarious liability or constructive notice. Title IX’s express means of enforcement— by administrative agencies—operates on an assumption of actual notice to officials of the funding recipient. . . . In the event of a violation, a funding recipient may be required to take “such remedial action as [is] deem[ed] necessary to overcome the effects of [the] discrimination.” . . . While agencies have conditioned continued funding on providing equitable relief to the victim, . . . the regulations do not appear to contemplate a condition ordering payment of monetary damages, and there is no indication that payment of damages has been demanded as a condition of finding a recipient to be in compliance with the statute. . . . Presumably, a central purpose of requiring notice of the violation “to the appropriate person” and an opportunity for voluntary compliance before administrative enforcement proceedings can commence is to avoid diverting education funding from beneficial uses where a recipient was unaware of discrimination in its programs and is
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willing to institute prompt corrective measures. The scope of private damages relief proposed by petitioners is at odds with that basic objective. When a teacher’s sexual harassment is imputed to a school district or when a school district is deemed to have “constructively” known of the teacher’s harassment, by assumption the district had no actual knowledge of the teacher’s conduct. Nor, of course, did the district have an opportunity to take action to end the harassment or to limit further harassment. It would be unsound, we think, for a statute’s express system of enforcement to require notice to the recipient and an opportunity to come into voluntary compliance while a judicially implied system of enforcement permits substantial liability without regard to the recipient’s knowledge or its corrective actions upon receiving notice. . . . Moreover, an award of damages in a particular case might well exceed a recipient’s level of federal funding. . . . (Lago Vista’s federal funding for 1992–1993 was roughly $120,000). Where a statute’s express enforcement scheme hinges its most severe sanction on notice and unsuccessful efforts to obtain compliance, we cannot attribute to Congress the intention to have implied an enforcement scheme that allows imposition of greater liability without comparable conditions. . . . Because the express remedial scheme under Title IX is predicated upon notice to an “appropriate person” and an opportunity to rectify any violation, . . . we conclude, in the absence of further direction from Congress, that the implied damages remedy should be fashioned along the same lines. An “appropriate person” . . . is, at a minimum, an official of the recipient entity with authority to take corrective action to end the discrimination. Consequently, in cases like this one that do not involve official policy of the recipient entity, we hold that the damages remedy will not lie under Title IX unless an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the recipient’s behalf has actual knowledge of discrimination in the recipient’s programs and fails adequately to respond. We think, moreover, that the response must amount to deliberate indifference to discrimination. The administrative enforcement scheme presupposes that an official who is advised of a
Title IX violation refuses to take action to bring the recipient into compliance. The premise, in other words, is an official decision by the recipient not to remedy the violation. That framework finds a rough parallel in the standard of deliberate indifference. Under a lower standard, there would be a risk that the recipient would be liable in damages not for its own official decision but instead for its employees’ independent actions. . . . Applying the framework to this case is fairly straightforward, as petitioners do not contend they can prevail under an actual notice standard. The only official alleged to have had information about Waldrop’s misconduct is the high school principal. That information, however, consisted of a complaint from parents of other students charging only that Waldrop had made inappropriate comments during class, which was plainly insufficient to alert the principal to the possibility that Waldrop was involved in a sexual relationship with a student. Lago Vista, moreover, terminated Waldrop’s employment upon learning of his relationship with Gebser. . . . The number of reported cases involving sexual harassment of students in schools confirms that harassment unfortunately is an all too common aspect of the education experience. No one questions that a student suffers extraordinary harm when subjected to sexual harassment and abuse by a teacher, and that the teacher’s conduct is reprehensible and undermines the basic purposes of the educational system. The issue in this case, however, is whether the independent misconduct of a teacher is attributable to the school district that employs him under a specific federal statute designed primarily to prevent recipients of federal financial assistance from using the funds in a discriminatory manner. Our decision does not affect any right of recovery that an individual may have against a school district as a matter of state law or against the teacher in his individual capacity under state law or under 42 U.S.C. § 1983. Until Congress speaks directly on the subject, however, we will not hold a school district liable in damages under Title IX for a teacher’s sexual harassment of a student absent actual notice and deliberate indifference. We therefore affirm the judgment of the Court of Appeals. It is so ordered.
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Sexual Harassment of Students
School Board May Be Liable for Student-to-Student Sexual Harassment but Only When It Acts with “Deliberate Indifference”
Davis v. Monroe County Board of Education Supreme Court of the United States, 1999. 526 U.S. 629, 119 S. Ct. 1662.
Justice O’CONNOR delivered the opinion of the Court. Petitioner brought suit against the Monroe County Board of Education and other defendants, alleging that her fifth-grade daughter had been the victim of sexual harassment by another student in her class. Among petitioner’s claims was a claim for monetary and injunctive relief under Title IX of the Education Amendments of 1972 (Title IX). . . . The District Court dismissed petitioner ’s Title IX claim on the ground that “student-on-student,” or peer, harassment provides no ground for a private cause of action under the statute. The Court of Appeals for the Eleventh Circuit, sitting en banc, affirmed. We consider here whether a private damages action may lie against the school board in cases of student-on-student harassment. We conclude that it may, but only where the funding recipient acts with deliberate indifference to known acts of harassment in its programs or activities. Moreover, we conclude that such an action will lie only for harassment that is so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit. . . . Petitioner’s minor daughter, LaShonda, was allegedly the victim of a prolonged pattern of sexual harassment by one of her fifth-grade classmates at Hubbard Elementary School, a public school in Monroe County, Georgia. According to petitioner ’s complaint, the harassment began in December 1992, when the classmate, G. F., attempted to touch LaShonda’s breasts and genital area and made vulgar
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statements such as “I want to get in bed with you” and “I want to feel your boobs.” . . . Similar conduct allegedly occurred on or about January 4 and January 20, 1993. . . . LaShonda reported each of these incidents to her mother and to her classroom teacher. . . . Petitioner, in turn, also contacted [the teacher], who allegedly assured petitioner that the school principal . . . had been informed of the incidents. Petitioner contends that, notwithstanding these reports, no disciplinary action was taken against G. F. . . . G. F.’s conduct allegedly continued for many months. In early February, G. F. purportedly placed a door stop in his pants and proceeded to act in a sexually suggestive manner toward LaShonda during physical education class. . . . LaShonda reported G. F.’s behavior to her physical education teacher. . . . Approximately one week later, G. F. again allegedly engaged in harassing behavior, this time while under the supervision of another classroom teacher. . . . Again, LaShonda allegedly reported the incident to the teacher, and again petitioner contacted the teacher to follow up. . . . The string of incidents finally ended in midMay, when G. F. was charged with, and pleaded guilty to, sexual battery for his misconduct. . . . The complaint alleges that LaShonda had suffered during the months of harassment, however; specifically, her previously high grades allegedly dropped as she became unable to concentrate on her studies, . . . and, in April 1993, her father discovered that she had written a suicide note. . . . The complaint further alleges that, at one point, LaShonda told petitioner that she “didn’t know how much longer she could keep [G. F.] off her.” . . . Nor was LaShonda G. F.’s only victim; it is alleged that other girls in the class fell prey to G. F.’s conduct. . . . At one point, in fact, a group composed of LaShonda and other female students tried to speak with Principal Querry about G. F.’s behavior. . . . According to the complaint, however, a teacher denied the students’ request with the statement, “If [Querry] wants you, he’ll call you.” . . . Petitioner alleges that no disciplinary action was taken in response to G. F.’s behavior toward LaShonda. . . . When petitioner inquired as to what action the school intended to take against G. F., [the principal] simply stated, “I guess I’ll
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have to threaten him a little bit harder.” . . . Yet, petitioner alleges, at no point during the many months of his reported misconduct was G. F. disciplined for harassment. . . . Nor, according to the complaint, was any effort made to separate G. F. and LaShonda. . . . On the contrary, notwithstanding LaShonda’s frequent complaints, only after more than three months of reported harassment was she even permitted to change her classroom seat so that she was no longer seated next to G. F. . . . Moreover, petitioner alleges that, at the time of the events in question, the Monroe County Board of Education (Board) had not instructed its personnel on how to respond to peer sexual harassment and had not established a policy on the issue. . . . Petitioner urges that Title IX’s plain language compels the conclusion that the statute is intended to bar recipients of federal funding from permitting this form of discrimination in their programs or activities. She emphasizes that the statute prohibits a student from being “subjected to discrimination under any education program or activity receiving Federal financial assistance.” . . . It is Title IX’s “unmistakable focus on the benefited class,” . . . rather than the perpetrator, that, in petitioner’s view, compels the conclusion that the statute works to protect students from the discriminatory misconduct of their peers. Here, however, we are asked to do more than define the scope of the behavior that Title IX proscribes. We must determine whether a district’s failure to respond to student-on-student harassment in its schools can support a private suit for money damages. . . . This Court has indeed recognized an implied private right of action under Title IX, . . . and we have held that money damages are available in such suits. . . . . . . Respondents contend, specifically, that the statute only proscribes misconduct by grant recipients, not third parties. Respondents argue, moreover, that it would be contrary to the very purpose of Spending Clause legislation to impose liability on a funding recipient for the misconduct of third parties, over whom recipients exercise little control. . . . We agree with respondents that a recipient of federal funds may be liable in damages under Title IX only for its own misconduct. The recipient
itself must “exclud[e] [persons] from participation in, . . . den[y] [persons] the benefits of, or . . . subject[t] [persons] to discrimination under” its “program[s] or activit[ies]” in order to be liable under Title IX. The Government’s enforcement power may only be exercised against the funding recipient, . . . and we have not extended damages liability under Title IX to parties outside the scope of this power. . . . We disagree with respondents’ assertion, however, that petitioner seeks to hold the Board liable for G. F.’s actions instead of its own. Here, petitioner attempts to hold the Board liable for its own decision to remain idle in the face of known student-on-student harassment in its schools. In Gebser [v. Lago Vista Independent School District, 524 U.S. 274, 118 S. Ct. 1989 (1998)], we concluded that a recipient of federal education funds may be liable in damages under Title IX where it is deliberately indifferent to known acts of sexual harassment by a teacher. . . . . . . [W]e concluded in Gebser that recipients could be liable in damages only where their own deliberate indifference effectively “cause[d]” the discrimination. . . . The high standard imposed in Gebser sought to eliminate any “risk that the recipient would be liable in damages not for its own official decision but instead for its employees’ independent actions.” . . . Gebser thus established that a recipient intentionally violates Title IX, and is subject to a private damages action, where the recipient is deliberately indifferent to known acts of teacherstudent discrimination. Indeed, whether viewed as “discrimination” or “subject[ing]” students to discrimination, Title IX “[u]nquestionably . . . placed on [the Board] the duty not” to permit teacher-student harassment in its schools, . . . and recipients violate Title IX’s plain terms when they remain deliberately indifferent to this form of misconduct. We consider here whether the misconduct identified in Gebser—deliberate indifference to known acts of harassment—amounts to an intentional violation of Title IX, capable of supporting a private damages action, when the harasser is a student rather than a teacher. We conclude that, in certain limited circumstances, it does. . . . The common law, too, has put schools on notice that they may be held responsible under
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Sexual Harassment of Students
state law for their failure to protect students from the tortious acts of third parties. . . . In fact, state courts routinely uphold claims alleging that schools have been negligent in failing to protect their students from the torts of their peers. . . . This is not to say that the identity of the harasser is irrelevant. On the contrary, both the “deliberate indifference” standard and the language of Title IX narrowly circumscribe the set of parties whose known acts of sexual harassment can trigger some duty to respond on the part of funding recipients. Deliberate indifference makes sense as a theory of direct liability under Title IX only where the funding recipient has some control over the alleged harassment. A recipient cannot be directly liable for its indifference where it lacks the authority to take remedial action. The language of Title IX itself—particularly when viewed in conjunction with the requirement that the recipient have notice of Title IX’s prohibitions to be liable for damages—also cabins the range of misconduct that the statute proscribes. The statute’s plain language confines the scope of prohibited conduct based on the recipient’s degree of control over the harasser and the environment in which the harassment occurs. If a funding recipient does not engage in harassment directly, it may not be liable for damages unless its deliberate indifference “subject[s]” its students to harassment. . . . Moreover, because the harassment must occur “under” “the operations of” a funding recipient, . . . the harassment must take place on a context subject to the school district’s control. . . . Where, as here, the misconduct occurs during school hours and on school grounds—the bulk of G. F.’s misconduct, in fact, took place in the classroom—the misconduct is taking place “under” an “operation” of the funding recipient. . . . In these circumstances, the recipient retains substantial control over the context in which the harassment occurs. More importantly, however, in this setting the Board exercises significant control over the harasser. We have observed, for example, “that the nature of [the State’s] power [over public schoolchildren] is custodial and tutelary, permitting a degree of supervision and control that could not be exercised over free adults.” . . . On more than one occasion,
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this Court has recognized the importance of school officials’ “comprehensive authority . . . , consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools.” . . . The common law, too, recognizes the school’s disciplinary authority. See Restatement (Second) of Torts § 152 (1965). We thus conclude that recipients of federal funding may be liable for “subject[ing]” their students to discrimination where the recipient is deliberately indifferent to known acts of student-on-student sexual harassment and the harasser is under the school’s disciplinary authority. . . . We stress that our conclusion here—that recipients may be liable for their deliberate indifference to known acts of peer sexual harassment—does not mean that recipients can avoid liability only by purging their schools of actionable peer harassment or that administrators must engage in particular disciplinary action. . . . . . . We . . . conclude that funding recipients are properly held liable in damages only where they are deliberately indifferent to sexual harassment, of which they have actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school. . . . Whether gender-oriented conduct rises to the level of actionable “harassment” thus “depends on a constellation of surrounding circumstances, expectations, and relationships,” . . . including, but not limited to, the ages of the harasser and the victim and the number of individuals involved. . . . Courts, moreover, must bear in mind that schools are unlike the adult workplace and that children may regularly interact in a manner that would be unacceptable among adults. . . . Indeed, at least early on, students are still learning how to interact appropriately with their peers. It is thus understandable that, in the school setting, students often engage in insults, banter, teasing, shoving, pushing, and gender-specific conduct that is upsetting to the students subjected to it. Damages are not available for simple acts of teasing and name-calling among school children, however, even where these comments target differences in gender. Rather, in the context of student-on-student harassment, damages are available only where the behavior is so severe, pervasive, and objectively
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offensive that it denies its victims the equal access to education that Title IX is designed to protect. . . . The fact that it was a teacher who engaged in harassment in Franklin and Gebser is relevant. The relationship between the harasser and the victim necessarily affects the extent to which the misconduct can be said to breach Title IX’s guarantee of equal access to educational benefits and to have a systemic effect on a program or activity. Peer harassment, in particular, is less likely to satisfy these requirements than is teacher student harassment. . . . Applying this standard to the facts at issue here, we conclude that the Eleventh Circuit erred in dismissing petitioner’s complaint. Petitioner alleges that her daughter was the victim of repeated acts of sexual harassment by G. F. over a 5-month period, and there are allegations in support of the conclusion that G. F.’s misconduct was severe, pervasive, and objectively offensive. The harassment was not only verbal; it included numerous acts of objectively offensive touching, and, indeed, G. F. ultimately pleaded guilty to criminal sexual misconduct. Moreover, the complaint alleges that there were multiple victims who were sufficiently disturbed by G. F.’s misconduct to seek an audience with the school principal. Further, petitioner contends that the harassment had a concrete, negative effect on her daughter ’s ability to receive an education. The complaint also suggests that petitioner may be able to show both actual knowledge and deliberate indifference on the part of the Board, which made no effort whatsoever either to investigate or to put an end to the harassment. On this complaint, we cannot say “beyond doubt that [petitioner] can prove no set of facts in support of [her] claim which would entitle [her] to relief.” . . . Accordingly, the judgment of the United States Court of Appeals for the Eleventh Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.
CASE NOTES 1. In the Davis decision, Justice O’Connor clearly narrowed student-on-student sexual harassment by pointing out that for the
school district to be liable the sexual harassment must be so severe, pervasive, objectively offensive, and that it effectively bars the victims access to educational opportunity or benefit. Moreover, the school officials must be deliberately indifferent to the harassment. The Court further recognized that young children “may regularly interact in a manner that would be unacceptable among adults” and that young children may at times engage in an “array of immature . . . behavior,” including “simple acts of teasing and name calling.” These conditions must be taken into account in considering young student-onstudent behavior. With this in mind, the U.S. Court of Appeals, Seventh Circuit, held that a Michigan school district was not liable under Title IX where a kindergarten boy “bothered” a female classmate by doing “nasty stuff” and wanting to play with her in “funny ways” at recess. The teacher and the teacher aide put the boy in time-out and later took him to the principal’s office where the principal warned the boy not to repeat it. Two days later the boy unzipped his pants and, again, later, he and another child put their hands in the other’s pants, after which time the children were sent to the school psychologist. The boy was thereafter suspended from school for two days, but when he returned incidents occurred again. The offended girl experienced acute stress disorder as diagnosed by a counselor and a pediatrician. The parents of the plaintiff child later requested a transfer to another school which was granted immediately. In following the guidelines set forth by Justice O’Connor in Davis, the court dismissed the case, pointing out that the harassment must have a “concrete negative effect” on the victim’s education. Here the court concluded that the actions by the offending boy did not have the requisite negative effects on the girl’s education so as to constitute harassment. In supporting this conclusion, the court relied on evidence that the girl’s grades remained steady and her absenteeism did not increase. The court further concluded that even if the boy’s actions did amount to sexual harassment per O’Connor ’s definition, the
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Sexual Harassment of Students
court could not conclude that the responses by the school district were deliberately indifferent or unreasonable. Hence, this court set a very high bar for a child victim to prevail in a student-on-student sexual harassment action. Davis v. Monroe County Board of Education, 526 U.S. 629, 119 S. Ct. 1662 (1999). 2. The U.S. Court of Appeals, Sixth Circuit, has ruled that consensual sex between students cannot constitute sexual harassment for Title IX purposes. Moreover, the court held that for a school district to be found to be “deliberately indifferent,” it must have “actual knowledge” of “known facts” of the harassment; constructive knowledge will not suffice. This court pointed out that Gebser and Davis support this conclusion. Winser v. School District for the City of Pointiac, 105 Fed. Appx. 679 (6th Cir. 2004). 3. As Davis indicates, for a private action for damages to prevail under Title IX in a studenton-student sexual harassment action, first, the school board must have had “notice,” actual knowledge, of the situation and then to have been deliberately indifferent, and, second, the sexual harassment must be so severe, pervasive, and objectively offensive that it can be said to have systematically deprived the victims of access to the educational opportunities of the school. Where a second-grade boy repeatedly harassed three second-grade girls, making sexually explicit vulgar remarks and gestures, upon investigation the school required counseling for the boy and he was given suspension outof-school and in-school. The court found that as to whether there was actual notice was uncertain from the testimony of the second-grade girls and, therefore, the deliberate indifference issue was removed from consideration. The court then looked to the systemic effect that the boy’s behavior had on the girls’ educational opportunity. The facts indicated that neither the perpetrator nor the victims fully understood the words and gestures and their sexual ramifications. For defendant’s actions to have a “negative” systemic effect on the victim’s educational opportunity, this federal court reasoned that the effects of the harassment “must touch the whole or entirety of an educational program
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or activity.” To measure this broad interpretation of “systemic” educational effect, the court looked only to the girls’ grades and their demeanor in the classroom, neither of which had shown any decline. The court concluded that the girls had not suffered any negative effects due to the boy’s behavior and, thus, the school district had no liability. Hawkins v. Sarasota County School Board, 322 F.2d 1279 (11th Cir. 2003).
School Officials’ Ineffective Responses in Preventing a Female Teacher’s Sexual Harassment of a Male Student Did Not Constitute “Deliberate Indifference”
Sauls v. Pierce County School District United States Court of Appeals, 2005. 399 F.3d 1279.
BLACK, Circuit Judge. This appeal involves teacher-on-student sexual harassment. Appellants Bobby and Terri Sauls allege their son, Appellant Dustin Sauls, was sexually harassed by Beth Blythe, a former teacher at Pierce County High School. Appellants claim Pierce County School District (PCSD) violated Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 (Title IX), by ignoring the sexual relationship that allegedly developed between Dustin and Blythe. Appellants also seek to recover damages against PCSD under 42 U.S.C. § 1983, arguing PCSD is liable for Dustin’s injuries based on its custom of ignoring Blythe’s discriminatory practices. Appellants argue the district court erred when it granted summary judgment for PCSD on both counts. We affirm the district court. Dustin began attending Pierce County High School in the fall of 1998. In general, Dustin performed poorly in school. During his sophomore year, Dustin failed several classes and missed a total of 81 days of school. In addition, Dustin
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had disciplinary problems involving alcohol and marijuana use. Dustin first encountered Blythe in the first term of his freshman year, when he was taking a course taught next door to Blythe’s classroom. During the fall of 1999, the first term of his sophomore year, Dustin had Blythe as a science teacher—a class which he failed. At the time, Dustin and Blythe had nothing more than a teacher/student relationship. In the summer and early fall of 2000, their relationship became more personal. Dustin’s younger sister, Ashley, was starting high school and began participating in Flag Corps, an activity which Blythe was running at the time. Also, Blythe’s son, Ben, was starting the second grade, and Dustin’s mother was his teacher at Patterson Elementary School. Blythe started visiting the Sauls’ home on a regular basis to speak with Dustin’s mother about Ben and to drive Ashley home from Flag Corps practice. Blythe would socialize with the Sauls family during these visits, and she soon became friends with Dustin’s mother. Blythe and Dustin’s mother would discuss their personal and marital lives. Moreover, Dustin’s mother agreed to look after Ben at the elementary school, and Blythe promised to look after Dustin and Ashley in high school. The sexual relationship between Dustin and Blythe allegedly began around the end of 2000—about halfway through Dustin’s junior year. Dustin was 16 years old at the time, and under Georgia law, he had the legal capacity to consent to sex. Most of their alleged sexual encounters occurred on school grounds. Blythe would write notes to other teachers requesting that Dustin be allowed to come to her room for various reasons. Dustin primarily missed his biology class to meet with Blythe, although he missed other classes as well. In addition to their encounters on school grounds, Dustin would stay at Blythe’s home when her husband went on fishing trips, and they once met in a hotel room. During their relationship, Blythe allegedly provided Dustin with prescription drugs and pain pills. She also paid Dustin’s speeding tickets, and gave him money, clothes, and a cell phone. While the purported sexual relationship was ongoing, Dustin’s academic performance improved—he passed all his classes during the 2000/2001 school year.
On March 24, 2001, Dr. Joy Williams, who was then the assistant superintendent of the Pierce County School System, received an anonymous email alleging Blythe had inappropriate relationships with specific students. The named students had either graduated or dropped out of school. Dustin was not mentioned in the email. In response to the allegation, Dr. Williams conducted an investigation. She asked Lowell Williamson, the principal of Pierce County High School at the time, and Don Spence, the superintendent at the time, whether they knew any relevant information concerning Blythe. Williamson explained he had received a complaint in October 1998 about a potentially inappropriate relationship between Blythe and a student named Brandon Davis. Williamson investigated the allegation at that time. He spoke with Davis’ mother, who complained Blythe had been removing Davis from some of his classes. Williamson interviewed Davis, who vehemently denied having any inappropriate relationship with Blythe. Williamson also interviewed Blythe, who similarly denied the allegation. Williamson found their denials credible, and he did not uncover any evidence supporting the validity of the allegation. He warned Blythe to always keep her conduct with students beyond reproach and to avoid any situation that could be viewed as inappropriate. After interviewing Davis and Blythe, Williamson informed Superintendent Spence of the allegation and the results of his investigation. During his discussion with Dr. Williams in the spring of 2001, Williamson indicated he had not observed any inappropriate conduct by Blythe, and he had not received any other accusations against her. He provided Dr. Williams with a copy of his notes from the 1998 investigation. After discussing the 1998 allegation, Williamson and Dr. Williams interviewed Blythe about the March 2001 email. Once again, Blythe strongly denied any misconduct. Dr. Williams warned Blythe, orally and in writing, to avoid even the appearance of impropriety in her dealings with students. Dr. Williams told Blythe to avoid any potentially suspect situations where she would be alone with male students at school or other social functions. In July 2001, Dr. Williams—who, by that time, had been promoted to superintendent—received
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Sexual Harassment of Students
a phone call from a “concerned citizen” claiming to have seen Blythe’s and Dustin’s vehicles parked in the woods. The anonymous caller did not claim to have witnessed any sexual or inappropriate acts between Dustin and Blythe. Dr. Williams promptly notified the Pierce County Board of Education about this allegation. She also reported the matter to the Professional Standards Commission (PSC), the Georgia entity responsible for investigating allegations of unethical behavior by educators. Dr. Williams explicitly requested PSC to conduct an investigation of Blythe’s behavior. In addition, Dr. Williams discussed the allegation with the local police department. Dr. Williams also directed the high school’s new principal, Anthony Smith, to prevent any unnecessary contact between Blythe and Dustin. Dr. Williams instructed Smith to monitor their activities and to report any suspicious behavior to her. Throughout the fall of 2001, Smith and other members of the high school staff often stopped Dustin in the hallway and questioned him about what he was doing and where he was going. Furthermore, Smith interviewed Dustin and expressly asked him whether he was engaged in an inappropriate relationship with Blythe. Dustin assured Smith that he and Blythe did not have such a relationship. Dustin has now admitted that he lied to Smith and other school officials to conceal the nature of his relationship with Blythe. At the time, Dustin also lied to his parents when they asked him about his relationship with Blythe. Based on Dr. Williams’ request, PSC also conducted an investigation of Blythe during the fall of 2001. John Grant, who was heading PSC’s investigation, interviewed Dustin and his father. They both denied that any inappropriate relationship existed. Grant also called Dustin’s mother, who stated she did not believe Dustin was involved in an illicit relationship with Blythe. Moreover, Blythe denied any wrongdoing during her interview with Grant. As part of his investigation, Grant interviewed some former students of the high school, including Davis. Davis now admitted to Grant that he did have a sexual relationship with Blythe while he was a student. Davis also, however, admitted he concealed this relationship and denied its existence when questioned by school officials at the time.
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In early December 2001, a substitute teacher discovered a note addressed to Blythe, which Dustin admittedly had written. In the note, Dustin demanded three things from Blythe . . . “. . . I get what I want or I tell what they want to hear.” He later explained in his deposition that the three things he had demanded from Blythe were (1) to receive $100, (2) to get his cell phone back, and (3) to have sex with her at a specific time. After discovery of the note, Dr. Williams again interviewed Blythe, who continued to deny having any sexual involvement with Dustin. Nonetheless, she resigned her teaching position on December 20, 2001. On May 9, 2002, Blythe voluntarily surrendered her teaching certificate. On June 27, 2002, Appellants filed a complaint in federal district court, alleging PCSD, among others, remained idle in the face of known teacher-on-student harassment. Appellants argued Title IX was violated because Blythe’s harassment of Dustin was ignored and allowed to continue. In addition, Appellants sought to recover damages for Dustin’s injuries under § 1983. The district court granted summary judgment for PCSD with respect to both claims. This appeal followed. . . . Title IX provides, in pertinent part, that “[n]o person . . . shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance. . . .” 20 U.S.C. § 1681(a). The Supreme Court has recognized an implied private right of action under Title IX for cases involving intentional sexual discrimination, and it has held money damages are available in such lawsuits. The Court also has established that a teacher’s sexual harassment of a student constitutes actionable discrimination for the purposes of Title IX. Our analysis in cases involving teacher-onstudent sexual harassment is governed by the Supreme Court’s decision in Gebser v. Lago Vista Independent School District. . . . In Gebser, the Supreme Court held a school district will not be liable in damages under Title IX for teacheron-student sexual harassment “unless an official of the school district who at a minimum has authority to institute corrective measures on the district’s behalf has actual notice of, and is deliberately indifferent to, the teacher’s
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misconduct.” The Court defined the deliberate indifference standard as “an official decision by the recipient [of federal funds] not to remedy the violation.” Although it reached the correct conclusion, the district court relied on the legal standard applicable in Title IX claims based on studenton-student sexual harassment. The Supreme Court has applied a more rigorous standard when a Title IX plaintiff seeks damages against a school district for student-on-student harassment. See Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 650-53, 119 S. Ct. 1661, 1675-76, 143 L. Ed. 2d 839 (1999). The Court explained student-on-student harassment will rise to the level of actionable discrimination under Title IX only if the harassment is “sufficiently severe.” The Court concluded that to prevail on a Title IX claim based on student-on-student harassment, the plaintiff must establish not only that the school district was deliberately indifferent to known acts of harassment, but also that the harassment was “so severe, pervasive, and objectively offensive that it denie[d] its victims the equal access to education that Title IX is designed to protect.” Because this case involves teacher-on-student harassment, Appellants need not establish Blythe’s misconduct was “so severe, pervasive, and objectively offensive” that it denied Dustin equal access to educational programs or opportunities. Title IX plaintiffs, like Appellants, seeking to recover damages against a school district for teacher-on-student sexual harassment must establish two things to survive summary judgment: (1) a school district official with the authority to take corrective measures had actual notice of the harassment; and (2) the official with such notice was deliberately indifferent to the misconduct. In this case, Appellants argue PCSD violated Title IX because it was aware of Blythe’s sexual relationship with Dustin and other students, and it was deliberately indifferent to stopping her harassment. We disagree. The parties dispute when PCSD received the actual notice required under Gebser. Appellants contend PCSD had actual notice of Blythe’s misconduct in either October 1998 (the Davis allegation) or March 2001 (the anonymous email). PCSD, on the other hand, asserts it did not
receive notice until June 2001, when Dr. Williams received the phone call about Dustin’s and Blythe’s vehicles being parked in the woods. We need not, however, address the actual notice issue because regardless of whether PCSD had the requisite notice in October 1998, March 2001, or July 2001, Appellants’ Title IX claim fails because they cannot demonstrate PCSD officials acted with deliberate indifference at any of these times. Rather, PCSD officials sufficiently responded to each report of misconduct they received. Therefore, our decision rests on Gebser’s requirement that the school district act with deliberate indifference. . . . In this case, each time PCSD officials received a complaint concerning Blythe, they responded in a fashion similar to that of the school officials in Davis. PCSD officials responded to the reports in October 1998, March 2001, and July 2001 by investigating the allegations and interviewing the relevant parties. School officials also consistently monitored Blythe’s conduct and warned her about her interaction with students. Even if we assume, without deciding, PCSD had actual notice of Blythe’s harassment in October 1998, it did not respond with deliberate indifference at that time. Principal Williamson started an investigation the day after he received the complaint about Blythe and Davis. Williamson interviewed the two separately, and they both denied the allegation. He also spoke with Davis’ mother. Williamson, who had been a school administrator for over 15 years, determined Davis’ and Blythe’s denials were credible. This conclusion was reinforced by two assistant principals, who similarly found Davis’ denial trustworthy. Williamson was unable to find any evidence supporting the allegation that Blythe was engaged in an inappropriate relationship with Davis. Like the principal in Davis, Williamson did not observe any misconduct by Blythe and he did not receive any further complaints about her until March 2001. Even though Williamson failed to find any evidence supporting the allegation, he nonetheless issued a warning to Blythe. He directed Blythe to avoid any situation that could be construed as inappropriate and warned that her interaction with students must always be beyond reproach. Williamson notified his superior,
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Sexual Harassment of Students
former Superintendent Spence, of his investigation and conclusions. Under Davis, Williamson’s response to the 1998 complaint did not constitute deliberate indifference. Assuming PCSD officials had actual notice in March 2001, they again did not respond with deliberate indifference. After Dr. Williams, the assistant superintendent at the time, received the anonymous email, she investigated the allegation. She quickly learned none of the students named in the email still attended Pierce County High School, and one of the students, Davis, had been the subject of an investigation in 1998. Dr. Williams interviewed the superintendent, Spence, and the high school principal, Williamson, about Blythe’s behavior with students. Principal Williamson explained he was unable to find any evidence to support the 1998 complaint concerning Davis, and he provided Dr. Williams with a copy of his notes from that investigation. Dr. Williams, along with Principal Williamson, interviewed Blythe about the email, and she, once again, vehemently denied the allegations. Although PCSD still did not have any evidence of misconduct by Blythe, Dr. Williams took corrective action. Because the email only referred to former students, Dr. Williams did not have the option of removing any of the students from Blythe’s classes. Dr. Williams did, however, admonish Blythe both orally and in writing, and directed her to avoid even the appearance of impropriety when dealing with students. Similar to the warning issued in Davis, Dr. Williams also instructed Blythe to avoid situations where she would be alone with male students. Based on these actions, we conclude PCSD was not deliberately indifferent to the March 2001 allegation. Finally, PCSD officials instituted several corrective measures in response to the July 2001 phone call, which alleged Dustin’s and Blythe’s cars had been seen parked in the woods. This phone call was the first time PCSD had received a report specifically linking Blythe with Dustin. Soon after receiving the phone call, Dr. Williams contacted the Professional Standards Commission (PSC) and requested that it investigate Blythe. PSC complied with this request and assigned John Grant to conduct an investigation
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during the fall of 2001. Dr. Williams also notified the Pierce County Board of Education and the local police department about the allegation. She instructed the new high school principal, Smith, to closely monitor Blythe and Dustin, to prevent any unnecessary contact between the two, and to report any suspicious behavior. That fall, whenever Smith or other members of the high school staff observed Dustin near Blythe’s classroom, they questioned him about his purpose and destination. Smith also separately interviewed Dustin and Blythe about the allegations. Dustin and Blythe denied the existence of any illicit relationship. They also denied any misconduct when interviewed by Grant. It is undisputed that Dustin lied to school officials and his parents when questioned about his relationship with Blythe. School officials finally received more concrete evidence of an inappropriate relationship when Dustin’s explicit note was discovered in December 2001. Shortly after being confronted with this note, Blythe resigned her teaching post at Pierce County High School. She also surrendered her teaching certificate in the spring of 2002. In light of the many corrective measures taken by Dr. Williams and other school officials, we cannot conclude PCSD was deliberately indifferent to the allegation raised in July 2001. In summary, we conclude Appellants’ Title IX claim fails under the deliberate indifference standard. Even when we draw all reasonable inferences for Appellants, they cannot create a genuine issue of material fact that PCSD acted with deliberate indifference. Although PCSD officials ultimately may have been ineffective in preventing Blythe’s harassment of Dustin, they did not act with deliberate indifference. The district court, therefore, correctly granted summary judgment for PCSD on Appellants’ Title IX claim. Appellants further argue PCSD should be held liable for Dustin’s injuries under § 1983. It is well established that municipalities, like a school district, may not be held liable under § 1983 based on a theory of respondeat superior. To impose liability on a municipality under § 1983, the plaintiff must identify a municipal “policy” or “custom” causing the deprivation of federal rights. . . .
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The Court further explained “it is not enough for a § 1983 plaintiff merely to identify conduct properly attributable to the municipality.” Rather, “[a] plaintiff must show that the municipal action was taken with the requisite degree of culpability, i.e., that the municipal action was taken with ‘deliberate indifference’ to its known or obvious consequences.” Thus, the deliberate indifference standard applies in § 1983 claims alleging a municipality is liable for its failure to prevent a deprivation of federal rights. In this case, Appellants argue PCSD is liable under § 1983 for the deprivation of Dustin’s rights because it had a custom of ignoring Blythe’s sexual harassment of students. However, as we explained in our analysis of Appellants’ Title IX claim, there is no evidence demonstrating PCSD officials were deliberately indifferent to the reports of alleged misconduct by Blythe. Thus, Appellants cannot establish PCSD had a custom of responding to Blythe’s alleged discriminatory actions with deliberate indifference. Accordingly, we conclude the district court did not err in granting summary judgment for PCSD on Appellants’ § 1983 claim. For the foregoing reasons, we affirm the district court’s grant of summary judgment for PCSD on Appellants’ Title IX and § 1983 claims.
CASE NOTE Section 1983 Liability for Sexual Harassment. In 2009 the U.S. Supreme Court held that Title IX was not the exclusive mechanism for addressing gender discrimination in schools, and it is not a substitute for a Section 1983 suit for damages for violation of a constitutional right. Title IX and Section 1983 may complement each other. A Title IX plaintiff can establish school district liability by showing that a single school administrator was deliberately indifferent to a harassment claim. Section 1983 damages, on the other hand, can be claimed by a school district for violating the Equal Protection Clause by showing that the harassment was the result of school district custom, policy, or practice. The Supreme Court said that, “Because Title IX’s protections are narrower in some respects and broader in others than those guaranteed by the Equal Protection Clause, the Court cannot agree. . . that
Title IX (is) the sole means of correcting unconstitutional gender discrimination.” Section 1983 claims can be brought against individuals as well as state entities, such as school districts. Fitzgerald v. Barnstable School District, ___ U.S. ___, 129 S.Ct. 788 (2009). For example, a school principal may be individually liable under Section 1983 for deliberate indifference to sexual harassment between a teacher and a student or student and student. Liability of supervisors, such as school principals, may be established if the plaintiff can demonstrate: (1) that the supervisor had actual or constructive knowledge that his subordinate was engaged in conduct that posed a pervasive and unreasonable risk of constitutional injury to citizens like the plaintiff; (2) that the supervisor’s response to that knowledge was so inadequate as to show deliberate indifference to or tacit authorization of the alleged offensive practices; and (3) that there was an affirmative causal link between the supervisor’s inaction and the particular constitutional injury suffered by the plaintiff . . .
A constitutional injury brought under Section 1983 may render the principal liable if her “supervisory indifference or tacit authorization” of a teacher ’s misconduct was a causative factor in a constitutional injury. In Baynard v. Malone, a Virginia case, the school principal had ample reason to know of a male teacher ’s sexual harassment of a male student and took no action. Deliberate indifference is more blameworthy than mere negligence. A school district may be liable if a school official who has authority to act for the school district is deliberately indifferent; however, if the school principal does not have such authority to act on behalf of the school district, then the school district may not be liable for the principal’s deliberate indifference. Where the school principal is not acting on behalf of the school district or the superintendent, then the principal could possibly be separately liable. This is the rather unusual rationale advanced by the U.S. Court of Appeals, Fourth Circuit, in absolving a Virginia school district from liability for a school principal’s “deliberate indifference” to sexual misconduct of a teacher. Baynard v. Malone, 268 F.3d 228 (4th Cir. 2001).
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Child Abuse
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Child Abuse159
Although child abuse and neglect are ageless, only recently have they been given national attention.160 Commencing in 1962, state legislatures began enacting legislation designed to deal with problems of child abuse and neglect, and in 1974, a federal statute, the Child Abuse Prevention and Treatment Act, was enacted.161 The purpose of this legislation was to provide federal financial assistance to the states that had implemented programs for the identification, prevention, and treatment of instances of child abuse and neglect.162 Currently, all 50 states plus the District of Columbia, Puerto Rico, and the Virgin Islands have enacted various forms of child abuse and neglect statutes.163 A component of the 1974 Act was the National Center on Child Abuse and Neglect, which developed the Model Child Protection Act (Model Act).164 The Model Act has been used extensively throughout the nation for development of individual state child abuse legislation.165 The Model Act includes the following succinct definition of child abuse and neglect: [C]hild abuse and neglect means the physical or mental injury, sexual abuse, negligent treatment, or maltreatment of a child under the age of eighteen by a person who is responsible for the child’s welfare under circumstances which indicate that the child’s health or welfare is harmed or threatened thereby, as determined in accordance with regulations prescribed by the Secretary.166
Commonly contained within state child abuse and neglect statutes is a purpose statement that outlines the intent of the legislation. Typically, the primary purpose of child abuse and neglect statutes is to identify children who are being abused or neglected so that state protection may be provided.167 Often, a state desires to preserve “the family life of the parents and children, where possible, by enhancing parental capacity for adequate child care.”168 In contrast with the rather general federal definition of child abuse and neglect, state definitions tend to be more specific, as typified by the Virginia definition: Abused or neglected child shall mean any child less than eighteen years of age whose parents or other person responsible for his care:
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1. Creates or inflicts, threatens to create or inflict, or allows to be created or inflicted upon such a child a physical or mental injury by other than accidental means, or creates a substantial risk of death, disfigurement, impairment of bodily or mental functions; 2. Neglects or refuses to provide care necessary for his health; provided, however, that no child who in good faith is under treatment solely by spiritual means through prayer in accordance with tenets and practices of a recognized church or religious denomination shall for that reason alone be considered to be an abused or neglected child; or 3. Abandons such child; or 4. Commits or allows to be committed any sexual act upon a child in violation of the law.169
Nearly all states have accepted the federal definition of “child” as a person under the age of 18, but they vary widely in regard to definitions of abuse and neglect.170 Some states provide separate definitions of what constitutes child abuse and neglect, whereas other states have not attempted to distinguish between them.171 In a recent survey of state child abuse statutes, child abuse and neglect were defined as follows: Implicit in most definitions of abuse is that the injury is deliberately inflicted. Abuse includes bodily violence (beating, squeezing, poisoning, burning, cutting, and exposing to heat or cold); sexual molestation (ranging from inappropriate fondling to intercourse); and psychological or mental injury (insults and accusations, prevention of sleep, and sensory overload relating to light, sound, pain, itching, stench, and aversive taste). Neglect is generally an omission—a failure to provide for a child’s physical or emotional needs or both. Neglect includes deprivation of physiological necessities such as drink, nourishment, clothing, shelter, and sanitation. In addition, neglect encompasses the failure to fulfill psychological needs for sensory stimulation and social communication. These parental failures do not amount to neglect, however, if they are beyond the parents’ control.172
REPORTING An integral component of state child abuse and neglect statutes is the mandated reporting of suspected instances of child abuse and neglect by certain professionals. Initially, child abuse and neglect legislation required only
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physicians to report instances of suspected child abuse and neglect.173 Currently, in addition to medical personnel, such as nurses, surgeons, medical examiners or coroners, dentists, osteopaths, optometrists, chiropractors, and podiatrists, other professionals including school teachers and officials, police, peace or law enforcement officers, social workers, and day-care personnel often are required to report instances of child abuse and neglect. 174 Forty-nine states have mandated that teachers report to certain authorities suspected instances of child abuse and neglect. . . .175 If the reports of suspected child abuse and neglect are determined to be unfounded, teachers are said to fear possible liability suits for slander, libel, defamation of character, invasion of privacy, and breach of confidence. However, all states have enacted legislation which grants immunity to reporters of child abuse and neglect from criminal and civil liability if the report is made in good faith. For example, the Virginia immunity statute states: “A person making a report . . . shall be immune from any civil or criminal liability in connection therewith unless it is proven that such person acted with malicious intent. . . .”176 A 1985 Oregon case, McDonald v. State 177 serves to illustrate the statutory immunity granted reporters of child abuse and neglect. In this case, a teacher observed scratches on the neck of one of her pupils and had him examined by a child development specialist. When questioned about how he had acquired the scratches, the child told two stories. One version attributed the scratches to his kitten, and the second version suggested that the child’s mother had made the scratches by choking him, as the child said she had done on several occasions. The principal was informed, who in turn instructed the child development specialist to report the incident to the state Children’s Services Division. The child was removed from parental custody and placed in a foster home. Subsequently, the parents appeared in court, where the allegations of child abuse were ruled groundless and the child reinstated with his parents. The parents brought suit against the Children’s Services Division, principal, teacher, and others. The court dismissed the parents’ complaint and indicated that, even though two versions of the derivation of
scratches were told and the principal relied upon the opinion of the child development specialist only, both the principal and teacher had acted in good faith and had reasonable grounds to report suspected child abuse.
PENALTY FOR FAILURE TO REPORT In order to gain compliance from those persons required to report instances of child abuse and neglect, most states permit the assessment of penalties for knowing and willful failure to report.178 Most states have enacted criminal penalties for those persons guilty of not reporting suspected cases of child abuse and neglect.179 Some states have legislated both criminal and civil penalties, and a few states provide only for civil remedies.180 Those states that have established criminal penalties for persons found guilty of not reporting instances of child abuse and neglect commonly classify such an offense as a misdemeanor.181 Punishments normally include fines up to $1,000, jail sentences up to one year, or both.182 The threat of criminal prosecution, possibly due to inaction by persons responsible for initiating criminal proceedings, has not resulted in high levels of reporting compliance by teachers. As a result, some interest is being given to initiation of civil suits against teachers for their failure to report instances of child abuse and neglect. Civil liability may be imposed against teachers who fail to report instances of child abuse and neglect in states that either have not specified penalties for nonreporters or have established criminal sanctions. In Landeros v. Flood,183 the court ruled that a physician could be held civilly liable for injuries sustained by a child if he had negligently failed to diagnose and report suspected child abuse. However, teachers failing to report instances of child abuse and neglect are much more vulnerable to civil suits in states that have legislatively established provisions of civil liability for mandatory reporters.184 Included within child abuse and neglect statutes for most states that provide criminal penalties for failure of mandatory reporters to report instances of child abuse and neglect are statements such as “reasonable cause to believe,” “cause to believe,” 185 or, as in the
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Child Abuse
case of Oklahoma, “reason to believe.”186 Such statements are considered to provide an objective standard on which to determine compliance. 187 Less rigorous statements, such as “knows or suspects,” are considered to provide a subjective standard and one that may permit mandatory reporters to shield their own poor judgments. 188 Regardless of whether the standard is objective or subjective, a teacher charged with failure to report suspected child abuse and neglect under the criminal code of a state likely will attempt to show that there was no “reasonable cause to believe” that child abuse and neglect had occurred.189 In regard to civil liability for the failure to report instances of suspected child abuse and neglect, the teacher will have to defeat allegations of negligence.190
Reasonable Force in Paddling a Student Does Not Constitute Child Abuse
Arkansas Department of Human Services v. Caldwell Court of Appeals of Arkansas, Division II, 1992. 39 Ark. App. 14, 832 S.W.2d 510.
ROGERS, Judge. The Department of Human Services appeals from the decision of the Baxter County Circuit Court reversing the agency’s finding of some credible evidence of abuse, as allegedly perpetrated by appellee, Pat Caldwell, and thereby directing the removal of appellee’s name from the State Central Registry. . . . On Thursday, September 22, 1988, appellee, who is an assistant principal at the Guy Berry Middle School in Mountain Home, paddled three fifth grade students who had been caught smoking on the playground. . . . In the presence of another teacher as a witness, the child in question received three licks with a wooden paddle, as did another one of the girls, while the third child only received one lick, as she
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did not actually smoke the cigarette. The girls were also instructed to write a report on smoking. The following afternoon, the child’s mother noticed bruises on her daughter’s buttocks. Feeling that the bruises had resulted from the spanking, the mother contacted school officials and then reported the paddling to the Baxter County Division of Children and Family Services as an incident of suspected child abuse. The assigned caseworker met with the child and her mother the next morning and took pictures of the child’s buttocks. Upon completing the investigation, which included interviews with appellee and school personnel, and after consulting with her area manager, the caseworker “substantiated” the allegation of child abuse and forwarded a written report of the investigation for recordation in the State Central Registry, as is required pursuant to Ark. Code Ann. § 12-12-508 (1987). Appellee then requested administrative review of this determination, seeking to expunge her name from the registry. A hearing was held on May 31, 1989, after which the hearing officer issued an order in which she found “some credible evidence” to substantiate the occurrence of abuse. Appellee appealed to the circuit court, which reversed the agency’s decision and directed that appellee’s name be stricken from the registry. This appeal followed. As its first issue, appellant contends that the trial court erred in determining that the hearing officer’s findings were not supported by some credible evidence. We disagree. Under the School Discipline Act, it is stated that any teacher or school principal may use corporal punishment in a reasonable manner against any pupil for good cause in order to maintain discipline and order within the public schools. Ark. Code Ann. § 6-18-505(c) (1987). For our purposes here, “abuse” is defined as any nonaccidental physical injury inflicted on a child by anyone legally responsible for the care and maintenance of the child, or an injury which is at variance with the history given. . . . The question upon review in the circuit court is whether there is some credible evidence of alleged abuse to support the maintenance of the alleged abuser’s name in the State Central Registry. . . . At the administrative hearing, appellee testified that she was in charge of the school that day because the principal was absent. She said that
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she learned of the infraction from another teacher, and that, before deciding to paddle the children, she called another administrator for advice as to the appropriate punishment, stating that it was a difficult decision since this was the first incident of smoking she had confronted involving children in that age group. Appellee questioned the girls both separately and together. . . . Appellee testified that she followed the normal routine in administering the paddling, which included obtaining another teacher as a witness. The children were first made to tell the witness what they had done wrong, and when paddled, each were told to bend over and touch their knees, so that the buttocks would be easily hit, and to look forward, rather than at her, to hopefully prevent them from moving. She said that the child remained still while she was being paddled, and that she gave her three “average” swats. She denied that she paddled the child in anger, and said that she would not have expected the child to have bruised from the paddling that she gave. She felt that she had spanked her appropriately and had not abused her, and that the only thing she could think of was that the child was wearing a thin dress that day. The witness, Patricia Wallace, a fourth grade teacher, testified that she was positioned in front of the children as they were being paddled, and that the child displayed little reaction to the paddling. She said that she witnesses about half of the paddlings that occur at the school, and remarked that the licks in this instance were not out of the ordinary or excessive, but that they were rather light. She stated that appellee was calm, and not angry when she spanked these children. Michelle Ervin, the school nurse, saw the child on Monday, September 26th, four days after the paddling. In her report, she stated that she observed four very faint bruises which were each about three quarters of an inch in diameter. She said that there was no swelling or other abrasions in the area. In her testimony, she said that she had to kneel and get about eight inches away before the bruises could be seen. The child also testified at the hearing. She related that her behind was sore after the paddling, particularly when she sat down, and she felt that she was being hit hard when she was spanked. She said that she cried both before and after the paddling. She further testified that
appellee was disappointed in her for smoking, but not angry. The child’s mother testified that she learned of the spanking the next day when appellee directed the child to telephone her from school because the child had someone else sign her name to the note which was sent home to inform her of the paddling. She said that, when her daughter got home that afternoon, she looked at the child’s buttocks and observed bruises after the child had explained to her how badly the spanking had hurt and that it hurt to sit down. The mother agreed that the child deserved a spanking for what she had done, but she felt that the paddling was excessive, stating that “it was just too hard.” She said that her daughter bruised often, but “normal” in comparison to other children. Jennifer Baker, the caseworker who investigated the report, testified that after she had completed the interviews she did not feel that appellee had been abusive. In substantiating the allegation, she said that the deciding factor was that marks were left from the paddling. She related that according to the department’s policy she must substantiate an allegation of abuse if bruises remain after a twenty-four-hour period. Because of this policy, she stated that she was compelled to substantiate the allegation in this case since bruises had resulted from the paddling. John Hangen, Ms. Baker’s supervisor, who advised her in reaching a decision on this matter, testified it was the agency’s position that, “if there is bruising, it is abusive and with bruising, we substantiate abuse.” He said that his staff is directed to consider that discipline which results in bruising is excessive and physically abusive. He explained that the department needed to have a guideline, and that the guideline was that bruising is abusive. Based on our review of the testimony and the photographs that were taken, we must agree with the decision of the circuit court reversing the agency’s determination. In so holding, we are impressed with the caseworker’s testimony that she did not feel that the paddling was abusive, and that substantiation was based solely on the evidence of bruising. We do not believe that one factor, standing alone and applied as a litmus test, without consideration of all the attendant circumstances, is an appropriate measure to be used in all cases for determining whether
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Summation of Case Law
an allegation of abuse is to be substantiated. There must be some exercise of judgment, as this is an area which does not lend itself to facile determination. On this record, we uphold the circuit court’s finding of no credible evidence to support the allegation of abuse, and its finding that the punishment was not excessive or abusive. . . .
CASE NOTES 1. In another Arkansas case, a report was made that a middle school principal hit a student three times on the buttocks with a wooden paddle. The Department of Human Services investigated and concluded there was “some credible evidence of child abuse.” The principal appealed to the circuit court, which found the allegations unsubstantiated, but the law required even unsubstantiated charges to be retained on the central registry for three years. The principal challenged this as a violation of due process and equal protection. The court ruled there was no violation to retain “unsubstantiated” charges in the central registry for three years, and it therefore refused to direct registry expurgation of the charges. Arkansas Department of Human Services v. Heath, 312 Ark. 206, 848 S.W.2d 927 (1993). 2. In an Illinois case where a teacher was placed on the state register for suspected child abuse, the court ruled placement on the state register implicates a federal liberty interest and invades the due process interest of the teacher. Cavarretta v. Department of Children and Family Services, 277 Ill. App. 3d 16, 214 Ill. Dec. 59, 660 N.E.2d 250 (Ill. App. Ct. 1996). 3. The Alabama Supreme Court has held that the Alabama Child Abuse Reporting Act imposes a duty on an individual to make a report, but there was no intent to impose civil liability for failure to report. The Act provides that the failure to report constitutes a misdemeanor with a punishment of no more than six months’ imprisonment or a fine of no more than $500. C. B. v. Bobo, 659 So.2d 98 (Ala. 1995). 4. Where a teacher grabbed a student and left a “mark,” the court found no “abuse.” Moreover, the act did not constitute excessive corporal punishment. Korunka v. Department of Children and Family Services, 259 Ill. App. 3d 527, 197 Ill. Dec. 537, 631 N.E.2d 759 (Ill. App. Ct. 1994).
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Due Process and Vagueness 1. Vagueness of a state statute, or a rule, regulation, or policy of a school may offend due process. 2. First Amendment rights are not absolute and may be subject to time, manner, and place restrictions so long as those restrictions are narrowly tailored to serve legitimate governmental interests. 3. Schools may restrict expressive activity if such activity materially disrupts class work or involves substantial disorder or invasion of rights of others. 4. For purposes of a vagueness analysis, a school’s disciplinary rules need not be drafted as narrowly or with the same precision as criminal statutes. Cruel and Unusual Punishment and Due Process 1. The cruel and unusual punishment clause of the Eighth Amendment was designed to protect those convicted of a crime and circumscribes the criminal process in three ways: it limits the kinds of punishment that can be imposed on those convicted of crimes, it proscribes punishment that is grossly disproportionate to severity of crime, and it imposes substantive limits on what can be made criminal and punished as such. It does not apply to public schools. 2. The Due Process Clause does not require notice and a hearing prior to imposition of corporal punishment in public schools. That practice is authorized and limited by common law. Substantive Due Process 1. Due process is required only when a decision of the state implicates an interest within protection of the Fourteenth Amendment. 2. “Liberty” and “Property,” within the meaning of the Due Process Clause of the Fourteenth Amendment, is implicated where public school authorities, acting under color of state law, deliberately punish a child for misconduct by restraint and/or infliction of appreciable physical pain, or by exclusion from an education.
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3. Liberty and property interests are the two basic aspects of substantive due process. Liberty interests of the individual include “good name, reputation, honor, or integrity,” the deprivation of which by the state violates due process of law. 4. Students have a property interest in attending school that is created by existing state laws that secure the entitlement of education. 5. Students also have a due process interest that protects them against “conscience shocking” actions by school districts or public officials and, too, have a due process interest in not being governed by rules that are so vague or uncertain that they can be applied arbitrarily and capriciously by school officials. Procedural Due Process 1. The cryptic and abstract words of the Due Process Clause, at a minimum, require that the deprivation of life, liberty, or property by adjudication be preceded by notice and an opportunity for a hearing appropriate to the nature of the case. 2. At a minimum, public school students facing suspension and its consequent interference with a protected property interest must be given some kind of notice and afforded some kind of a hearing. The timing and content of the notice and the nature of hearing will depend on appropriate accommodation of the competing interests involved. 3. The Due Process Clause forbids arbitrary deprivations of liberty. 4. The interpretation and application of the Due Process Clause are intensely practical matters and the very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation. 5. Procedural due process encompasses two basic standards of fairness: (a) The rule against bias and (b) the right to a hearing. Procedural due process of a student before severe disciplinary measures are taken requires the following: (1) adequate notice, (2) impartial tribunal, (3) opportunity to be heard, (4) opportunity to present evidence on witnesses, (5) chance to challenge evidence or witnesses, (6) right of attorney presence if extreme discipline is at stake and (7) decision and rationale must be made available to student.
6. The Due Process Clause requires, in connection with suspension of a public school student for 10 days or less, that the student be given oral or written notice of the charge against him and an explanation of evidence the authorities have and an opportunity to present his side of the story. There need be no delay between the time that notice is given and the time of the hearing since in the great majority of the cases the disciplinarian may discuss the alleged misconduct with the student minutes after it has occurred. Students whose presence imposes a continuing danger to persons or property or an ongoing threat of disrupting academic process may be immediately removed from school, and in such cases the necessary notice and rudimentary hearing should follow as soon as practicable. Title IX, Sexual Harassment 1. Title IX of the Education Amendments of 1972 is enforceable through an implied right of action. A damages remedy is available for action brought to enforce Title IX. Title IX prohibits exclusion from participation in, denial of benefits of, or discrimination under any education program or activity receiving federal financial assistance. 2. A student who was allegedly subjected to sexual harassment and abuse can seek monetary damages under Title IX for alleged intentional gender-based discrimination. 3. An implied private right of action against a school district for monetary damages under Title IX will not lie by reason of a teacher’s sexual harassment of the student in absence of actual notice imparted to a school district official having, at a minimum, the authority to institute corrective measures on school district’s behalf. 4. Liability without actual notice to the school district would frustrate the essentially protective purpose of the statute. The statue’s express remedial scheme is predicated upon notice to an “appropriate person” and an opportunity to rectify the violation. Deliberate Indifference 1. A cause of action against a school district for monetary damages under Title IX will not lie by reason of a teacher’s having engaged in
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Research Aids
2.
3.
4.
5.
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sexual relationship with a student where the district lacked actual notice of the teacher’s conduct and district officials were not “deliberately indifferent” to the offense. A high school principal’s receipt of complaints from parents of several students that a teacher made inappropriate comments during class may not, of itself, be sufficient to constitute “actual notice” that the teacher was having a sexual relationship with a student. A private damages action may lie against a school board under Title IX in cases of studenton-student harassment, but only where the school officials act with deliberate indifference to the known facts of the harassment in its programs or activities, and only for harassment that is so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to educational opportunity or benefit. Direct liability may be imposed on a school district under Title IX on the theory of “deliberate indifference” to sexual harassment only where the district has some control over the alleged harassment. A school district cannot be directly liable for indifference where the official with knowledge of the act lacks the authority to take remedial action. A school district’s liability in money damages for sexual harassment under Title IX is limited to circumstances wherein the recipient exercises substantial control over both the harasser and the context in which the known harassment occurs.
Research Aids
Research citations below are abbreviated as: American Law Reports (A.L.R.), American Jurisprudence (Am.Jur.), Corpus Juris Secundum (C.J.S.), and McQuillen Municipal Corporations (McQuillen Mun.Corp.). Explanations for each of these sources of law are found in Chapter 1 of this text. Also, see Appendix B of this book. 77 Am.Jur.2d Vagrancy and Related Offenses § 9. In Specific Locations—Schools. 5 1 A . L . R . 3 d 111 . C ru e l a n d U n u s u a l Punishment. 20 Am.Jur. Proof of Facts 2d 511. Teacher ’s Use of Excessive Corporal Punishment.
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6 Am.Jur.2d Assault and Battery § 97. Civil Liability for Corporal Punishment. 89 A.L.R.2d 396. Criminal Liability for Excessive or Improper Punishment Inflicted on a Child by Parent, Teacher, or One In Loco Parentis. 67B Am.Jur.2d Schools § 319. Students Discipline and Punishment: Corporal Punishment; Determination of Reasonableness. 58 A.L.R.2d 903. Right of Student to a Hearing on Charges before Suspension or Expulsion. 67B Am.Jur.2d Schools § 334. Procedural Rights of Students Facing Suspension or Expulsion. 15A Am.Jur.2d Colleges and Universities § 31. Students: Dismissal and Expulsion. 16D C.J.S. Constitutional Law § 1984. Schools and Education: Particular Applications of Due Process Guaranty. 158 A.L.R. Fed. 563. Sex Discrimination in Public Education under Title IX—Supreme Court Cases. 15 Am.Jur.2d Civil Rights § 338. Sex Discrimination in Education, Prohibited by Title IX— Sexual Harassment. 13 Causes of Action 2d 1. Cause of Action Under State Law Against Public School for Sexual Harassment of Student by School Personnel or Other Student. 51 A.L.R.Fed 285. Vicarious Liability of Superior Under 42 U.S.C.A. § 1983 for Subordinate’s Acts in Deprivation of Civil Rights. 22 Am.Jur.2d Damages § 589. Exemplary or Punitive Damages of Employers, Principals, and Corporations for Act of Employees, Agents, and Officers. 27 Am.Jur.2d Employment Relationship § 392. Employment Relationship: Liability for Negligent Hiring, Retention, or Supervision. 197 A.L.R. Fed. 289. Right of Action Under Title IX of Education Amendments of 1972 Against School or School District for Sexual Harassment of Student by Student’s Teacher or Other School District Employee. 14A C.J.S. Civil Rights § 426. Federal Remedies: Persons Liable Under Title IX of the Education Amendments of 1972. 36 A.L.R. 6th 475. Constitutional Challenges to State Child Abuse Registries. 42 Am.Jur.2d Infants § 818. Power of State: Infants; Protection from Abuse or Danger to Health or Morals.
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Law Reviews
Emily Gold Waldman, “Regulating Student Speech: Suppression Versus Punishment,” 85 Ind.L.J. 1113, Summer 2010. Nora M. Findlay, “Should There Be Zero Tolerance for Zero Tolerance School Discipline Policies?” 18 Education & Law Journal 103, October 2008. C. C. Swisher, “Constitutional Abuse of Public School Students: An Argument for Overruling Ingraham v. Wright,” 8 Whittier J. Child & Fam. Advoc. 3, Fall 2008. Jill Grim, “Peer Harassment in our Schools: Should Teacher and Administrators Join the Fight?” 10 Barry L. Rev. 155, Spring 2008. Susan H. Bitensky, “The Poverty of Precedent for School Corporal Punishment’s Constitutionality Under the Eighth Amendment,” 77 U. Cin. L. Rev. 1327, Summer 2009. Youssef Chouhound and Perry A. Zirkel, “The Goss Progeny: An Empirical Analysis,” 45 San Diego L. Rev. 353, May–June 2008. Deana Pollard Sacks, “State Actors Beating Children: A Call for Judicial Relief,” 42 U.C. Davis L. Rev. 1165, April 2009. Grayson Sang Walker, “The Evolution and Limits of Title IX Doctrine on Peer Sexual Assault,” 45 Harv. C.R.C.L. L. Rev. 95, Winter 2010. Diane Heckman, “Title IX and Sexual Harassment Claims Involving Educational Athletic Department Employees and Student Athletes in the 21st Century,” 8 Va. Sports & Ent. L.J. 223, Spring 2009. Sandra J. Perry and Tanya M. Marcum, “Liability for School Sexual Harassment Under Title IX: How the Courts Are Failing Our Children,” 30 U.La Verne L. Rev. 3, November 2008. Justin F. Paget, “Did Gebser Cause the Metastasization of the Sexual Harassment Epidemic in Educational Institutions? A Critical Review of Sexual Harassment Under Title IX Ten Years Later,” 42 U. Rich. L. Rev. 1257, May 2008. Alice Farmer and Kate Stinson, “Failing the Grade: How the Use of Corporal Punishment in U.S. Public Schools Demonstrates the Need for U.S. Ratification of the Children’s Rights Convention and the Convention on the Rights of Persons with Disabilities,” 54 N.Y.L. Sch. L. Rev. 1035, 2009/2010.
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Endnotes
1. Newton Edwards, The Courts and the Public Schools (Chicago: University of Chicago Press, 1955), p. 604. 2. State ex rel. Burpee v. Burton, 45 Wis. 150, 30 Am. Rep. 706 (1878). 3. Ibid. 4. Thomas Hobbes, Leviathan (New York: Collier, Macmillan, 1962), p. 132. Hobbes conveyed the newly published Leviathan to Mr. Francis Godolphin, Paris, April 15–25, 1651. 5. Edward Hallett Carr, The Twenty Years’ Crisis, 1919– 1939 (New York: Harper Torchbooks, Harper and Row Co., 1964; originally published in 1939), p. 42. 6. Ibid. 7. Ibid. 8. State v. Randall, 79 Mo. App. 226 (1899). 9. See Lander v. Seaver, 32 Vt. 114, 76 Am. Dec. 156 (1859). See also William Blackstone, Commentaries on the Laws of England, 4 vols. (Chicago and London: The University of Chicago Press, 1979; originally published 1765). 10. Ibid. 11. Ibid. 12. Ibid. 13. Richardson v. Braham, 125 Neb. 142, 249 N.W. 557 (1933). 14. New Jersey v. T. L. O., 469 U.S. 325, 105 S. Ct. 733 (1985). 15. Ginsberg v. New York, 390 U.S. 629, 88 S. Ct. 1274 (1968); Board of Education of Island Trees v. Pico, 457 U.S. 853, 102 S. Ct. 2799 (1982). 16. Bethel School District No. 403 v. Fraser, 478 U.S. 675, 106 S. Ct. 3159 (1986). 17. Erwin Chemerinsky, Constitutional Law: Principles and Policies (New York: Aspen Law and Business, 2002), p. 523. 18. Hurtado v. California, 110 U.S. 516, 4 S. Ct. 111 (1884). 19. Meyer v. Nebraska, 262 U.S. 390, 43 S. Ct. 625 (1923). See also Adkins v. Children’s Hospital, 261 U.S. 525, 43 S. Ct. 394 (1923). 20. Valley National Bank of Phoenix v. Glover, 62 Ariz. 538, 159 P.2d 292 (1945). 21. Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798). In Calder, the Court engaged in a debate over whether it had the authority under natural law to overrule the legislation of the Connecticut legislature. 22. See Lloyd L. Weinreb, Natural Law and Justice (Cambridge, Mass.: Harvard University Press, 1987), pp. 224–265. 23. Parenthetically, it should be observed that England has an unwritten constitution that has the force of law, but is simply a collection of conventions, traditions, judicial legal precedents, and parliamentary acts. 24. See D. D. Raphael, Problems of Political Philosophy (London: Macmillan, 1989), pp. 102–103. 25. John E. Nowak, Ronald D. Rotunda, and J. Nelson Young, Constitutional Law (St. Paul, Minn.: West, 1986), p. 332. 26. Ibid.
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Endnotes 27. Ibid. 28. Ibid. 29. Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678 (1965). 30. Ibid. 31. Ibid. 32. Ibid. 33. Ibid. 34. Pierce v. the Society of Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510, 45 S. Ct. 571 (1925). 35. Prince v. Massachusetts, 321 U.S. 158, 64 S. Ct. 438 (1944). 36. Meyer v. Nebraska, 262 U.S. 390, 43 S. Ct. 625 (1923); see Pierce v. Society of Sisters, op. cit. 37. Meyer v. Nebraska, op. cit. 38. Ibid., see Pierce v. Society of Sisters, op. cit. 39. Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir.), cert. denied, 368 U.S. 930, 82 S. Ct. 368 (1961). 40. Tinker v. Des Moines Independent School District, 393 U.S. 503, 89 S. Ct. 733 (1969). 41. Ibid., 393 U.S. at 505, 89 S. Ct. at 735. See also Meyer v. Nebraska, op. cit.; Bartels v. Iowa, 262 U.S. 404, 43 S. Ct. 628 (1923); Pierce v. Society of Sisters, op. cit.; West Virginia Board of Education v. Barnette, 319 U.S. 624, 63 S. Ct. 1178 (1943). 42. Goss v. Lopez, 419 U.S. 565, 95 S. Ct. 729 (1975). 43. Ibid., 419 U.S. at 565, 95 S. Ct. at 732 (1975). 44. Board of Regents v. Roth, 408 U.S. at 577, 92 S. Ct. at 2709. 45. Meyer v. Nebraska, op. cit. 46. Board of Regents v. Roth, 408 U.S. at 571, 92 S. Ct. 2706. 47. Goss v. Lopez, op. cit. 48. Ibid. 49. Graham v. Connor, 490 U.S. 386, 109 S. Ct. 1865 (1989). 50. County of Sacramento v. Lewis, 523 U.S. 833, 118 S. Ct. 1708 (1998). 51. Ibid. 52. Ibid. 53. Ibid. 54. See Bank of Columbia v. Okely (4 Wheat.) 235 (1819); Hurtado v. California, 110 U.S. 516, 4 S. Ct. 111 (1884). 55. County of Sacramento v. Lewis, op. cit. 56. Ibid. 57. Ibid. 58. Nowak, Rotunda, and Young, Constitutional Law, p. 369. 59. Ibid., p. 370. 60. NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 78 S. Ct. 1163 (1958); Bates v. Little Rock, 361 U.S. 516, 80 S. Ct. 412 (1960). 61. Harper v. Virginia State Board of Elections, 383 U.S. 663, 86 S. Ct. 1079 (1966); Carrington v. Rash, 380 U.S. 89, 85 S. Ct. 775 (1965). 62. Shapiro v. Thompson, 394 U.S. 618, 89 S. Ct. 1322 (1969). 63. See Douglas v. California, 372 U.S. 353, 83 S. Ct. 814 (1963) (right to counsel); Mayer v. Chicago, 404 U.S. 189, 92 S. Ct. 410 (1971) (right to transcript); Bounds v. Smith, 430 U.S. 817, 97 S. Ct. 1491 (1977) (right to legal materials and access to courts).
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64. Goss v. Lopez, op. cit. 65. San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S. Ct. 1278, reh’g denied, 411 U.S. 959, 93 S. Ct. 1919 (1973); Papasan v. Allain, 478 U.S. 265, 106 S. Ct. 2932 (1986). 66. Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701 (1972); Perry v. Sindermann, 408 U.S. 593, 92 S. Ct. 2694 (1972). 67. Boddie v. Connecticut, 401 U.S. 371, 91 S. Ct. 780 (1971); Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817 (1967). 68. Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, reh’g denied, 410 U.S. 959, 93 S. Ct. 1407 (1973); Skinner v. Oklahoma, 316 U.S. 535, 62 S. Ct. 1110 (1942) (reproductive ability—sterilization). 69. 67B Am.Jur.2d Schools § 318. See Daily v. Board of Education of Morrill County School District No. 62, 256 Neb. 73, 588 N.W.2d 813 (1999). 70. Ibid. 71. Corales v. Bennett, 567 F.3d 554, 244 Ed.Law.Rep. 1045 (9th Cir. 2009). 72. Richard Lawrence, School Crime and Juvenile Justice (New York: Oxford University Press, 2007), p. 183. 73. Ibid., p. 184. 74. Ibid. 75. Baker v. Owen, 395 F. Supp. 294 (M.D.N.C. 1975), aff’d without opinion, 423 U.S. 907, 96 S. Ct. 210 (1975). 76. Hogenson v. Williams, 542 S.W.2d 456 (Tex. App. 1976). 77. Hutton v. State, 23 Tex. App. 386, 5 S.W. 122 (1887). 78. Clements v. Board of Trustees of Sheridan County School District No. 2, 585 P.2d 197 (Wyo. 1978); see also 53 A.L.R.3d 1124; 68 Am.Jur.2d Schools §§ 256, 266. 79. Nicholas B. v. School Committee, 412 Mass. 20, 587 N.E.2d 211 (1992). 80. Howard v. Colonial School District, 621 A.2d 362 (Del. Super. 1992). 81. Ingraham v. Wright, 430 U.S. 651, 97 S. Ct. 1401 (1977). 82. 42 U.S.C. § 1983. 83. Gregory T. Gledhill, “Up a Creek . . . But Not Without a Paddle: Public School Corporal Punishment in the Fifth Circuit,” 13 Geo. Mason U. Civ. Rts. L. J. 121 (Winter 2003). 84. Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473 (1961). 85. Ingraham v. Wright, op. cit. 86. Ibid. 87. Ibid. 88. Ibid. 89. Moore v. Willis Independent School District, 233 F.3d 871 (5th Cir. 2000). 90. Ibid. 91. Cunningham v. Beavers, 858 F.2d 269 (5th Cir. 1988). 92. Hall v. Tawney, 621 F.2d 607 (4th Cir. 1980). 93. Ibid. 94. Metzger v. Osbeck, 847 F.2d 518 (3rd Cir. 1988). 95. Saylor v. Board of Education, 118 F.3d 507 (6th Cir. 1997); Webb v. McCullough, 828 F.2d 1151 (6th Cir. 1987). 96. Garcia v. Miera, 817 F.2d 650 (10th Cir. 1987). 97. H. H. v. Moffett, 335 Fed. Appx. 306 (4th Cir. 2009). 98. Neal v. Fulton County Board of Education, 229 F.3d 1069 (11th Cir. 2000). 99. Saylor v. Board of Education, op. cit.
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100. Metzger v. Osbeck, op. cit. 101. Wise v. Pea Ridge School District, 855 F.2d 560 (8th Cir. 1988). 102. Garcia v. Miera, op. cit. 103. Peterson v. Baker, 504 F.3d 1331 (11th Cir. 2007). 104. Ibid. 105. Ibid. 106. Ibid. 107. Kirkland v. Greene County Board of Education, 347 F.3d 903 (11th Cir. 2003). 108. P.B. v. Koch, 93 F.2d 518 (9th Cir. 1996). 109. Peterson v. Baker, op. cit., quoting Johnson v. Glick, 481 F.2d 1028 (2nd Cir. 1973). 110. Dixon v. Alabama State Board of Education, 294 F.2d 150, cert. denied, 368 U.S. 930, 82 S. Ct. 368 (1961). 111. Hobson v. Bailey, 309 F. Supp. 1393 (W.D. Tenn. 1970); Zanders v. Louisiana State Board of Education, 281 F. Supp. 747 (W.D. La. 1968). 112. Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 71 S. Ct. 624 (1951) (concurring opinion of Justice Frankfurter). 113. Dixon v. Alabama State Board of Education, op. cit. For an excellent discussion of procedural due process, see William G. Buss, “Procedural Due Process for School Discipline: Probing the Constitutional Outline,” 119 University of Pennsylvania Law Review, pp. 545–641 (1971). 114. Due v. Florida Agricultural and Mechanical University, 233 F. Supp. 396 (N.D. Fla. 1963). 115. Goss v. Lopez, op. cit. 116. Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893 (1976). 117. Ibid. 118. See Erwin Chemerinsky, Constitutional Law: Principles and Policies, 2nd ed. (New York: Aspen Law and Business, 2002), pp. 558–559. 119. Ibid. at p. 560. 120. Ibid. 121. Nowak, Rotunda, & Young, op. cit., p.583. 122. Board of Curators v. Horowitz, 435 U.S. 78, 98 S. Ct. 948 (1978); see also Regents of the University of Michigan v. Ewing, 474 U.S. 214, 106 S. Ct. 507 (1985). 123. Goss. V. Lopez, 419 U.S. 565, 95 S. Ct. 729 (1975). 124. Nowak, Rotunda, & Young, op. cit., p. 577. 125. Goss v. Lopez, op. cit. 126. Ibid. 127. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S. Ct. 1487 (1985). 128. Goss v. Lopez, op. cit. 129. Jay M. Zitter, “Validity, Construction, and Operation of School ‘Zero Tolerance’ Policies Towards Drugs, Alcohol, or Violence,” 117 A.L.R. 5th 459 (2004). 130. J.M. v. Webster County Board of Education, 207 W.Va. 496, 534 S.E.2d 50 (2000). 131. A. G. v. Sayreville Board of Education, 333 F.3d 417 (3rd Cir. 2003). 132. Fuller v. Decatur Public School Board of Education, 78 F. Supp. 2d 812 (C.D. Ill. 2000), affirmed on other grounds, 251 F.3d 662 (7th Cir. 2001); In Interest of T.H. III, 681 So.2d 110 (Miss. 1996). 133. Colvin ex rel. Colvin v. Lowndes County, 114 F. Supp. 2d 504 (N.D. Miss. 1999).
134. 20 U.S.C. § 7151 (WestLaw 2001). 135. Ratner v. Loudoun County Public Schools, 2001 WL 855606 (4th Cir. 2001). 136. Ibid. 137. Seal v. Morgan, 229 F.3d 567 (6th Cir. 2000). 138. Ibid. 139. Enterprise City Board of Education v. C.P. ex rel. J.P., 698 So.2d 131 (Ala. Civ. App. 1996) 140. Escatel v. Atherton, 2001 WL 755280 (N.D. Ill. 2001). 141. Rogers v. Gooding Public Joint School District No. 231, 20 P.3d 16 (Idaho 2001). 142. Peterson v. Independent School District, No. 811, 999 F. Supp. 665 (D. Minn. 1998). 143. Spencer v. Unified School District, No. 501, 935 P.2d 242 (Kan. App. 1997). 144. Cathe A. v. Doddridge County Board of Education, 490 S.E.2d 340 (W.Va. 1997). 145. Davis v. Hillsdale Community School District, 573 N.W.2d 77 (Mich. App. 1997). 146. Ibid. 147. C. MacKinnon, “Sexual Harassment of Working Women; A Hidden Issue,” as cited in Donna Greff Schneider, “Sexual Harassment and Higher Education,” 65 Texas Law Review, pp. 25, 46 (1987). 148. Grove City College v. Bell, 465 U.S. 555, 104 S. Ct. 1211 (1984). 149. Public Law 100–259. 150. Franklin v. Gwinett County Public Schools, 503 U.S. 60, 112 S. Ct. 1028 (1992). 151. Gebser v. Lago Vista Independent School District, 524 U.S. 274, 118 S. Ct. 1989 (1998). 152. Davis. V. Monroe County Board of Education, 562 U.S. 629, 119 S. Ct. 1661 (1999). 153. Doe A. v. Green, 298 F. Supp. 2d 1025 (D. Nev. 2004). 154. Gebser v. Lago Vista Independent School District, op. cit. 155. Ibid. 156. Ibid. 157. Davis v. Monroe County Board of Education, op. cit. 158. Mary Becker, Cynthia Grant Bowman, and Morrison Torrey, Feminist Jurisprudence: Taking Women Seriously (St. Paul, Minn.: West Group, 2001), p. 841. 159. This section reprinted with permission, Richard G. Salmon and M. David Alexander, “Child Abuse and Neglect: Implications for Educators,” 28 Ed. Law Rep., pp. 9–19 (1986). 160. Marjorie R. Freiman, “Unequal and Inadequate Protection under the Law: State Child Abuse Statutes,” 50 George Washington Law Review, no. 2, pp. 243–44 (January 1982). 161. Ibid., p. 252. 162. Public Law 93–247, 88 Stat. 4 (1974) [codified as amended at 42 U.S.C.A. §§ 5101–5107]. 163. Freiman, op. cit. 164. 42 U.S.C.A. § 5112. 165. Freiman, op. cit., pp. 253–54. 166. 42 U.S.C.A. § 5102. 167. Freiman, op. cit., p. 254. 168. Va. Code Ann., Ch. 12.1, § 63.1–248.1 (1950). 169. Ibid., § 63.1–248.2. 170. Freiman, op. cit., pp. 252–69.
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Endnotes 171. Arthur Schwartz and Harold Hirsh, “Child Abuse and Neglect: A Survey of the Law,” 28 Medical Trial Technique Quarterly, pp. 298–302 (Winter 1982). 172. Freiman, op. cit., p. 247. 173. Jody Aaron, “Civil Liability for Teachers’ Negligent Failure to Report Suspected Child Abuse,” 28 Wayne Law Review, p. 187 (1981). 174. Sanford N. Katz et al., “Legal Research on Child Abuse and Neglect: Past and Future,” XI Family Law Quarterly, no. 2, p. 151 (Summer 1977). 175. Freiman, op. cit., p. 259. 176. Va. Code Ann., § 63.1–248.5 (1950). 177. McDonald v. State, 71 Or. App. 751, 694 P.2d 569, 22 Ed. Law Rep. 1001 (1985).
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178. Freiman, op. cit., p. 263. 179. Ibid. 180. Ibid. 181. Schwartz and Hirsh, op. cit., p. 311. 182. Ibid. 183. Landeros v. Flood, 17 Cal. 3d 399, 131 Cal. Rptr. 69, 551 P.2d 389 (1976). 184. Aaron, op. cit. 185. Schwartz and Hirsh, op. cit., p. 304. 186. Okla. Stat. Ann., tit. 21, § 846. 187. Freiman, op. cit., pp. 260–261. 188. Ibid. 189. Schwartz and Hirsh, op. cit., pp. 304–305. 190. Aaron, op. cit., p. 191.
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CHAPTER 11
Rights of Students with Disabilities Without care and compassion, there can be no justice. —Robert C. Solomon
CHAPTER OUTLINE ■
INTRODUCTION
■
A HISTORY OF NEGLECT
■
LEAST-RESTRICTIVE ENVIRONMENT
■
PLACEMENT IN PRIVATE SCHOOLS
Inclusion
The Turning Point
The Burlington Test
The Mills Case ■
EDUCATION FOR ALL HANDICAPPED CHILDREN ACT (EAHCA)
■
INDIVIDUALS WITH DISABILITIES EDUCATION ACT (IDEA)
Children with Disabilities in Sectarian Schools
Amendments to the EAHCA
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■
RELATED SERVICES
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DISCIPLINE AND THE “STAY-PUT” PROVISION The “Stay-Put” Provision
The 1997 Amendments to the IDEA
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COMPENSATORY EDUCATION
The 2004 Amendments to the IDEA
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ATTORNEY’S AND EXPERT’S FEES
Interpretation of the IDEA
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REHABILITATION ACT OF 1973, SECTION 504
FREE APPROPRIATE PUBLIC EDUCATION Extended School Year
Difference Between Section 504 and the IDEA
Regression–Recoupment Dilemma
Section 504 and AIDS The IDEA and AIDS
Procedural Safeguards ■
INDIVIDUALIZED EDUCATION PROGRAMS
■
SUMMATION OF CASE LAW
■
ATTENTION DEFICIT HYPERACTIVITY DISORDER
■
RESEARCH AIDS
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A History of Neglect
■
Introduction
Programs for children with disabilities were slow to develop in public schools. Meager financial resources and public apathy combined to prevent significant efforts to extend an equal educational opportunity to persons with disabilities until relatively recently. Starting in the 1940s through the 1960s, several states distributed categorical funds to local school districts for handicapped programs. A few states required local school districts to establish programs for children with disabilities to receive state foundation program allocations, but such efforts were not comprehensive and failed to address the special needs of most children with disabilities, particularly those who were severely disabled. It was not until the latter part of the 1960s and early 1970s that pervasive concern for the equality of educational opportunity swept the nation. During the Johnson presidency, that concern expanded to touch persons with disabilities. The watershed in the development of these programs in public schools, however, came with a few key court decisions and the federal government’s landmark legislation in 1975 entitled the Education for All Handicapped Children Act (EAHCA).1 The original Education for All Handicapped Children Act, signed on November 29, 1975, by President Gerald R. Ford, was amended in 1978, 1983, 1986, 1990, 1997, and 2004. The law has the appellation of the Individuals with Disabilities Education Act (IDEA) with the optional addition of “Improvement” added in 2004, making it IDEIA. In 1997 and 2004, Congress reauthorized and amended the IDEA,2 reaffirming the intent of the law and seeking to address several of the issues that have emerged in litigation since 1975. These amendments also expanded the purpose of the law beyond that of merely requiring access to further require an emphasis on the measurement of outcomes for preparing children with disabilities for employment and independent living.3 To better understand the recent court cases interpreting this federal legislation, it is instructive to briefly review the antecedents of the provision of educational opportunity for children with disabilities.
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THE PRINCIPLE OF REDRESS Undeserved inequalities call for redress; and since inequalities of birth and natural endowment are undeserved, these inequalities are to be somehow compensated for. —John Rawls
■
A History of Neglect4
U.S. special education programs originated during the early nineteenth century when isolated advocates of children with disabilities established educational programs for specific handicaps or pressured state legislatures to pass legislation to achieve this purpose. The earliest known school for students with disabilities was established in Hartford, Connecticut, in 1817. Thomas Hopkins Gallaudet founded the American Asylum for the Education of the Deaf and Dumb (now the American School for the Deaf) two years after returning from France, where he was newly trained in the French method of manual communication for the deaf. Gallaudet brought with him a deaf teacher, Laurent Clerc, and together the two men traveled to various American cities, soliciting money from private sources to establish their school.5 The Connecticut legislature appropriated $5,000 for the school in 1816, and by April 15, 1817, the school opened its doors to seven students. In 1819, the school’s future was ensured when the federal government turned over 23,000 acres of land to the school, which the school in turn sold, accruing more than $300,000. During the same year, other states began providing the tuition money necessary to send deaf children to the American School.6 A second school, the New York Institution for the Education of the Deaf and Dumb, was opened in New York in 1818. This school was funded by private donations, but in 1821, the State of New York appropriated funds for its support. The New York school was the first day school for deaf students, but it soon evolved into a residential school program. Pennsylvania was the site of the third school founded for deaf students in this country. Initially
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established in 1820, also as a private school, the state began supporting it in 1821 with funds to provide an education for 50 students. From 1823 to 1844, three new state schools were built for deaf students in Kentucky, Ohio, and Virginia. From 1844 to 1860, 17 new schools for deaf students were established, and in 1864, the National Deaf Mute College was founded in Washington, D.C. The name later was changed to Gallaudet College in honor of the man who first began deaf education in the United States. The need for educational services for other handicaps was not ignored. In 1830, due to the tireless efforts of Horace Mann, the Massachusetts state legislature passed into law a Resolve for Erecting a Lunatic Hospital,7 and the first state hospital for the mentally ill was founded in the city of Worcester, Massachusetts. Mann, of course, was best known for his labors in establishing free compulsory public education for all children. Elected to the Massachusetts state legislature in 1827 by the town of Dedham, Massachusetts, Mann sought legislative support in improving the deplorable living conditions of the insane.8 Forming a committee to study the plight of the insane, Mann toured poorhouses and jails throughout Massachusetts, gathering evidence to encourage legislative action. In 1830, the Massachusetts house and senate passed Mann’s bill. In 1832, New York established a school for blind students, and by 1852, New York, Pennsylvania, and Massachusetts all had appropriated money for programs for mentally disabled children.9 In 1869, day programs for deaf students were started in Boston, and in 1896, programs for mentally disabled students were started in Providence, Rhode Island. Public school classes for blind students and those with other disabilities were begun in Chicago in 1900. Consequently, by the early twentieth century, children with disabilities had gained entry into the public schools in several states. Students with severe disabilities had a difficult time conforming to the structure and expectations of public school systems. Schools were ill-equipped to handle students who exhibited aberrant characteristics. In 1893, a Massachusetts court ruled that student behavior resulting from “imbecility” was grounds for expulsion, thereby barring many mentally
disabled students from public schools. 10 In a later decision,11 a Wisconsin court ruled that a student with a disability, although academically capable, could be excluded from regular public school classes because his disability had “a depressing and nauseating effect on the teachers and school children.”12 This ruling prevented children suffering from cerebral palsy or poliomyelitis from attending regular public school day classes. Because special classes for these students with severe disabilities had not yet been created in many cities, parents of such children had to resort to residential schools or private tutors, or they had to forgo formal education completely.
THE TURNING POINT Despite these earlier judicial setbacks, social conditions of the twentieth century impacted favorably upon the growth of educational services for students with disabilities. The return home of World War I veterans, who were disabled, focused national attention upon the need for educational programs for persons with disabilities. In 1918, the Soldiers’ Rehabilitation Act was passed by Congress, followed in 1920 by the Smith-Bankhead Act. 13 Both pieces of legislation offered vocational rehabilitation services in the form of job training and counseling. By 1944, these Acts were amended to include services for mentally ill and mentally disabled individuals, as well as to provide additional funds for research and training programs.14 Another condition significantly affecting the special-needs children’s quest for equal educational opportunity was the court-ordered desegregation of the public schools.15 Although specifically referring to the rights of black children, the legal mandate of Brown v. Board of Education set a precedent for the extension of educational access to all children, including those with disabilities.16 A significant turning point for the specialneeds children’s rights occurred in 1971, when a federal district court ruled that retarded children in Pennsylvania are entitled to a free, public education. 17 The ruling stipulated that whenever possible, mentally disabled children must be educated in regular classrooms rather than being segregated from the normal school population.
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A History of Neglect
The court said that a mentally disabled child should receive a free, public program of education and training appropriate to the child’s capacity, within the context of a presumption that, among the alternative programs of education and training required by statute to be available, placement in a regular public school class is preferable to placement in a special public school class [i.e., a class for children with disabilities] and placement in a special public school class is preferable to placement in any other type of program of education and training. . . .18
Procedural due process and periodic reevaluations of mentally disabled children were also part of the court’s consent agreement.
THE MILLS CASE In 1972, Mills v. Board of Education of District of Columbia19 expanded the Pennsylvania Ass’n of Retarded Children (PARC) decision to include all children with disabilities. Emphasizing the need for appropriate educational services in the District of Columbia, the court pointed out that the plaintiffs estimated that there are “22,000 mentally disabled, emotionally disturbed, blind, deaf, and speech or learning disabled children, and perhaps as many as 18,000 of these children are not being furnished with programs of specialized education.”20 In granting summary judgment in favor of the plaintiffs, the court adopted a comprehensive plan that had been formulated by the District of Columbia Board of Education. Included in the plan were provisions for (1) a free, appropriate education; (2) an individualized education program (IEP); and (3) due process procedures. The groundwork for future federal legislation assuring the rights of education for children with disabilities had been laid. In PARC,21 plaintiff children with mental disabilities sued the State of Pennsylvania, claiming they had been denied a public education. Their specific constitutional allegations were: (1) their due process rights were denied because they had been excluded from public education or their education programs had been changed without notice or a hearing; (2) their equal protection rights were violated because there was no rational basis for assuming that children with mental disabilities were uneducable and untrainable; and (3) their due process rights were further violated because the education that was provided
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by state law to all children was arbitrarily and capriciously denied them. The parties in PARC agreed to an interim stipulation providing that: [N]o child who is mentally retarded or thought to be mentally retarded can be assigned initially (or reassigned) to either a regular or special educational status, or excluded from a public education without a prior recorded hearing before a special hearing officer. At that hearing, parents have the right to representation by counsel, to examine their child’s records, to compel the attendance of school officials who may have relevant evidence to offer, to crossexamine witnesses testifying on behalf of school officials and to introduce evidence of their own.22
Later, the parties agreed to a consent decree submitted to the court, which stated, “it is the Commonwealth’s obligation to place each mentally retarded child in a free, public program of education and training appropriate to the child’s capacity.”23 This language included the essentials that were later to be followed by Congress in the 1975 statute requiring a free appropriate public education (FAPE) for all children with disabilities.24
Procedural Due Process Is Required to Reassign Children with Disabilities
Mills v. Board of Education of District of Columbia United States District Court, District of Columbia, 1972. 348 F. Supp. 866.
WADDY, District Judge. This is a civil action brought on behalf of seven children of school age by their next friends in which they seek a declaration of rights and to enjoin the defendants from excluding them from the District of Columbia Public Schools and/or denying them publicly supported education and to compel the defendants to provide them with immediate and adequate education and educational facilities in the public schools or alternative
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placement at public expense. . . . They allege that although they can profit from an education either in regular classrooms with supportive services or in special classes adapted to their needs, they have been labeled as behavioral problems, mentally retarded, emotionally disturbed or hyperactive, and denied admission to the public schools or excluded therefrom after admission, with no provision for alternative educational placement or periodic review. . . . The genesis of this case is found (1) in the failure of the District of Columbia to provide publicly supported education and training to plaintiffs and other “exceptional” children, members of their class, and (2) the excluding, suspending, expelling, reassigning and transferring of “exceptional” children from regular public school classes without affording them due process of law. The problem of providing special education for “exceptional” children (mentally retarded, emotionally disturbed, physically handicapped, hyperactive and other children with behavioral problems) is one of major proportions in the District of Columbia. The precise number of such children cannot be stated because the District has continuously failed to comply with Section 31-208 of the District of Columbia Code which requires a census of all children aged three to eighteen in the District to be taken. Plaintiffs estimate that there are “22,000 retarded, emotionally disturbed, blind, deaf, and speech or learning disabled children, and perhaps as many as 18,000 of these children are not being furnished with programs of specialized education.” . . . Each of the minor plaintiffs in this case qualifies as an “exceptional” child. . . . Although all of the named minor plaintiffs are identified as Negroes the class they represent is not limited by their race. They sue on behalf of and represent all other District of Columbia residents of school age who are eligible for a free public education and who have been, or may be, excluded from such education or otherwise deprived by defendants of access to publicly supported education. . . . Plaintiffs’ entitlement to relief in this case is clear. The applicable statutes and regulations and the Constitution of the United States require it.
Section 31-201 of the District of Columbia Code requires that: Every parent, guardian, or other person residing [permanently or temporarily] in the District of Columbia who has custody or control of a child between the ages of seven and sixteen years shall cause said child to be regularly instructed in a public school or in a private or parochial school or instructed privately during the period of each year in which the public schools of the District of Columbia are in session. . . .
Under Section 31-203, a child may be “excused” from attendance only when upon examination ordered by . . . [the Board of Education of the District of Columbia, the child] is found to be unable mentally or physically to profit from attendance at school: Provided, however, that if such examination shows that such child may benefit from specialized instruction adapted to his needs, he shall attend upon such instruction.
Failure of a parent to comply with Section 31-201 constitutes a criminal offense. D.C. Code 31-207. The Court need not belabor the fact that requiring parents to see that their children attend school under pain of criminal penalties presupposes that an educational opportunity will be made available to the children. The Board of Education is required to make such opportunity available. . . . A fortiori, the defendants’ conduct here, denying plaintiffs and their class not just an equal publicly supported education but all publicly supported education while providing such education to other children, is violative of the Due Process Clause. Not only are plaintiffs and their class denied the publicly supported education to which they are entitled, many are suspended or expelled from regular schooling or specialized instruction or reassigned without any prior hearing and are given no periodic review thereafter. Due process of law requires a hearing prior to exclusion, termination of classification into a special program. . . . The defendants are required by the Constitution of the United States, the District of Columbia Code, and their own regulations to provide a publicly supported education for these “exceptional” children. Their failure to fulfill this clear duty to include and retain these children in the public school system, or otherwise provide them with
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A History of Neglect
publicly supported education, and their failure to afford them due process hearing and periodic review, cannot be excused by the claim that there are insufficient funds. In Goldberg v. Kelly, . . . the Supreme Court, in a case that involved the right of a welfare recipient to a hearing before termination of his benefits, held that constitutional rights must be afforded citizens despite the greater expense involved. The Court stated . . . “the State’s interest that this [welfare recipient’s] payments not be erroneously terminated clearly outweighs the State’s competing concern to prevent any increase in its fiscal and administrative burdens.” Similarly the District of Columbia’s interest in educating the excluded children clearly must outweigh its interest in preserving its financial resources. If sufficient funds are not available to finance all of the services and programs that are needed and desirable in the system then the available funds must be expended equitably in such a manner that no child is entirely excluded from a publicly supported education consistent with his needs and ability to benefit therefrom. The inadequacies of the District of Columbia Public School System whether occasioned by insufficient funding or administrative inefficiency, certainly cannot be permitted to bear more heavily on the “exceptional” or handicapped child than on the normal child. . . . Inasmuch as the Board of Education has presented for adoption by the Court a proposed “Order and Decree” embodying its present plans for the identification of “exceptional” children and providing for their publicly supported education, including a time table, and further requiring the Board to formulate and file with the Court a more comprehensive plan, the Court will not now appoint a special master as was requested by plaintiffs. . . . . . . [I]t is hereby ordered, adjudged and decreed that summary judgment in favor of plaintiffs and against defendants be, and hereby is, granted, and judgment is entered in this action as follows:
2.
3.
4.
5.
6. 1. That no child eligible for a publicly supported education in the District of Columbia public schools shall be excluded from a regular public school assignment by a rule, policy, or practice of the Board of Education of the District of Columbia or its agents
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unless such child is provided (a) adequate alternative educational services suited to the child’s needs, which may include special education or tuition grants, and (b) a constitutionally adequate prior hearing and periodic review of the child’s status, progress and the adequacy of any educational alternative. The defendants, their officers, agents, servants, employees, and attorneys and all those in active concert or participation with them are hereby enjoined from maintaining, enforcing or otherwise continuing in effect any and all rules, policies and practices which exclude plaintiffs and the members of the class they represent from a regular public school assignment without providing them at public expense (a) adequate and immediate alternative education or tuition grants, consistent with their needs, and (b) a constitutionally adequate prior hearing and periodic review of their status, progress and the adequacy of any educational alternatives; and it is further ORDERED that: The District of Columbia shall provide to each child of school age a free and suitable publicly supported education regardless of the degree of the child’s mental, physical or emotional disability or impairment. Furthermore, defendants shall not exclude any child resident in the District of Columbia from such publicly supported education on the basis of a claim of insufficient resources. Defendants shall not suspend a child from the public schools for disciplinary reasons for any period in excess of two days without affording him a hearing pursuant to the provisions of Paragraph 9.c.(2)(5), below, and without providing for his education during the period of any such suspension. Defendants shall provide each identified member of plaintiff class with a publicly supported education suited to his needs within thirty (30) days of the entry of this order. . . . Defendants shall utilize public or private agencies to evaluate the educational needs of all identified “exceptional” children and, within twenty (20) days of the entry of this order, shall file with the Clerk of this Court their proposal for each individual placement in a suitable educational program, including
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the provision of compensatory educational services where required. . . . 7. Within forty-five (45) days of the entry of this order, defendants shall file with the Clerk of the Court, with copy to plaintiffs’ counsel, a comprehensive plan which provides for the identification, notification, assessment, and placement of class members. Such plan shall state the nature and extent of efforts which defendants have undertaken or propose to undertake to a. describe the curriculum, educational objectives, teacher qualifications, and ancillary services for the publicly supported educational programs to be provided to class members; and, b. formulate general plans of compensatory education suitable to class members in order to overcome the present effects of prior educational deprivations. . . . 8. Within forty-five (45) days of the entry of this order, defendants shall file with this Court a report showing the expunction from or correction of all official records of any plaintiff with regard to past expulsions, suspensions, or exclusions effected in violation of the procedural rights. . . . 9. Hearing Procedures. a. Each member of the plaintiff class is to be provided with a publicly supported educational program suited to his needs, within the context of a presumption that among the alternative programs of education, placement in a regular public school class with appropriate ancillary services is preferable to placement in a special school class. b. Before placing a member of the class in such a program, defendants shall notify his parent or guardian of the proposed educational placement, the reasons therefore, and the right to a hearing before a Hearing Officer if there is an objection to the placement proposed. . . . c. Whenever defendants take action regarding a child’s placement, denial of placement, or transfer . . . the following procedures shall be followed: (1) Notice required hereinbefore shall be given in writing by registered mail to the parent or guardian of the child.
(2) Such notice shall: (a) describe the proposed action in detail; (b) clearly state the specific and complete reasons for the proposed action, including the specification of any tests or reports upon which such action is proposed; (c) describe any alternative educational opportunities available on a permanent or temporary basis; (d) inform the parent or guardian of the right to object to the proposed action at a hearing before the Hearing Officer; (e) inform the parent or guardian that the child is eligible to receive, at no charge, the services of a federally or locally funded diagnostic center for an independent medical, psychological and educational evaluation and shall specify the name, address and telephone number of an appropriate local diagnostic center; (f) inform the parent or guardian of the right to be represented at the hearing by legal counsel; to examine the child’s school records before the hearing, including any tests or reports upon which the proposed action may be based; to present evidence, including expert medical, psychological and educational testimony; and to confront and cross-examine any school official, employee, or agent of the school district or public department who may have evidence upon which the proposed action was based. (3) The hearing shall be at a time and place reasonably convenient to such parent or guardian. . . . (4) The hearing shall be a closed hearing unless the parent or guardian requests an open hearing. (5) The child shall have the right to a representative of his own choosing, including legal counsel.
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Education for All Handicapped Children Act (EAHCA)
(6) The decision of the Hearing Officer shall be based solely upon the evidence presented at the hearing. (7) Defendants shall bear the burden of proof as to all facts and as to the appropriateness of any placement, denial of placement or transfer. (8) A tape recording or other record of the hearing shall be made and transcribed and, upon request, made available to the parent or guardian or his representative. (9) At a reasonable time prior to the hearing, the parent or guardian, or his counsel, shall be given access to all public school system and other public office records pertaining to the child, including any tests or reports upon which the proposed action may be based. (10) The independent Hearing Officer shall be an employee of the District of Columbia, but shall not be an officer, employee or agent of the Public School System. . . . (11) The parent or guardian, or his representative, shall have the right to present evidence and testimony, including expert medical, psychological or educational testimony. (12) Within thirty (30) days after the hearing, the Hearing Officer shall render a decision in writing. . . .
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Education for All Handicapped Children Act (EAHCA)
The reasoned treatment of the disability question by the courts in the PARC and Mills cases initiated an enhanced level of public consciousness of the plight of special-needs children. A near-dormant humanitarian impulse of the public was awakened by these legal actions and presently spilled over to the legislative bodies of the country. An important, and indeed momentous, occasion was the concerted efforts by the U.S. Congress to redress the problem. Immediately following the PARC and Mills decisions, federal legislation was introduced in both chambers of Congress seeking to eliminate discrimination against individuals with
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disabilities in both the world of work and the public educational system of the country. This legislative action eventually culminated in the passage of two laws—the Rehabilitation Act of 197325 (discussed later in this chapter) and the EAHCA in 1975. Incorporating many provisions of earlier litigation and legislation, the EAHCA (Public Law 94-142) ensured the right of all children with disabilities to a public school education. The need for this law was expressed by Congress: 1. [T]here are more than eight million handicapped children in the United States today; 2. the special educational needs of such children are not being fully met; 3. more than half of the handicapped children in the United States do not receive appropriate educational services which would enable them to have full equality of opportunity; 4. one million of the handicapped children in the United States are excluded entirely from the public school system and will not go through the educational process with their peers; 5. t h e re a re m a n y h a n d i c a p p e d c h i l d re n throughout the United States participating in regular school programs whose handicaps prevent them from having a successful educational experience because their handicaps are undetected.26
To ensure children with disabilities basic educational rights, Public Law 94-142 incorporated certain tenets: (1) a free, appropriate public education; (2) an individualized education program; (3) special education services; (4) related services; (5) due process procedures; and (6) the least-restrictive environment (LRE) in which to learn.27 Congress authorized immediate implementation of all sections of the EAHCA on a priority basis, first by addressing the needs of children with disabilities who were currently receiving no educational services at all and second by upgrading the services to the children with the most severe disabilities whose needs were inadequately served. The Act further required that all children with disabilities between the ages of 3 and 18 receive appropriate educational services by September 1, 1978; by September 1, 1980, all children with disabilities from ages 3 to age 21 were to receive appropriate educational services.28
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AMENDMENTS TO THE EAHCA Since its enactment in 1975, the EAHCA has been amended numerous times;29 each time, Congress has reaffirmed the original intent. A 1978 amendment stressed the importance of applied research and related activities to improve the educational opportunities of special-needs children, and it reiterated the states’ responsibility to refine and improve existing programs. In 1983, the law was amended to clarify the term “special education” as services designated “to meet the unique ‘educational’ needs of the handicapped child” and to specifically expand services for deaf and blind children. The committee report supporting the legislation emphasized the need to improve education for those with severe disabilities.30 This legislation further reinforced Section 624, which sought to augment research, innovation, training, and dissemination activities in connection with centers and services for those with disabilities.31 The amendments in 1986 extended the age groups covered, mandating that all preschool children with disabilities aged three to five years be entitled to public education and establishing a new federal education program for babies with disabilities from birth through age two. The Senate committee report supporting the law stated that the provision was now made “for universal access to services for all handicapped children beginning at birth.”32 The 1986 amendments, however, focused in particular on the needs of deaf and blind children and those with multiple disabilities, extending provisions for specialized, intensive professional and allied services, methods, and aids that are found to be most effective.33 In addition, the 1986 Act, called the Handicapped Children’s Protection Act (HCPA), enables children with disabilities, parents, or guardians to receive attorney’s fees if they are successful in litigation against state or local agencies.34
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Individuals with Disabilities Education Act (IDEA)
In 1990, the statute was renamed the Individuals with Disabilities Education Act (IDEA).35 Little of substance was added in the 1990 legislation except for expanding the definition of disabilities to include head trauma and autism and adding
a provision to prevent states from using the Eleventh Amendment as a shield against liability in actions by children with disabilities. Also, the 1990 law required the development of services for special-needs students to ease their transition into the adult world. Provisions for such transitional services must be included in the IEPs of all students 16 years of age and older.
THE 1997 AMENDMENTS TO THE IDEA Amendments to the IDEA in 1997 affected eligibility, evaluation, programming, private school placements, discipline, funding, attorney’s fees, dispute resolution, and procedural safeguards.36 The amendments did not change the general definition of a child with a disability, but they did relax the requirement of the previous law in specifying the particular disability.37 Under the earlier law, the school district was required to identify the particular disability for children before five years of age. Because of the difficulty in pinpointing the specific disability in young children, the amendments give school districts discretion to extend the identification period to include ages five through nine. This new flexibility permits school districts to have additional time in evaluating children for a particular disability. The effect of this change is to allow the child’s disability at this age to be generalized to that of a “child with a disability,” who is “experiencing developmental delays” in any of the areas of physical, cognitive, communicative, social or emotional, or adaptive development.38 The amendments further provide that “nothing in this Act requires that children be classified by their disability” so long as a student meets the definition of a child with a disability.39 Thus, the amended law attempted to respond to a running disagreement among experts and advocates, some of whom believe that decategorization would reduce stereotyping of placement decisions and possible stigmatizing of students.40
CHILD WITH A DISABILITY A “child with a disability” is defined by the Individuals with Disabilities Education Act (IDEA) as a child with specified impairments and who, by reason thereof, needs special education and related services. Thus, the fact that a child
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Individuals with Disabilities Education Act (IDEA)
may have a qualifying disability does not necessarily make him or her a “child with a disability” eligible for special education services under the IDEA since the child must also need special education and related services. Impairments which may render a child disabled are: ■ mental debilitation ■ hearing impairments, including deafness ■ speech or language impairments ■ visual impairments, including blindness ■ serious emotional disturbance ■ orthopedic impairments ■ autism ■ traumatic brain injury ■ health impairments ■ specific learning disabilities Discipline of children with disabilities has been the source of considerable litigation. An important aspect of the 1997 Amendments was a clarification of the requirements for discipline of children with disabilities.41 The following is a summary of the relevant parts of the legislation. (1) A school district may order a change in placement of a child with a disability to an appropriate alternative setting or may suspend a child for not more than 10 days, applying suspension to the same extent as to children without disabilities. (2) A school district can discipline a child for possession of a weapon or for possession, sale, solicitation, or use of illegal drugs in school by placing the student in an interim alternative educational setting for the same period as a typically developing child—up to 45 days. (3) A school district must convene a hearing to consider the child’s behavior problem not more than 10 days after taking disciplinary action. (4) A hearing officer is to determine whether the school district has demonstrated substantial evidence that maintaining the current placement of the child with a disability is likely to result in harm to the child or to others. If so, the hearing officer may order an interim alternative educational setting for the child for not more than 45 days. (5) The interim alternative educational setting must be designed to: (a) enable the child to continue to participate in the general curriculum; (b) allow the child to continue to receive services and modifications that enable the child to meet the goals set forth in the individualized education
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plan; and (c) include services that will help address the child’s behavioral problem. (6) Where disciplinary action is contemplated involving a change of placement for more than 10 days, a manifestation determination review is required. The review requires notice and attendant procedural safeguards and is to be conducted by the individualized education program team.42 (7) If the review determines that the behavior problem was not a manifestation of the child’s disability, the relevant and appropriate discipline may be applied to the child with a disability that is applied to children without disabilities. During the period in which the discipline is carried out, the child with a disability must be provided with free appropriate public education (FAPE). If, on the other hand, it is determined by the review team that the child’s behavior was a manifestation of his or her disability, the child cannot be disciplined by change of placement without reinstituting all the IDEA procedural requirements. (8) Parents who do not agree with the conclusion that the behavior was not a manifestation of the child’s disability may request a hearing before the local or state education agencies.43 As amended in 1997, the law clarifies the right to a free appropriate public education (FAPE) by extending coverage to all resident children with disabilities between the ages of 3 and 21, inclusive, to the age of 22. An exception is permitted for children who are convicted of felonies as adults. Depending on a state law that may provide otherwise, FAPE does not apply to students between the ages of 18 through 21 who were not identified as disabled and did not have an individualized education program (IEP) “prior to their incarceration in an adult correction facility.”44 If, though, a student had been identified as having a disability or had been provided an IEP in his or her last educational placement, then the student is still entitled to IDEA benefits even if he or she had dropped out of school.45
THE 2004 AMENDMENTS TO THE IDEA Amendments to IDEA in 2004 rendered another name change, this time inserting “Improvement,” making the exact appellation Individuals with Disabilities Education Improvement Act (IDEIA), signed into law by George W. Bush on December 3, 2004.46 Regulations proposed to implement the Act were
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advanced on June 21, 2005. 47 Overall the new statute refines the 1997 version, but leaves the body of the law in place. The new law coordinates more closely with No Child Left Behind Act (NCLB), allocates funds to stimulate school districts to provide special education services for eligible children in clerical and other private schools, changes eligibility definitions for children with learning disabilities, modifies dispute resolution procedures, and prescribes more refined, and possibly harsher, disciplinary rules for children with disabilities, but yet forecloses complete exclusion from public school.48 In coordinating the IDEIA with NCLB, the new Act seeks to encompass and define the requirements for a “highly qualified teacher.” According to the U.S. Court of Appeals, Seventh Circuit, IDEA does not supplant provisions of the No Child Left Behind Act.49 The basic requirement under the new Act is that a highly qualified public elementary and secondary school special education teacher holds a full state certification or has passed a special education licensing test, holds a license, holds at least a bachelor’s degree, and has not had any licensure requirements waived.50 Agency regulations codified pursuant to the Act provide that teachers in private schools are exempt from the highly qualified criteria. Weber notes that the rationale for such exemption is probably that “parents who seek private school placement for their children are unlikely to want to impose any legal restrictions that may diminish the number of placements that are available.”51 This was one of the issues raised in Florence County School District v. Carter,52 where the U.S. Supreme Court ruled that a public school district must reimburse parents who unilaterally placed their child in a private school, even though the private school did not have some state-certified teachers. A second essential aspect of alignment with NCLB is a requirement for accountability and assessment. Under the new law, special education students must be tested to determine adequate yearly progress (AYP), as are the general education students. Because of the uncertain effects of the requirement, provision is made for alternate assessments, which would address the problem of assessment of learning of special education students who have severe cognitive
disabilities that would prevent conventional assessment measures from being effective. Regulations would permit proficiency to be determined through alternate assessment methods, allowing greater flexibility in documenting progress toward grade-level achievement.53 Another change in the Act has to do with more flexibility in the use of federal special education dollars. The new provisions permit up to 15 percent of the funds to be used for intervening services designed to provide programs for children who have a disability but have not been formally placed in a special education program. 54 This new provision emanates from current thinking that suggests the present system is not proactive and does not come into play until the student fails. Thus, a portion of the federal IDEIA funding can be used for regular school programs for children who are in jeopardy of falling further behind. However, the new Act requires that at least 85 percent of federal dollars remain in special education programs and not be siphoned off into regular school programs.55 The 2004 amendments clarify the congressional intent to fund special education programs in private schools. The law requires that the local public school district institute a child find procedure, in consultation with private school representatives, to determine the number of children with disabilities who are currently attending private schools. The public school district must provide services for those children and allocate a pro-rata share of the federal money for such services.56 These services are to be provided and paid for from federal funds whether or not the actual educational process takes place in private, religious, or public school facilities. The constitutional justification for public funding of special education services is found in Zobrest v. Catalina Foothills School District,57 in which case the U.S. Supreme Court held that providing public funding for a sign-language interpreter for a student attending a Catholic high school did not violate the Establishment Clause of the First Amendment. (See Chapter 5 of this book.) One of the most difficult issues in administering the IDEA has been devising a reliable method of identifying children with learning disabilities. The new IDEIA regulations require abandonment of the conventional method of comparing discrepancies between IQ tests and
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Individuals with Disabilities Education Act (IDEA)
achievement58; rather the new statute provides for the use of “a process that determines if the child responds to scientific, research-based intervention as a part of the evaluation.”59 The recommended approach as reflected in the Notice of Proposed Rulemaking for the Act specifies that the U.S. Department of Education “strongly recommends” a process of systematic assessment of the student’s reaction to high-quality regular or general education instruction, but makes provision for flexibility in use of various methods to determine the “strengths and weaknesses in achievement, or simply rely on an absolute level of low achievement.”60 The law incorporates several minor modifications in due process hearing procedures, most important of which are provisions governing attorneys’ fees, settlement procedures, qualifications for hearing officers, and provisions for enforcement of hearing decisions.61 Concerning attorneys’ fees, the law seeks to control the incentive to file actions and reduce the great number of special education cases that are presently overwhelming the courts. To stem the flood, the Act provides that a court may permit school districts or states that prevail in due process litigation to receive attorneys’ fees from parents or their attorneys for both court activities and due process hearings. A court may assess such fees against the parent and attorney who file a complaint “that is frivolous, unreasonable, or without foundation,” or who continue to pursue the action after it is obvious that the litigation is unfounded and clearly becomes “frivolous, unreasonable, or without foundation.”62 Fees may also be awarded against the parents or their attorneys who file complaints to harass, delay proceedings, or needlessly increase litigation costs.63 IDEIA expands mediation of claims covering all matters. Further, the law initiates a new procedure termed a resolution session, which may be described as an unmediated settlement conference conducted between the parent and a person assigned to such matters and has decisionmaking authority for the school district.64 The idea of the “resolution session” is to encourage parents and school personnel to work together in a nonlitigious setting to resolve differences. The school district can only have an attorney present if the parent brings one to the session.65 (See Schaffer v. Weast, 2005, which follows in this chapter.)
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The law also adds a provision to the “manifestation” criteria that provides an exception for infliction of serious bodily injury. The IDEA, 1997, provided for the removal of a student from current educational placement for up to 45 days for violation of school regulations if the misconduct was a manifestation of the child’s disability, 66 (1) if the offending student brought a weapon to school, school premises, or a school function, and (2) if the student knowingly possessed or used illegal drugs or sold or solicited the sale of such at school, on school premises, or at a school function. IDEIA added a third condition under which a student could be removed, to wit: “if the student inflicts serious bodily injury on another person while at school.”67 As to whether a student’s misconduct at school was a manifestation of his or her disability, the new law provides new definition as to the membership of the manifestation team and to the conduct of the hearing and the standard for manifestation itself. The team must be made up of representation from the school district, the parent, and relevant members of the individualized education program team, and they must determine: “(I) if the conduct in question was caused by, or had a direct and substantial relationship to the child’s disability; or (II) if the conduct in question was the direct result of the local educational agency’s failure to implement the IEP.” In cases where either condition applies, the misconduct of the child must be found by the team to be a manifestation of the disability.68 The statute also modifies the earlier law with regard to maintenance of current placement pending the disciplinary appeal decision. The provision allowed a student to be removed from current placement and maintained in an interim alternative educational setting until the hearing decision was made, but such interim setting could not be for more than 45 days. The law changes this to provide that a student is to remain in the alternative educational setting until a decision is made in the hearing or the period of removal for the disciplinary offense terminates, whichever occurs first.69 This change in the law may have little effect because interim placements may be extended by the parties and it is common for school districts to request from the courts a judicially sanctioned extension of time for the interim placement. The Supreme Court in
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Honig v. Doe pointed out that the courts have the power to grant an injunction, requested by the school district, to keep a student out of current placement for a period that a court considers appropriate and necessary.70 These refinements of the law merely build on the base of provisions that string from 1975 to present and have greatly expanded educational opportunities for children with disabilities. However, the new law does not settle the ongoing controversy regarding appropriate placement or the least-restrictive environment and its limitations, nor does the law resolve the educational dilemma presented by the rapidly rising incidence of autism among children of this generation. The courts will continue to be called upon to exercise their discretion in interpreting the legal requirements for these issues as well as to provide ongoing interpretation of the wording of IDEIA, 2004.
INTERPRETATION OF THE IDEA The federal legislation beginning with Public Law 94-142 [EAHCA, formerly part of the Education of the Handicapped Act (EHA)] has resulted in many court judicial decisions that interpret the statute’s intent. In Chapter 1, we observed that a primary function of the courts is to interpret statutes to determine their true intent. This has been the primary function of the courts in dealing with special-needs children’s issues since the enactment of the federal laws. Since 1975, the pervasive nature of the EAHCA (and now the IDEA) tends to obviate the need for constitutional inquiry. The children with disabilities cases are devoted almost entirely to judicial responses to conflicts between school districts and parents of children with disabilities seeking definition of the provisions of the federal children with disabilities legislation. These cases can be classified in several different ways, but they primarily fall into groups wherein the courts define the meanings of the following statutory provisions: ■ ■ ■ ■ ■ ■ ■
Free appropriate public education Extended school year Regression-recoupment dilemma Procedural safeguards Individualized education programs Attention deficit hyperactivity disorder Least-restrictive environment
■ ■ ■ ■ ■ ■ ■
Placement in private schools Related services Discipline and the “stay-put” provision The “stay-put” provision Compensatory education Attorney’s and expert’s fees Liability for reimbursement of parents
Judicial opinions interpreting these portions of the disability legislation are discussed in the following sections.
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Free Appropriate Public Education
To qualify for federal funds under the IDEA, a state must adopt a policy “that assures all handicapped children the right to a free appropriate public education (FAPE).” The Act defines free, appropriate education as special education and related services that (a) have been provided at public expense, under public supervision and direction, and without charge; (b) meet the standards of the state education agency; (c) include an appropriate preschool, elementary, or secondary education in the state involved; and (d) are provided in conformity with the individualized education program (IEP) required under Section 1414 (a) (5) of this title.71 The Act bestows upon children with disabilities the substantive right to a FAPE and provides the procedural safeguards to effectuate that end.72 Yet, beyond this declaration of substantive right, Congress does not define specifically what constitutes an “appropriate” education, opting instead to delegate latitude to public schools to make this determination in accordance with the procedural process as enunciated in the law. The Supreme Court in Board of Education of Hendrick Hudson Central School District v. Rowley noted the wisdom in Congress’s decision not to give specific statutory definition to “appropriate education,” observing that such statutory specification of educational programs would likely result in an “entirely unworkable standard requiring impossible measures and comparisons.”73 Clearly seeing the virtue in its own reasoning, Congress did not tamper with the flexible and broad definition of FAPE in its 1997 and 2004 amendments.74 The end result, therefore, is that
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Free Appropriate Public Education
Congress seeks to expand education of children with disabilities by asserting an unmistakable overarching substantive right to an appropriate education guaranteed by the IDEA’s structured procedural requirements, but leaves the educational decisions to the states and the local school districts. A free, appropriate public education must be specifically designed to meet the unique needs of the child. The federal program is designed for the child “to benefit.” The Act, as currently interpreted by the Supreme Court, requires no substantive measures regarding the level of education; therefore, the state does not have to maximize the potential of the child, only provide a program that benefits the child. In Rowley, the Supreme Court stated, “We therefore conclude that the ‘basic floor of opportunity’ provided by the Act consists of access to specialized instruction and related services which are individually designed to provide education benefit to the handicapped child.”75 The educational methods to be used are the responsibility of the state, and the courts may review them to determine compliance with the Act. The legal concerns are primarily twofold: “First, has the state complied with procedures set forth in the Act? And, second, is the individualized educational program developed pursuant to the Act’s procedures reasonably calculated to enable the child to receive educational benefits?”76 What constitutes a “benefit,” though, is not easily discerned or readily agreed upon. In a vigorous dissent in Rowley, Justice White took issue with the use of the term benefit, pointing out that in the case of a deaf student, instruction by “a teacher with a loud voice” could be viewed as an educational placement providing some benefit.77 “Benefit” itself, and whether it is required at all, was treated at length in Timothy W. v. Rochester School District.78 Here the U.S. Court of Appeals for the First Circuit concluded that the IDEA did not require that a child prove that he or she could benefit from the educational services before participation. The court said that the Act was intended for all children with disabilities and that those children with the most severe disabilities were to be given priority, not to be excluded. For a child to be compelled to show potential benefit as a condition precedent was neither intended
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nor contemplated by Congress in enacting the initial law. Yet, as the Timothy W. case indicates, the extent of “benefit” to which a child is entitled remains an issue for the courts. In Rowley, the Supreme Court used the term “meaningful benefit” and further observed that “it would do no good for Congress to spend millions of dollars in providing access to public education only to have the . . . child receive no benefit from that education.”79 Most federal courts80 have strictly applied Rowley and have only infrequently held that an IEP is insufficient for lack of “benefit” or “meaningful benefit.” The prevailing view is indicated by the Eighth Circuit in Fort Zumwalt School District v. Clynes that upholds the school district’s IEP as likely to extend to the child an educational benefit.81 The evidence of the benefit received in Clynes was passing grades, improvement in reading skills, and promotion to the next grade level. On the other hand, some federal courts have argued that Rowley requires a higher standard of benefit, and quoting the Supreme Court, these courts have asserted that “Congress did not intend that a school system should discharge its duty . . . by providing a program that produces some minimal academic advancement, no matter how trivial.”82 This school of thought maintains that the IDEA is intended to provide progress beyond the “trivial.” The “meaningful benefit” of Rowley, it is argued, was actually intended to be an uplifted basic floor of opportunity or an elevated threshold of educational benefit.83 In this vein, the Sixth Circuit in Doe v. Smith pointed out that the “benefit must be more than de minimis,”84 and the Tenth Circuit has held that Rowley requires more than de minimis benefit in the case of a child with a severe disability.85 Similarly, the Fifth Circuit has observed that the educational benefit cannot be “mere modicum or de minimis.”86 These views of the legislative intent of the IDEA and the Rowley decision are fertile ground for continuing litigation, and presumably the amendments will do little to abate the rising tide of litigation.87
EXTENDED SCHOOL YEAR Whether a special-needs child is entitled to an extended school year depends on the individual child’s IEP, which determines an appropriate
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education for each child. The words meaningful educational benefit have come to be used by the federal courts in determining whether IEPs are appropriate.88 Such is usually employed as a relative measure to determine whether a particular placement is more appropriate than another. 89 The issue of “meaningful educational benefit” is most commonly an issue when choices of extended school year programs are an issue. Extended school year (ESY) services are required for some students because they require year-round educational services; however, a reduction in such services does not necessarily violate IDEA unless it derogates from the child’s overall development goals.90 If, for example, the ESY does not confer a “meaningful benefit” upon the child, then the educational program does not comport with IDEA.91 In Battle v. Pennsylvania, 92 a federal circuit court ruled that a state could be required to provide educational programs beyond the regular school year. The court stated, “At the center of the controversy . . . is the definition of ‘free appropriate public education.’ ”93 The State of Pennsylvania, through administrative policy, set a limit of 180 days of instruction per year for all children, disabled or not. The case was brought by children who were profoundly impaired (PI) or emotionally disturbed (ED), claiming that the administrative policy denied them a free, appropriate education as required by the IDEA. The court found that during the summer break, all children regressed in their learning process. Although all children regressed, children with disabilities regressed more and required longer to recoup skills than did typically developing children. The state claimed that the regression was caused by a multitude of factors, such as teacher incompetency, parental failure, and lack of functionality of skills taught. The court agreed that all of the factors attributed to the regression, but it thought that the program break was a major factor. The court said that no clear legislative guidance was provided, and the issues were convoluted: Whereas in this case, the handicap in question profoundly affects the child’s learning abilities, this comparison reaches a level of difficulty, which, in the absence of legislative guidance, approaches the perimeter of judicial competence.94
The Battle court, though, reasoned that because the federal statute requires special education programs to be individualized to “meet the unique needs” of each child, a fixed term of 180 days is contrary to the federal intent. The court said: Rather than ascertaining the reasonable educational needs of each child in light of reasonable education goals and establishing a reasonable program to attain those goals, the 180-day rule imposes with rigid certainty a program restriction which may be wholly inappropriate to the child’s educational objectives.95
The Fifth Circuit in Crawford v. Pittman96 found that a similar limited school year policy was in violation of the IDEA; this court concluded that Mississippi’s policy of refusing to consider or provide special education of a duration longer than 180 days is inconsistent with its obligations under the Act. Rigid rules like the 180-day limitation violate not only the Act’s procedural command that each child receive individual consideration but also its substantive requirements that each child receive some benefit and that lack of funds not bear more heavily on handicapped than nonhandicapped children.97 The Eighth Circuit, too, ruled that a Missouri policy limiting the education of children with disabilities violated the IDEA; the Eleventh Circuit98 made a similar ruling in invalidating a Georgia policy. After the cases of Battle,99 Yaris,100 Crawford,101 and Georgia Association of Retarded Citizens,102 the issue is no longer in doubt as to whether a special-needs child can legally have available an extended school year as part of a FAPE; the only question is what standards should be used to determine which child receives the extended school year services. Most important to the extended school year issue is whether the case conference committee structuring the IEP considered the need for an extended school year. The need for the IEP to include an extended school year program is to be determined based on whether the benefits a disabled child gains during the regular school year will be “significantly jeopardized” if he or she is not provided with summer school services.103 The aforementioned cases all used as a criterion the fact that a child would regress during the summer break and concluded that if the learning regression is substantial enough to preclude rapid recoupment at the beginning of the next school year, then an extended school program is required.
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Free Appropriate Public Education
REGRESSION–RECOUPMENT DILEMMA The regression–recoupment analysis has been commonly supported by expert testimony, but conflicts are apparent. One court noted: The school district’s employees and consultants were unanimous in that they observed no significant regression, while doctors, therapists, and former teachers testified on behalf of [the student] that a continuous structural program . . . was required to prevent significant regression.104
In Alamo Heights,105 a more multifaceted standard emerged that uses regression–recoupment as a factor but also employs other factors. Here, the standard maintains that if a child will experience severe or substantial regression during the summer months in the absence of a summer program, the handicapped child may be entitled to year round services. The issue is whether the benefits accrued to the child during the regular school year will be significantly jeopardized if he is not provided an educational program during the summer months. This is, of course, a general standard, but it must be applied to the individual by the ARD [Admission, Review and Dismissal] Committee in the same way that juries apply other general legal standards such as negligence and reasonableness.106
In Johnson v. Independent School District No. 4 of Bixby, 107 the court agreed with the Alamo analysis, saying that the use of the regression– recoupment analysis as the only test violated the right of the child to have his or her program individualized. This argument basically assumes that any fixed standard, such as the 180-day rule, must fall because it is static and negates the individualization that the Act requires. The Third Circuit, in Polk v. Central Susquehanna Intermediate Unit 16,108 also rejected the regression argument as the sole factor in determining the child’s need for extended services. Johnson cited Rowley as providing a rationale for using many factors, pointing out that the Supreme Court in Rowley said that “[w]e do not attempt today to establish any one test for determining the adequacy of educational benefits conferred upon all children covered by the Act.”109 The Johnson court further concluded: In addition to degree of regression and the time necessary for recoupment, courts have considered many factors important in their discussions of what
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constitutes an “appropriate” educational program under the Act.110
In yet another case, Cordrey v. Euckert, the Sixth Circuit followed the twofold test from Rowley to determine what constituted an appropriate education: (1) whether the state had complied with all procedures set forth in the Act and (2) whether the IEP was reasonably calculated to enable the child to receive educational benefits.111 In this case, the court found that “hard empirical proof” of regression–recoupment is clearer and simpler, but the regression standard should not be interpreted to require absolutely that a child demonstrate regression in order to prove need for a summer program.112 The court said that “the ESY [extended school year] standard should be open to developments in special education science, but not bound to any particular one.”113 In 2008, the U.S. Court of Appeals, Ninth Circuit, pointed out that the standard to be adhered to in regression–recoupment considerations is not “some education benefit,” but rather a “meaningful educational benefit.”114 Such a distinction may, however, not be highly relevant if the appropriate IEP is carefully followed and regression–recoupment standards are accommodated.115 Thus, according to Rowley, a “free, appropriate” education is defined in rather “general and somewhat imprecise” language, but if procedural guidelines are followed and a specialized program is developed for the child’s needs, then the requirements of the Act are met. The specialized program may or may not include extended school year services. This is a question that must be resolved based on the individual needs of each child.
PROCEDURAL SAFEGUARDS As indicated in the Mills and Rowley 116 cases, proper procedures are a vital aspect in ensuring that appropriate educational services are extended to special-needs children. The necessary due process specifications delineated in Mills were followed and embellished by the EAHCA in 1975. Section 1415 of that Act contains procedures that are mandatory. Most important, the procedures specify that parents must be given notice and an opportunity to participate in the development of their child’s education program. Inclusive is the requirement that parents be
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informed of all methods and procedures by which conflicts and grievances may be appealed and resolved. Implicit therein is the assurance that hearings regarding the child’s placement will be impartial and unbiased. The law, Section 1415, emphasizes this standard of fairness by giving the parent a right to have the hearing conducted by a person who is not an employee of either the school district nor of the state department of education.117 As stated in Rowley, a reviewing court must make sure that procedures are followed by the district. A school district making a placement decision without reference to the IEP violates the requirements of the law to provide a free, appropriate public education.118 On the other hand, if an insignificant procedural error is made but does not result in the child’s loss of educational opportunity,119 the court will decline to “exalt form over substance” by enforcing a technical infraction from the Act’s procedural standards.120 If the results of the hearing are not to the satisfaction of the parent or the school district, then an appeal can be made to the state department of education.121 During the time in which appeals are taken, the child must remain, or “stay put,” in his or her “then current” program.122 As discussed later in this chapter, indefinite suspension during the pendency of appeal violates this section of the law.123 An appeal to either state or federal courts may be taken after a decision has been rendered by the state department of education.124
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Individualized Education Programs
The purpose, of course, of all these procedural safeguards is to ensure to the parent and child that an appropriate individualized education program (IEP) will be provided. The IEP goes beyond merely providing a place for the child in the public schools; more extensively, it must design and reduce to writing an educational plan that takes into account the identification of the child’s educational needs, the annual instructional goals and objectives, the specific educational programs and services to be provided, and the evaluation procedures necessary to monitor the child’s progress. An IEP is “more than a mere exercise in Public Relations”;125 indeed, it is the
“centerpiece of the statute’s education delivery system for disabled children”: The term individualized education program means a written statement for each child with a disability developed in any meeting by a representative of the local educational agency or an intermediate educational unit who shall be qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities. . . .126
This statement describing the child’s educational goals and specifying required services is developed by a multidisciplinary team. For initial evaluation and placement, the IEP team must have as members a school official, the child’s teacher(s), the parents, and a person or persons qualified to interpret evaluation results. Because the IEP must be jointly prepared by school officials and parents and reviewed annually, a condition of possible contention is created. Contests between parents and school districts over the nature of the IEP have resulted in a plethora of litigation in recent years, all of which has begun to form a formidable body of case law. The 1997 amendments, in creating a more pronounced outcome orientation, seek greater expectations and results that are to be achieved.127 Some of the new IDEA requirements will surely require further judicial interpretation and possibly a reevaluation of Rowley by the Supreme Court. A critical part of future litigation will almost certainly interpret and reinterpret the congressional intent of the following 1997 requirements for the child’s IEP statement: 1. The child’s present level of performance must be stated, requiring the school district to specifically indicate “how the child’s disability affects the child’s involvement and progress in the general curriculum.”128 2. The annual goals must be “measurable,” and the child must “progress in the general curriculum.”129 3. Program modifications must be provided that will enable the child to “advance appropriately” toward attaining annual goals.130 4. Provision must be made for the child to participate in state or school district student achievement assessments.131 5. Evaluation procedures must relate to IEP objectives and measure the child’s progress toward annual goals.132
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Individualized Education Programs
6. Parents must receive periodic report cards indicating the child’s progress and the extent to which the progress is sufficient to achieve annual goals.133 Such definitive outcome requirements of the 1997 amendments have important implications for measuring the “benefit” received by the special-needs child. The requirement of “measurable annual goals”134 alone will take the benefit discussion to a new level of judicial inquiry and explanation.
The “Free Appropriate Public Education” Clause of the EAHCA Does Not Require a State to Maximize the Potential of Each Special-Needs Child
Board of Education of Hendrick Hudson Central School District v. Rowley Supreme Court of the United States, 1982. 458 U.S. 176, 102 S. Ct. 3034.
Justice REHNQUIST delivered the opinion of the Court. This case presents a question of statutory interpretation. Petitioners contend that the Court of Appeals and the District Court misconstrued the requirements imposed by Congress upon States which receive federal funds under the Education of the Handicapped Act. We agree and reverse the judgment of the Court of Appeals. The Education of the Handicapped Act provides federal money to assist state and local agencies in educating handicapped children, and conditions such funding upon a State’s compliance with extensive goals and procedures. . . . This case arose in connection with the education of Amy Rowley, a deaf student at the Furnace Woods School in the Hendrick Hudson Central School District, Peekskill, N.Y. Amy has minimal residual hearing and is an excellent lip reader. During the year before she began attending Furnace Woods, a meeting between her parents and school administrators resulted in a
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decision to place her in a regular kindergarten class in order to determine what supplemental services would be necessary to her education. Several members of the school administration prepared for Amy’s arrival by attending a course in sign-language interpretation, and a teletype machine was installed in the principal’s office to facilitate communication with her parents, who are also deaf. At the end of the trial period it was determined that Amy should remain in the kindergarten class, but that she should be provided with an FM hearing aid which would amplify words spoken into a wireless receiver by the teacher or fellow students during certain classroom activities. Amy successfully completed her kindergarten year. As required by the Act, an IEP was prepared for Amy during the fall of her first-grade year. The IEP provided that Amy should be educated in a regular classroom at Furnace Woods, should continue to use the FM hearing aid, and should receive instruction from a tutor for the deaf for one hour each day and from a speech therapist for three hours each week. The Rowleys agreed with parts of the IEP but insisted that Amy also be provided a qualified sign-language interpreter in all her academic classes in lieu of the assistance proposed in other parts of the IEP. Such an interpreter had been placed in Amy’s kindergarten class for a two-week experimental period, but the interpreter had reported that Amy did not need his services at that time. The school administrators likewise concluded that Amy did not need such an interpreter in her first-grade classroom. They reached this conclusion after consulting the school district’s Committee on the Handicapped, which had received expert evidence from Amy’s parents on the importance of a sign-language interpreter, received testimony from Amy’s teacher and other persons familiar with her academic and social progress, and visited a class for the deaf. When their request for an interpreter was denied, the Rowleys demanded and received a hearing before an independent examiner. After receiving evidence from both sides, the examiner agreed with the administrators’ determination that an interpreter was not necessary because “Amy was achieving educationally, academically, and socially” without such assistance. The examiner’s decision was affirmed on appeal by the New York Commissioner of Education on the
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basis of substantial evidence in the record. Pursuant to the Act’s provision for judicial review, the Rowleys then brought an action in the United States District Court for the Southern District of New York, claiming that the administrators’ denial of the sign-language interpreter constituted a denial of the “free appropriate public education” guaranteed by the Act. . . . We granted certiorari to review. . . . Such review requires us to consider two questions: What is meant by the Act’s requirement of a “free appropriate public education”? And what is the role of state and federal courts in exercising the review granted by 20 U.S.C. § 1415? We consider these questions separately. This is the first case in which this Court has been called upon to interpret any provision of the Act. . . . “[T]he Act itself does not define ‘appropriate education,’” but leaves “to the courts and the hearing officers” the responsibility of “giv(ing) content to the requirement of an ‘appropriate education.’” Petitioners contend that the definition of the phrase “free appropriate public education” used by the courts below overlooks the definition of that phrase actually found in the Act. Respondents agree that the Act defines “free appropriate public education,” but contend that the statutory definition is not “functional” and thus “offers judges no guidance in their consideration of controversies involving ‘the identification, evaluation, or educational placement of the child or the provision of a free appropriate public education.’ ” . . . We are loath to conclude that Congress failed to offer any assistance in defining the meaning of the principal substantive phrase used in the Act. It is beyond dispute that, contrary to the conclusions of the courts below, the Act does expressly define “free appropriate public education”: The term “free appropriate public education” means special education and related services which (A) have been provided at public expense, under public supervision and direction, and without charge, (B) meet the standards of the State educational agency, (C) include an appropriate preschool, elementary, or secondary school education in the State involved, and (D) are provided in conformity with the individualized education program required under section 1414(a)(5) of this title. § 1401(18) (emphasis added).
“Special education,” as referred to in this definition, means “specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a handicapped child, including classroom instruction, instruction in physical education, home instruction, and instruction in hospitals and institutions.” § 1410(16). “Related services” are defined as “transportation, and such developmental, corrective, and other supportive services . . . as may be required to assist a handicapped child to benefit from special education.” § 1401(17). Like many statutory definitions, this one tends toward the cryptic rather than the comprehensive, but that is scarcely a reason for abandoning the quest for legislative intent. . . . According to the definitions contained in the Act, a “free appropriate public education” consists of educational instruction specially designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child “to benefit” from the instruction. . . . Noticeably absent from the language of the statute is any substantive standard prescribing the level of education to be accorded handicapped children. Certainly the language of the statute contains no requirement like the one imposed by the lower courts—that States maximize the potential of handicapped children “commensurate with the opportunity provided to other children.” That standard was expounded by the District Court without reference to the statutory definitions or even to the legislative history of the Act. Although we find the statutory definition of “free appropriate public education” to be helpful in our interpretation of the Act, there remains the question of whether the legislative history indicates a congressional intent that such education meets some additional substantive standard. For an answer, we turn to that history. . . . . . . It is evident from the legislative history that the characterization of handicapped children as “served” referred to children who were receiving some form of specialized educational services from the States, and that the characterization of children as “unserved” referred to those who were receiving no specialized educational services. . . . Respondents contend that “the goal of the Act is to provide each handicapped child with an
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Individualized Education Programs
equal educational opportunity.” We think, however, that the requirement that a State provide specialized educational services to handicapped children generates no additional requirement that the services so provided be sufficient to maximize each child’s potential “commensurate with the opportunity provided other children.” Respondents and the United States correctly note that Congress sought “to provide assistance to the States in carrying out their responsibilities under . . . the Constitution of the United States to provide equal protection of the laws.” But we do not think that such statements imply a congressional intent to achieve strict equality of opportunity or services. . . . . . . In explaining the need for federal legislation, the House Report noted that “no congressional legislation has required a precise guarantee for handicapped children, i.e., a basic floor of opportunity that would bring into compliance all school districts with the constitutional right of equal protection with respect to handicapped children.” Assuming that the Act was designed to fill the need identified in the House Report—that is, to provide a “basic floor of opportunity” consistent with equal protection—neither the Act nor its history persuasively demonstrates that Congress thought that equal protection required anything more than equal access. Therefore, Congress’ desire to provide specialized educational services, even in furtherance of “equality,” cannot be read as imposing any particular substantive educational standard upon the States. The District Court and the Court of Appeals thus erred when they held that the Act requires New York to maximize the potential of each handicapped child commensurate with the opportunity provided non-handicapped children. Desirable though that goal might be, it is not the standard that Congress imposed upon States which receive funding under the Act. Rather, Congress sought primarily to identify and evaluate handicapped children, and to provide them with access to a free public education. Implicit in the congressional purpose of providing access to a “free appropriate public education” is the requirement that the education to which access is provided be sufficient to confer some educational benefit upon the handicapped child. It would do little good for Congress to
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spend millions of dollars in providing access to a public education only to have the handicapped child receive no benefit from that education. The statutory definition of “free appropriate public education,” in addition to requiring that States provide each child with “specially designed instruction,” expressly requires the provision of “such . . . supportive services . . . as may be required to assist a handicapped child to benefit from special education.” (emphasis added.) We therefore conclude that the “basic floor of opportunity” provided by the Act consists of access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child. The determination of when handicapped children are receiving sufficient educational benefits to satisfy the requirement of the Act presents a more difficult problem. The Act requires participating States to educate a wide spectrum of handicapped children, from the marginally hearing-impaired to the profoundly retarded and palsied. . . . We do not attempt today to establish any one test for determining the adequacy of educational benefits conferred upon all children covered by the Act. Because in this case we are presented with a handicapped child who is receiving substantial specialized instruction and related services, and who is performing above average in the regular classrooms of a public school system, we confine our analysis to that situation. The Act requires participating States to educate handicapped children with nonhandicapped children whenever possible. When that “mainstreaming” preference of the Act has been met and a child is being educated in the regular classrooms of a public school system, the system itself monitors the educational progress of the child. Regular examinations are administered, grades are awarded, and yearly advancement to higher grade levels is permitted for those children who attain an adequate knowledge of the course material. The grading and advancement system thus constitutes an important factor in determining educational benefit. Children who graduate from our public school systems are considered by our society to have been “educated” at least to the grade level they have completed, and to an “education” for handicapped children is precisely what Congress sought to provide in the Act.
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When the language of the Act and its legislative history are considered together, the requirements imposed by Congress become tolerably clear. Insofar as a State is required to provide a handicapped child with a “free appropriate public education,” we hold that it satisfies this requirement by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction. Such instruction and services must be provided at public expense, must meet the State’s educational standards, must approximate the grade levels used in the State’s regular education, and must comport with the child’s IEP. In addition, the IEP, and therefore the personalized instruction, should be formulated in accordance with the requirements of the Act and, if the child is being educated in the regular classrooms of the public education system, should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade. . . . In assuring that the requirements of the Act have been met, courts must be careful to avoid imposing their view of preferable educational methods upon the States. The primary responsibility for formulating the education to be accorded a handicapped child, and for choosing the educational method most suitable to the child’s needs, was left by the Act to state and local educational agencies in cooperation with the parents or guardian of the child. The Act expressly charges States with the responsibility of “acquiring and disseminating to teachers and administrators of programs for handicapped children significant information derived from educational research, demonstration, and similar projects, and [of] adopting, where appropriate, promising educational practices and materials.” § 1413(a)(3). In the face of such a clear statutory directive, it seems highly unlikely that Congress intended courts to overturn a State’s choice of appropriate educational theories in a proceeding conducted pursuant to § 1415(e)(2). . . . . . . [W]e conclude that the Court of Appeals erred in affirming the decision of the District Court. Neither the District Court nor the Court of Appeals found that petitioners had failed to comply with the procedures of the Act, and the findings of neither court would support a
conclusion that Amy’s educational program failed to comply with the substantive requirements of the Act. On the contrary, the District Court found that the “evidence firmly establishes that Amy is receiving an ‘adequate’ education, since she performs better than the average child in her class and is advancing easily from grade to grade.” In light of this finding, and of the fact that Amy was receiving personalized instruction and related services calculated by the Furnace Woods school administrators to meet her educational needs, the lower courts should not have concluded that the Act requires the provision of a sign-language interpreter. Accordingly, the decision of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. So ordered.
CASE NOTE The IDEA does not require that the school district do more than provide and implement an IEP that enables the child to have access to a “meaningful” education. Thompson R2 – J School District v. Luke P., 540 F.3d 1143 (10th Cir. 2008).
Under IDEIA, the Burden of Proof in an Administrative Hearing Is Properly Placed Upon the Student
Schaffer v. Weast Supreme Court of the United States, 2005. 546 U.S. 49, 126 S. Ct. 528.
O’CONNOR, J., delivered the opinion of the Court. . . . The Individuals with Disabilities Education Act (IDEA or Act), 84 Stat. 175, as amended, 20 U.S.C.A. § 1400 et seq. (main ed. and Supp.2005), is a Spending Clause statute that seeks to ensure that “all children with disabilities have available to them a free appropriate public education,” § 1400(d)(1)(A). Under IDEA, school districts must create an “individualized education program” (IEP) for each disabled child. If parents
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Individualized Education Programs
believe their child’s IEP is inappropriate, they may request an “impartial due process hearing.” The Act is silent, however, as to which party bears the burden of persuasion at such a hearing. We hold that the burden lies, as it typically does, on the party seeking relief. . . . IDEA is “frequently described as a model of ‘cooperative federalism.’ ” It “leaves to the States the primary responsibility for developing and executing educational programs for handicapped children, [but] imposes significant requirements to be followed in the discharge of that responsibility.” . . . The core of the statute, however, is the cooperative process that it establishes between parents and schools. (“Congress placed every bit as much emphasis upon compliance with procedures giving parents and guardians a large measure of participation at every stage of the administrative process, . . . as it did upon the measurement of the resulting IEP against a substantive standard”). The central vehicle for this collaboration is the IEP process. State educational authorities must identify and evaluate disabled children, develop an IEP for each one, and review every IEP at least once a year. Each IEP must include an assessment of the child’s current educational performance, must articulate measurable educational goals, and must specify the nature of the special services that the school will provide. Parents and guardians play a significant role in the IEP process. They must be informed about and consent to evaluations of their child under the Act. Parents are included as members of “IEP teams.” They have the right to examine any records relating to their child, and to obtain an “independent educational evaluation of the[ir] child.” They must be given written prior notice of any changes in an IEP, and be notified in writing of the procedural safeguards available to them under the Act. If parents believe that an IEP is not appropriate, they may seek an administrative “impartial due process hearing.” School districts may also seek such hearings, as Congress clarified in the 2004 amendments. They may do so, for example, if they wish to change an existing IEP but the parents do not consent, or if parents refuse to allow their child to be evaluated. As a practical matter, it appears that most hearing requests come from parents rather than schools.
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Although state authorities have limited discretion to determine who conducts the hearings, and responsibility generally for establishing fair hearing procedures, Congress has chosen to legislate the central components of due process hearings. It has imposed minimal pleading standards, requiring parties to file complaints setting forth “a description of the nature of the problem,” and “a proposed resolution of the problem to the extent known and available . . . at the time.” At the hearing, all parties may be accompanied by counsel, and may “present evidence and confront, cross-examine, and compel the attendance of witnesses.” After the hearing, any aggrieved party may bring a civil action in state or federal court. Prevailing parents may also recover attorney’s fees. Congress has never explicitly stated, however, which party should bear the burden of proof at IDEA hearings. This case concerns the educational services that were due, under IDEA, to petitioner Brian Schaffer. Brian suffers from learning disabilities and speech-language impairments. From prekindergarten through seventh grade he attended a private school and struggled academically. In 1997, school officials informed Brian’s mother that he needed a school that could better accommodate his needs. Brian’s parents contacted respondent Montgomery County Public Schools System (MCPS) seeking a placement for him for the following school year. MCPS evaluated Brian and convened an IEP team. The committee generated an initial IEP offering Brian a place in either of two MCPS middle schools. Brian’s parents were not satisfied with the arrangement, believing that Brian needed smaller classes and more intensive services. The Schaffers thus enrolled Brian in another private school, and initiated a due process hearing challenging the IEP and seeking compensation for the cost of Brian’s subsequent private education. In Maryland, IEP hearings are conducted by administrative law judges (ALJs). After a 3-day hearing, the ALJ deemed the evidence close, held that the parents bore the burden of persuasion, and ruled in favor of the school district. The parents brought a civil action challenging the result. The United States District Court for the District of Maryland reversed and remanded, after
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concluding that the burden of persuasion is on the school district. Around the same time, MCPS offered Brian a placement in a high school with a special learning center. Brian’s parents accepted, and Brian was educated in that program until he graduated from high school. The suit remained alive, however, because the parents sought compensation for the private school tuition and related expenses. We granted certiorari, . . . to resolve the following question: At an administrative hearing assessing the appropriateness of an IEP, which party bears the burden of persuasion? The term “burden of proof” is one of the “slipperiest member[s] of the family of legal terms.” 2 J. Strong, McCormick on Evidence § 342, p. 433 (5th ed. 1999) (hereinafter McCormick). Part of the confusion surrounding the term arises from the fact that historically, the concept encompassed two distinct burdens: the “burden of persuasion,” i.e., which party loses if the evidence is closely balanced, and the “burden of production,” i.e., which party bears the obligation to come forward with the evidence at different points in the proceeding. . . . We note at the outset that this case concerns only the burden of persuasion, as the parties agree, . . . and when we speak of burden of proof in this opinion, it is this to which we refer. When we are determining the burden of proof under a statutory cause of action, the touchstone of our inquiry is, of course, the statute. The plain text of IDEA is silent on the allocation of the burden of persuasion. We therefore begin with the ordinary default rule that plaintiffs bear the risk of failing to prove their claims. McCormick § 337, at 412 (“The burdens of pleading and proof with regard to most facts have been and should be assigned to the plaintiff who generally seeks to change the present state of affairs and who therefore naturally should be expected to bear the risk of failure of proof or persuasion”); . . . (“Perhaps the broadest and most accepted idea is that the person who seeks court action should justify the request, which means that the plaintiffs bear the burdens on the elements in their claims”). Thus, we have usually assumed without comment that plaintiffs bear the burden of persuasion regarding the essential aspects of their claims. . . .
The ordinary default rule, of course, admits of exceptions. . . . For example, the burden of persuasion as to certain elements of a plaintiff’s claim may be shifted to defendants, when such elements can fairly be characterized as affirmative defenses or exemptions. . . . But while the normal default rule does not solve all cases, it certainly solves most of them. Decisions that place the entire burden of persuasion on the opposing party at the outset of a proceeding— as petitioners urge us to do here—are extremely rare. Absent some reason to believe that Congress intended otherwise, therefore, we will conclude that the burden of persuasion lies where it usually falls, upon the party seeking relief. . . . Petitioners . . . contend that we should take instruction from the lower court opinions of Mills v. Board of Education, . . . and Pennsylvania Association for Retarded Children v. Pennsylvania, . . . (hereinafter PARC). IDEA’s drafters were admittedly guided “to a significant extent” by these two landmark cases. As the court below noted, however, the fact that Congress “took a number of the procedural safeguards from PARC and Mills and wrote them directly into the Act” does not allow us to “conclude . . . that Congress intended to adopt the ideas that it failed to write into the text of the statute.” Petitioners also urge that putting the burden of persuasion on school districts will further IDEA’s purposes because it will help ensure that children receive a free appropriate public education. In truth, however, very few cases will be in evidentiary equipoise. Assigning the burden of persuasion to school districts might encourage schools to put more resources into preparing IEPs and presenting their evidence. But IDEA is silent about whether marginal dollars should be allocated to litigation and administrative expenditures or to educational services. Moreover, there is reason to believe that a great deal is already spent on the administration of the Act. Litigating a due process complaint is an expensive affair, costing schools approximately $8,000to-$12,000 per hearing. . . . Congress has also repeatedly amended the Act in order to reduce its administrative and litigation-related costs. For example, in 1997 Congress mandated that States offer mediation for IDEA disputes. . . . In 2004, Congress added a mandatory “resolution
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Individualized Education Programs
session” prior to any due process hearing. . . . It also made new findings that “[p]arents and schools should be given expanded opportunities to resolve their disagreements in positive and constructive ways,” and that “[t]eachers, schools, local educational agencies, and States should be relieved of irrelevant and unnecessary paperwork burdens that do not lead to improved educational outcomes.” Petitioners in effect ask this Court to assume that every IEP is invalid until the school district demonstrates that it is not. The Act does not support this conclusion. IDEA relies heavily upon the expertise of school districts to meet its goals. It also includes a so-called “stay-put” provision, which requires a child to remain in his or her “then-current educational placement” during the pendency of an IDEA hearing. Congress could have required that a child be given the educational placement that a parent requested during a dispute, but it did no such thing. Congress appears to have presumed instead that, if the Act’s procedural requirements are respected, parents will prevail when they have legitimate grievances. See Rowley, . . . (noting the “legislative conviction that adequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP”). Petitioners’ most plausible argument is that “[t]he ordinary rule, based on considerations of fairness, does not place the burden upon a litigant of establishing facts peculiarly within the knowledge of his adversary.” . . . But this “rule is far from being universal, and has many qualifications upon its application.” . . . School districts have a “natural advantage” in information and expertise, but Congress addressed this when it obliged schools to safeguard the procedural rights of parents and to share information with them. See School Comm. of Burlington v. Department of Ed. of Mass., . . . As noted above, parents have the right to review all records that the school possesses in relation to their child. They also have the right to an “independent educational evaluation of the[ir] child.” The regulations clarify this entitlement by providing that a “parent has the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained
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by the public agency.” 34 CFR § 300.502(b)(1) (2005). IDEA thus ensures parents access to an expert who can evaluate all the materials that the school must make available, and who can give an independent opinion. They are not left to challenge the government without a realistic opportunity to access the necessary evidence, or without an expert with the firepower to match the opposition. Additionally, in 2004, Congress added provisions requiring school districts to answer the subject matter of a complaint in writing, and to provide parents with the reasoning behind the disputed action, details about the other options considered and rejected by the IEP team, and a description of all evaluations, reports, and other factors that the school used in coming to its decision. Prior to a hearing, the parties must disclose evaluations and recommendations that they intend to rely upon. IDEA hearings are deliberately informal and intended to give ALJs the flexibility that they need to ensure that each side can fairly present its evidence. IDEA, in fact, requires state authorities to organize hearings in a way that guarantees parents and children the procedural protections of the Act. Finally, and perhaps most importantly, parents may recover attorney’s fees if they prevail. These protections ensure that the school bears no unique informational advantage. . . . We hold no more than we must to resolve the case at hand: The burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief. In this case, that party is Brian, as represented by his parents. But the rule applies with equal effect to school districts: If they seek to challenge an IEP, they will in turn bear the burden of persuasion before an ALJ. The judgment of the United States Court of Appeals for the Fourth Circuit is, therefore, affirmed. It is so ordered.
CASE NOTES 1. A school district must clearly identify an appropriate placement for a student requiring special education services. Where a school district provided an analysis of a student’s needs, discussing the advantages and disadvantages of various programs in the district, but failed to identify the schools(s) where
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the services were provided, the IEP was found to be deficient and invalid. The U.S. Court of Appeals, Fourth Circuit, held that the “IEP must identify” the school where the educational services are provided in order for the parents to be able to satisfactorily evaluate the public school services offered as opposed to private school placement. A. K. v. Alexandria City School Board, 484 F.3d 672 (4th Cir. 2007). 2. IDEA does not require that parents consent to an IEP. If the school district establishes and offers an appropriate IEP, the requirements of the law are met. A. E. v. Westport Board of Education, 251 Fed. Appx. 685 (2nd Cir. 2007). 3. A school district can compel a medical examination of a special education student where it is necessary for IDEA evaluation purposes. Allowing a medical evaluation without parental consent of a public school student does not violate the student’s right of privacy since the student is free to decline special education under IDEA rather than submit to a medical examination. Shelby S. v. Conroe Independent School District, 454 F.3d 450 (2006). 4. A school district cannot compel a child to be evaluated under IDEA. The 2004 IDEA “child find” provision does not authorize the school district to evaluate a child for special education services if the parents refuse consent to evaluate the child and waive the benefits of IDEA and home-school the child. In an Eighth Circuit case, the school district relied on language of the IDEA statute 20 U.S.C. § 1414(a) (l) (D) (ii) (I) that says that if a parent does not provide consent for an initial evaluation or the parent fails to a request to provide consent, the school district “may pursue an initial evaluation of the child by utilizing the [due process] procedures” prescribed in the law. The U.S. Court of Appeals ruled that the word may does not give the school district absolute discretion if read in the overall context of the statute. The context that this court read into the statute, including “child find,” led to the conclusion that IDEA’s overall purpose is “to ensure that all children with disabilities have available to them a free appropriate education,” but Congress did not
intend for a school district to force an evaluation in any circumstance. As here, where a home-schooled child’s parents refused consent, privately educated the child, and expressly waived all benefits under IDEA, an evaluation had no purpose and could not be compelled by the school district. Fitzgerald v. Camdenton R – III School District, 439 F.3d 773 (8th Cir. 2006). 5. At times, because of a multiplicity of factors, it becomes difficult to determine whether a disability is the reason for learning problems or whether the problems are attributable to some other cause. Where a student with emotional and behavioral problems was evaluated by a school district IDEA committee and was determined not to qualify for special education services, a federal district court overruled the committee, finding that the student was emotionally disturbed as defined by both state and federal regulations. The U.S. Court of Appeals, Second Circuit, upheld the district court’s ruling that the student had been deprived of IDEA services due to the school committee’s improper classification. The court’s conclusion was based on evidence that indicated that the student’s inability to learn could not be explained entirely by intellectual, sensory, or health factors. There was no evidence to show that the student’s performance had improved from treatment for her emotional and behavioral problems. In the absence of evidence to the contrary, the appeals court reasoned that if the girl’s academic problems resulted, at least in part, from her emotional problems and depression, then she was therefore eligible for IDEA. Muller ex rel. Muller v. Committee on Special Education of East Islip Free Union School District, 145 F.3d 95 (2nd Cir. 1999). 6. If the IEP does not confer some educational benefit, then the right to compensatory education begins at the time the school knows or should have known the IEP was deficient. The burden of determining whether the IEP is appropriate rests not with the parents but with the teachers, therapists, administrators, and multidisciplinary team that evaluates the student’s progress. M. C. ex rel. J. C. v. Central Regional School, 81 F.3d 389 (3rd Cir. 1996).
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Attention Deficit Hyperactivity Disorder
7. In a case where a student repeated two grades in elementary school before being tested by the school to determine his need for special education assistance and, as a result of the delay, was too old by his senior year to compete in interscholastic baseball under the rules of the Missouri State High School Activities Association, the court upheld the athletic association’s application of its age rule. The student had filed suit under Section 504 of the Rehabilitation Act of 1973, Title II of the Americans with Disabilities Act, and 42 U.S.C. § 1983. The Missouri athletic association established that the age requirement was essential because it helped reduce competitive advantage, protected younger athletes from harm, prevented coaches from redshirting to gain a competitive edge, and also prevented athletes from delaying their education to play longer. The court ruled that the student was not an “otherwise qualified individual” under the Rehabilitation Act, the ADA, or Section 1983. Pottgen v. Missouri State High School Activities Ass’n, 40 F.3d 926 (8th Cir. 1994). 8. The IDEA has produced an avalanche of court decisions interpreting various aspects of its requirements. Federal appellate courts have increasingly been called upon to make decisions concerning technical educational matters. Illustrative of the depth into such matters that litigation has carried the judiciary is a 2003 case where the U.S. Court of Appeals, Second Circuit, was called upon to decide the kind of a calculator that a student with a disability should be using. The parents wanted the school district to provide a more advanced calculator, the Texas Instruments Model 92 (TI-92), for a math class, while the school district recommended the use of a TI-82. The parent sued, and the case climbed all the way to the U.S. Court of Appeals. The evidence degenerated into whether the student could use the more advanced calculator to “check” math problems or to “solve” them. Finally, after hundreds of hours of litigation, the court mercifully ended it all by holding that the school district’s denial of the more advanced calculator did not deprive the student of a FAPE within the meaning of IDEA. Sherman v. Mamaroneck Union Free School District, 340 F.3d 87 (2nd Cir. 2003).
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Attention Deficit Hyperactivity Disorder
A disability not specifically listed under the IDEA is Attention Deficit Hyperactivity Disorder (ADHD). ADHD is not a clinically definable disability, illness, or disease. As a behavioral disorder it is most commonly defined by the criteria of inattention, hyperactivity, and marked impulsiveness.135 ADHD may also be referred to as attention deficit disorder (ADD), that is an attention deficit disorder without the hyperactivity, minimal brain damage, or brain dysfunction.136 Chamberlin et al. explain that “for many people with ADHD, life is a never-ending shift from one activity to another. Focus cannot be kept on any one topic long enough for a detailed assessment. . . . this struggle for focus can cause great chaos that can be disruptive and diminish selfesteem.” 137 Although not specified, ADHD children may be covered under the IDEA, Section 504 of the Rehabilitation Act of 1973, and the Americans with Disabilities Act of 1990 (ADA). An ADHD child may be eligible for IDEA services under one of three categories: (1) other health impaired, (2) specific learning disability, and (3) seriously emotionally disturbed. The exact definition and identification of disabilities in many cases tend to be subjective, and both educational and medical experts can readily disagree in a particular situation. For example, the federal regulation promulgated to implement the IDEA attempts to define disabilities such as “serious emotional disturbance” as qualifying disabilities for special education services.138 One court stated, “[E]vidence that a student’s bad behavior was primarily caused by attention deficit disorder was sufficient to establish that the student was entitled to benefits under IDEA.”139 Similarly, another federal court relied on evidence indicating that an ADHD child had high learning potential, which had gone unfulfilled because of behavior problems and ruled that the child was therefore eligible for the IDEA.140 On the other hand, an ADHD child in a gifted program who simply lacked motivation and did not need special education was found not eligible for the IDEA.141 The federal regulation defining “serious emotional disturbance” pointedly excludes “social maladjustment” as a disability. The differences are, however, still unclear, as litigants in Springer v.
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Fairfax County School Board, 1998, experienced.142 After extensive evidentiary submissions and litigation, the U.S. Court of Appeals, Fourth Circuit, gave controlling weight to the testimony of three psychologists who, as experts in the case, concluded that the plaintiff child did not show the signs of pervasive depression characteristic of serious emotional disturbance and that there was not established a causal link between the characteristics of the child and the alleged educational difficulties. Thus, identification of such disabilities promises to be a continuing source of litigation as experts conflict in each case. Moreover, the requirement of a causal link between the disability and educational attainment promises to be fertile ground for further differences of opinion among experts in each case. Further, concerning application of Section 504, the ADHD child qualifies for protection because a major life activity, education, is implicated. Section 504 requires the schools to reasonably accommodate the child but is far less prescriptive than the IDEA. (Section 504 is explained in further detail later in this chapter.) An ADHD child could also qualify under the Americans with Disabilities Act of 1990,143 which prohibits discrimination against individuals with disabilities at work, at school, and in public accommodations. The ADA is not limited to those organizations and programs that receive federal funds. The schools, under the ADA, must make reasonable accommodations for people with disabilities.
Student’s Behavioral Problems Derived from Non-Attention Deficit Hyperactivity Disorder (ADHD) from Related Occurrences Did Not Qualify Him as a “Child with a Disability” Under IDEA
Alvin Independent School District v. A. D. United States Court of Appeals, Fifth Circuit, 2007 503 F.3d. 378
BENAVIDES, Circuit Judge: Appellant A.D. appeals the district court’s judgment in favor of Appellee Alvin Independent
School District (“AISD”), finding that the Special Education Hearing Officer (“Hearing Officer”) improperly determined that A.D. meets the definition of “child with a disability” under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-91. We AFFIRM. A.D. is a student in AISD diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”). A.D. receives medical treatment for his ADHD, including prescriptions for ADHD medications. He has attended AISD schools since he was three years old, and he participated in the district’s Early Childhood and Preschool Program for Children with Disabilities on the basis of a speech impediment. Because of both the speech impediment and the ADHD, A.D. qualified for special education services through third grade, at which point his mother and school personnel agreed that he no longer qualified for those services. After his dismissal from special education, A.D. performed well throughout elementary school. Starting in seventh grade, however, A.D. began to exhibit behavioral problems. He received numerous discipline referrals, and teachers removed him several times from the classroom and sent him to in-school suspension. A.D. was placed in the “At Risk” program at Alvin Junior High, which involved a Student Success Team consisting of several school personnel meeting regularly to discuss his performance. A.D. continued to pass all of his classes and met the statewide standards required by the Texas Assessment of Knowledge and Skills (“TAKS”). A.D.’s behavioral problems continued throughout eighth grade. Around this time, A.D. faced the tragic death of his baby brother. Additionally, A.D. began to abuse alcohol, developed a strained relationship with his stepfather, and his mother was expecting a new baby. In response to these events and A.D.’s ongoing behavioral problems, the Student Success Team met with A.D. and drafted an “Academic and Behavior Contract,” which required A.D. to abide by certain standards, such as taking his medication every day, following the dress code, and completing assignments on time. A.D. signed the contract and attended all but three of the remaining days in the school year. However, the behavioral problems continued.
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Attention Deficit Hyperactivity Disorder
A.D.’s behavioral issues culminated in theft of property and robbery of a school-sponsored concession stand. Due to the latter incident, A.D. was sent to in-school suspension for ten days, and AISD eventually recommended A.D.’s placement in an alternative education program. Even with these issues, however, A.D. passed the eighth grade with one A, three Bs, two Cs, and one D and passed the TAKS test, receiving an evaluation of “commended” on the reading portion. On May 11, 2005, while the disciplinary decision for A.D.’s theft was pending, A.D.’s mother requested that A.D. receive special education services. On May 25, 2005, she requested a due process hearing before an impartial hearing officer selected by the Texas Education Agency, alleging that AISD violated A.D.’s right to a “free appropriate public education” by failing to: (1) identify A.D. as a child with a disability, (2) evaluate A.D. as a child with a disability, and (3) place A.D. in special education. In response, the Admissions, Review, and Dismissal Committee (“ARD Committee”) undertook a “full and independent evaluation” of A.D. that involved various psychological, behavioral, and intelligence tests; informal evaluations with a psychologist, an educational diagnostician, teachers, and A.D.’s mother; and a review of school files. The ARD Committee requested information from A.D.’s treating physicians but did not receive it before completion of the written report. In the written report, A.D.’s cognitive abilities were found to be in the average range. Dr. Peters, the evaluating psychologist, concluded that A.D.’s symptoms of ADHD did not prevent him from making age-appropriate academic and social progress. Ms. McDaniel, the educational diagnostician, concluded that A.D.’s academic performance was “high average” in basic reading skills and “average” in all remaining areas. Approximately one month later, AISD received the information requested from A.D.’s treating physicians, Dr. Kazmi and Dr. Nguyen, who recommended special education services for A.D. AISD also received a report from Dr. Rasheed, a new, privately obtained psychiatrist, who recommended special education services. On August 25, 2005, the ARD Committee met to consider the reports and concluded that A.D.
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was not eligible for special education services. A.D.’s mother disagreed with the result and requested an “independent educational evaluation” pursuant to 20 U.S.C. § 1415(b)(1). AISD denied the request and initiated a due process hearing. The due process hearing took place on November 10 and 11, 2005. The Hearing Officer reviewed the record and heard testimony in support of A.D. from Dr. Kazmi, Dr. Nguyen, Dr. Rasheed, and Dr. Sharp, a psychologist who reviewed A.D.’s file but never met him. The Hearing Officer heard testimony from A.D.’s teachers and Dr. Peters in support of the ARD Committee’s determination that A.D. was not eligible for special education services. Several teachers testified that A.D. was wellliked by his teachers and peers and agreed with Dr. Peters’ conclusion that A.D. was making age-appropriate social progress. The Hearing Officer concluded that A.D. was a “child with a disability” entitled to special education services and that AISD failed to provide him with a “free appropriate public education.” Additionally, the Hearing Officer concluded that AISD’s “full and independent evaluation” was incomplete because a licensed physician was not part of the ARD Committee as required by 19 Tex. Admin. Code E § 89.1040(c)(8) and, thus, determined that A.D. was entitled to an “independent educational evaluation.” AISD appealed the decision in federal district court, and both parties filed cross-motions for summary judgment. On October 6, 2006, the district court granted AISD’s motion for summary judgment and denied A.D.’s motion, finding that A.D. did not need special education and related services by reason of his ADHD and was, therefore, not a “child with a disability” under the IDEA. A.D. now appeals. A district court must accord “due weight” to the Hearing Officer’s findings. . . . However, the district court “must ultimately reach an independent decision based on a preponderance of the evidence.” . . . The IDEA places several conditions on the provision of federal aid to state special education programs, including that the state provide a “free appropriate public education” to children with disabilities. 20 U.S.C. § 1412(a)(1). A “free appropriate public education,” which involves
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special education and related services, . . . must be “specifically designed to meet the child’s unique needs, supported by services that will permit him ‘to benefit’ from the instruction.” . . . It thereby guarantees a “child with a disability” as defined under the IDEA a “basic floor” of educational opportunity. The Supreme Court notes that a “free appropriate public education” does not require states “to maximize the potential of each handicapped child. . . .” Rowley. The IDEA was reauthorized in 2004, and the new version became effective on July 1, 2005, after the events of this case but before the case was heard and decided by the Hearing Officer. . . . Similarly, the implementing regulations were recently rewritten, with the revisions taking effect on October 13, 2006. . . . This opinion cites to the prior version of the IDEA and its implementing regulations. . . . (citing “to the version of the IDEA in effect at the time of the events in th[e] case”). Only certain students with disabilities, however, are eligible for IDEA’s benefits. Specifically, to qualify for special education services a student must both: (1) have a qualifying disability and (2) “by reason thereof, need special education and related services.” In making this determination, a state or local education agency (here, the ARD Committee) must conduct a “full and individual evaluation” following statutorily prescribed standards. In this case, there is no dispute that A.D. satisfies the first prong because ADHD is considered an “other health impairment,” a recognized qualifying disability. Thus, the central dispute pertains to the second prong: by reason of his ADHD, does A.D. need special education and related services? AISD contends that A.D. does not need special education services because his educational performance is adequate without them, and, in the alternative, any need for special education services derives from sources other than his ADHD. In undertaking its review, “the district court [need not] defer to [the hearing officer’s] findings when its own review of the evidence indicates that the hearing officer erroneously assessed the facts or erroneously applied the law to the facts.” The district court properly cited and utilized the due weight standard of review.
A.D. also argues that the district court applied the wrong legal standard when determining “need” under 20 U.S.C. § 1401(3)(A). Specifically, A.D. argues that the district court should have looked to whether or not his ADHD “adversely affects his educational performance” rather than whether his ADHD adversely impacts his ability to “benefit from regular education.” A.D.’s argument is flawed for two reasons. First, the “adversely affects a child’s educational performance” standard is a subpart of the definition of “other health impairment.” Thus, establishing an adverse effect on educational performance demonstrates that A.D. has an “other health impairment.” As described above, however, determining that a child has an “other health impairment” only fulfills the first prong of the “child with a disability” analysis under 20 U.S.C. § 1401(3)(A). A.D. must still fulfill the second prong by demonstrating that, by reason of his ADHD, he needs special education services. Therefore, the fact that A.D.’s ADHD adversely affects his educational performance does not necessarily mean that he is eligible for special education services under the IDEA. “Other health impairment means having limited strength, vitality, or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that (i) Is due to chronic or acute health problems such as . . . attention deficit hyperactivity disorder . . . and (ii) Adversely affects a child’s educational performance.” 34 C.F.R. § 300.8(c)(9). Second, contrary to A.D.’s assertion, the district court did not base its holding upon the “benefit from regular education” standard. Under this standard, the district court would have focused exclusively on A.D.’s passing grades and TAKS scores. Rather, the district court also considered “a variety of sources, including aptitude and achievement tests, parent input, and teacher recommendations, as well as information about the child’s physical condition, social or cultural background, and adaptive behavior. . . .” 34 C.F.R. § 300.306(c)(1)(i) (outlining procedures for determining “eligibility and educational need”). Therefore, in determining whether A.D. needs special education services
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Least-Restrictive Environment
by reason of his ADHD, the district court properly considered the unique facts and circumstances of this case. Finally, A.D. argues that the district court reached an incorrect conclusion in holding that he has no need for special education by reason of his disability. A.D. relies primarily on the reports and testimony of his doctors; his past behavioral issues; his failing grades on various exams and progress report cards; and AISD’s attempts to assist A.D., such as the Academic and Behavior Contract and A.D.’s placement in the “At Risk” program. He argues that the district court placed undue weight on his academic performance, as determined by the TAKS test and final class grades. AISD responds, and the district court agreed, that A.D. does not need special education services for several reasons. First, A.D.’s passing grades and success on the TAKS test demonstrate academic progress. See Rowley, 458 U.S. at 207 n. 28, 102 S. Ct. 3034 (“[T]he achievement of passing marks and advancement from grade to grade will be one important factor in determining educational benefit.”). Second, A.D.’s teachers testified that, despite his behavioral issues, he did not need special education and was achieving social success in school. AISD argues that the district court properly determined that the testimony of A.D.’s teachers, who observed his educational progress first-hand, is more reliable than much of the testimony from A.D.’s physicians, who based their opinions on faulty information culled from isolated visits, select documents provided by A.D.’s mother, and statements from A.D.’s mother about what she believed was happening in school. Finally, AISD argues that much of A.D.’s behavioral problems are derived from non-ADHD related occurrences, such as alcohol abuse and the tragic death of A.D.’s brother. Thus, AISD asserts, any educational need is not by reason of A.D.’s ADHD, as required by the statute. We agree with AISD’s argument and find that the district court’s factual findings were not clearly erroneous. After reviewing the record, we hold that the district court properly considered evidence of A.D.’s academic, behavioral, and social progress in determining that A.D. does not need special education services by reason of his ADHD and, therefore, is not a “child with a disability” under
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the IDEA. Because we find that A.D. does not qualify for special education services, we need not reach his final argument regarding AISD’s alleged procedural errors. In light of the foregoing, the decision of the district court is AFFIRMED.
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Least-Restrictive Environment
The IDEA advances the general philosophy that children with disabilities should be educated with typically developing children in the normal educational setting whenever possible. The objective is to give the child with a disability the opportunity to socialize and interact with other typically developing children and, further, to reduce as much as possible any formal educational processes that would tend to stigmatize or differentiate the child with a disability. This objective is clearly set out in the statute, which provides: To the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.144
This regulation requires that the broadest opportunity should be afforded to the student on a “continuum of alternative placements” and that when “selecting the least-restrictive environment, consideration [must be] given to any potential harmful effect on the child.”145 What precisely the “least-restrictive environment” requirement means operationally has been fertile ground for speculation, frequently leading to court action. The regulation promulgated pursuant to the IDEA provides for a “continuum of alternative placements.” 146 At one end of this continuum is the regular classroom as the least-restrictive environment and at the other end is the hospital as the most restrictive.147 Though mainstreaming is not specifically referred to by statute, it is generally considered
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to be an action that places the child in the leastrestrictive environment. Numerous courts have recognized that the IDEA gave strong congressional preference to integrating children with disabilities into regular classrooms.148 Although the basic concept of integrating special-needs students into the regular classroom has been established by the courts, the standard used to evaluate mainstreaming has been interpreted differently in various cases. The Third, Fifth, and Eleventh Circuits use what is known as the Daniel R. R. test, from a case of that name. 149 This test has a two-part inquiry: “First, we ask whether education in the regular classroom, with the use of supplemental aids and services, can be achieved satisfactorily for a given child. . . . If it cannot and the school intends to provide special education or to remove the child from regular education, we ask, second, whether the school has mainstreamed the child to the maximum extent appropriate.”150 The court in the Daniel R. R. case referred to several factors that should be considered in deciding whether the regular classroom constitutes the proper placement, including the special needs child’s ability to profit from the regular curriculum, the nonacademic benefits such as social interaction, and the impact on the regular education student in the class. In determining the appropriateness of the placement, teachers need not devote all or the majority of their time to the child with a disability or modify beyond recognition the regular curriculum to provide for the one child with a disability. The Fourth, Sixth, and Eighth Circuits have applied the test enunciated in Roncker v. Walter. 151 The Roncker court recognized the strong congressional preference for mainstreaming, but pointed out that it is not required in every case. For a child not to be mainstreamed, the Roncker test requires that the school show that a segregated facility would offer superior educational services. It cannot be assumed ipso facto that a segregated education is superior merely because it is more costly or because it is separate.152 If a separate facility is considered to be superior to mainstreaming, it must be determined exactly why it is better and whether it is possible for the
same services to be offered in a nonsegregated mainstream setting. If such additional and commensurate services can be offered in the regular classroom, then a separate and segregated placement is inappropriate. If, though, the “marginal benefits received from mainstreaming are far outweighed by the benefits gained from services which could not be feasibly provided in the non-segregated setting,” then the courts will hold that mainstreaming is not the appropriate placement. 153 The Daniel R. R. court stated, “[T]he factors that we consider today do not constitute an exhaustive list of factors relevant to the mainstreaming issue. Moreover, no single factor is depositive in all cases. Rather, our analysis is an individualized, fact-specific inquiry that requires us to examine carefully the nature and severity of the child’s handicapping condition, his needs and abilities, and the schools’ response to the child’s needs.”154 The Ninth Circuit, in the case of Rachel H., combined elements from the Daniel R. R. and Roncker cases to determine whether a child should be mainstreamed. This four-factor analysis considered (1) the educational benefits of full-time placement in a regular class, (2) the nonacademic benefits of the placement, (3) the effect the student had on the teacher and other children in the class, and (4) the cost of mainstreaming the student with a disability.155 The Rachel H. court used cost as a factor, asking whether the cost was reasonable in relation to the progress of the child with a disability. Several courts have ruled that “[c]ost is a proper factor to consider since excessive spending on one handicapped child deprives other handicapped children.”156 What constitutes the least-restrictive environment is yet so uncertain that litigation continues to proliferate. The courts have generally held that where disputes arise over appropriate educational methodology, the courts will defer to the judgment of school officials: “The primary responsibility for formulating the education to be accorded a handicapped child, and for choosing the educational program most suitable to the child’s needs, was left by the Act to state and local educational agencies in cooperation with the parents or guardians of the child and is determined by the fact-specific inquiry required by each case. The severity of the child’s disability,
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Least-Restrictive Environment
his needs and abilities, and the school response are all important elements.”157 As to whether the parents’ choice will prevail over the school’s, the court in Lachman concluded that parental discretion in the matter of placement must defer to the judgment of the professional educators of the public school district. This court said, “[P]arents, no matter how well-motivated, do not have a right under EAHCA (IDEA) to compel a school district to provide a specific program or employ a specific methodology in providing for education of their handicapped child.”158
LEAST-RESTRICTIVE ENVIRONMENT Factors relevant to determining whether placement is appropriate include: 1) The educational benefits available to a child in a regular classroom, supplemental with appropriate aids and services, compared with the educational benefits of a special education classroom; 2) the nonacademic benefits to a disabled child from interaction with nondisabled children; 3) the effect of the presence of a disabled child on a teacher and other children in the regular classroom; and 4) the costs of supplementary aids and services necessary to mainstream the disabled child in a regular classroom setting. 67B Am.Jur.2d Schools § 409. See also: J. W. ex rel J. E. W. v. Fresno Unified School District, 611 F. Supp. 2d 1097 (E.D. Cal. 2009).
INCLUSION The terms inclusion, full inclusion, and integrated services are not found in Public Law 94-142 (EAHCA, 1975), Public Law 101-476 (IDEA, 1990), or their implementing regulations. The inclusion movement came out of the U.S. Department of Education in the early 1980s under the “regular education initiative.” Regular education advocates criticized the system of special and regular education because special-needs children were not being placed in regular education frequently enough. Although not defined in the statute or regulation, these terms are now being used by the courts when addressing the child’s least-restrictive environment.159 In Mavis v. Sobol, the court stated, “[I]n recent years use of the term mainstreaming has not been favored by some educators, and instead
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use of the term ‘inclusion’ is now preferred in some educational circles. Despite that, the court will continue to use the term mainstreaming in this case.”160 In Oberti, the court also preferred to use “mainstreaming” rather than “inclusion.” The court said: Integrating children with disabilities in regular classrooms is commonly known as “mainstreaming.” The Obertis [parents] point out that some educators and public school authorities have come to disfavor use of the term “mainstreaming” because it suggests, in their view, the shuttling of a child with disabilities in and out of a regular classroom without altering the classroom to accommodate the child. They prefer the term “inclusion” because of its great emphasis on the use of supplementary aids and support services within the regular classroom to facilitate inclusion of children with disabilities. While “inclusion” may be a more precise term, we will nonetheless use the term “mainstreaming” because it is currently the common parlance. Moreover, . . . “mainstreaming” as required under IDEA does not mean simply the placement of a child with disabilities in a regular classroom or school program.161
Even though the terminology continues to evolve, there appears to be sustaining general agreement that children with disabilities should be placed in regular classrooms whenever possible. Implementation of mainstreaming is probably best defined by the Oberti factors. The Oberti court identified a three-part test to be used to determine the appropriateness of mainstreaming or other special education placement. The three Oberti factors are: (1) reasonable efforts to accommodate the child in a regular classroom; (2) comparison of benefits in a regular classroom with supplementary aids and services to benefits in a special education classroom; and (3) possible negative effects of inclusion with other students in the regular class. In weighing these factors, a federal district court in Connecticut concluded that the inclusion in a regular classroom of a ninth-grade student with multiple disabilities was an appropriate placement. The congressional desire for children with disabilities to attend school in the regular classroom is given substantial new support in the 1997 amendments. The statutory language now requires that the IEP include “an explanation of the extent, if any, to which the child
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will not participate with non-disabled children in the regular class. . . .”162 This is different from the earlier IDEA regulations, which required the child’s IEP to state “the extent that the child will be able to participate in regular educational programs.”163 This change effectively shifts the burden to the school district to show why the special-needs student should not participate in a regular classroom, not why he or she should. Implicit in this placement objective is the overriding and most important concern that all children benefit from the socialization processes that are inherent in being educated with one’s peers. It is this attribute of commonality and neutral participation, so important to the learning process, that advances the time-honored idea of public schools—all should attend school in common, rubbing shoulders with typically developing students as well as students with disabilities—and that best expresses the abiding spirit of public education.
School District Placement of Student with a Disability in Special Education with Reverse Mainstreaming Opportunities Meets Least-Restrictive Environment Provision
Beth v. Van Clay United States Court of Appeals, Seventh Circuit, 2002. 282 F.3d 493, cert. denied 537 U.S. 948, 123 S. Ct. 412 (2002).
FLAUM, Chief Judge. Thirteen-year-old Beth B. and her parents appeal the district court’s grant of summary judgment to the Lake Bluff School District, affirming an administrative decision that upheld the school district’s recommendation to place Beth in a special education classroom. [Van Clay is the school superintendent.] Beth is severely mentally and physically challenged. Her parents have long been fighting a battle to keep her in the regular education classroom: In 1997, the school district first recommended that Beth continue her
schooling in a special education, or Educational Life Skills (“ELS”), program—a placement with which her parents disagreed. When it became clear that they and the district could not reach a mutually satisfactory solution, they requested a due process hearing under § 1415(f) of the Individuals with Disabilities Education Act (“IDEA,” or “the Act”), 20 U.S.C. § 1400 et seq. The hearing commenced on October 25, 1999; in May 2000, the hearing officer ruled in favor of the school district. Beth’s parents sought review in the district court and, on September 10, 2001, the court affirmed the hearing officer’s conclusion, granting Lake Bluff’s motion for summary judgment. Beth and her parents now appeal to us. We recognize the difficult decisions that Beth’s parents face, and we appreciate the care and commitment with which they participate in their daughter’s education. However, after looking to the language of the IDEA and the congressional intent behind it, we conclude that the school district’s placement does not violate the Act. For the reasons stated herein, we affirm the decision of the district court. Beth has Rett Syndrome, a neurological disorder that almost exclusively affects girls. It results in severe disabilities, both cognitive and physical. Beth is nonverbal; she uses an instrument called an eye gaze, a board with various pictures and symbols that she singles out with eye contact, to communicate her wants and needs, as well as other communication devices that allow her to choose among symbols or to hear messages recorded by others. She relies on a wheelchair for mobility. She, like nearly all Rett sufferers, has an extreme lack of control over body movement. Although her mental capacity is difficult to assess precisely, due to her extreme communicative and motor impairments, some experts contend that she has the cognitive ability of a twelve-to-eighteen-month-old infant. Others estimate that she has the ability of a fourto-six-year-old. She is unable to read or recognize numbers. Beth has been educated in regular classrooms at her neighborhood public school for seven years. She is currently in the seventh grade at Lake Bluff Middle School with other thirteen-year-old children. Students in the seventh grade attend six 42-minute classes a day. They have three-minute passing periods
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Least-Restrictive Environment
between classes. Beth’s aides help her travel from room to room during the passing periods, although it is extremely difficult for her to do so in such a short time frame. Since the first grade, Beth has worked with a one-on-one aide at all times and has used an individualized curriculum tied in subject matter, as much as possible, to that of the other students in the class. Beth’s current curriculum is geared toward someone at a preschool level. When her peers worked on mathematics, she was exposed to various numbers. When the class studied meteorology and weather patterns, she looked at pictures of clouds. Beth cannot participate in class discussions or lectures. The school district held an annual conference with Beth’s parents, teachers, and district administrators to review Beth’s individualized education program (“IEP”). After her second grade year, the school district recommended at her IEP meeting that Beth be placed in an ELS setting. No appropriate special education environment exists in the Lake Bluff District; Beth would have to attend school in a neighboring school district. . . . The ELS program recommended by the district would be located in a public school building and would serve students between the ages of six and twenty one with mild, moderate, or severe handicaps. Generally, six to eight students comprise one ELS classroom, and the student-teacher ratio is oneto-one. ELS students in the program are mainstreamed into regular education classrooms during music, library, art, computer, and certain social studies and science classes, and join other students at the school during lunch, recess, assemblies, and field trips. Additionally, reverse mainstreaming is employed; that is, regular education students come into the ELS classroom to allow for interaction between ELS and non ELS students. Beth’s parents disagreed with Beth’s placement in an ELS program, requested a due process review under the IDEA, and invoked the Act’s stay-put provision, which has allowed Beth to remain in the regular classroom at her neighborhood school pending the resolution of this litigation. 20 U.S.C. § 1415(j). Beth’s parents argue that the school district’s placement of Beth in an ELS classroom violates the IDEA. . . . The district court erred,
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they contend, in upholding the administrative decision finding otherwise. Although we review the school board’s ultimate decision de novo because it is a mixed question of law and fact, we will reverse only if the district court’s findings were clearly erroneous, absent a mistake of law. . . . We find as an initial matter that the district court gave proper weight to the findings of the hearing officer at the administrative proceedings. . . . We also find that the hearing officer did not err as a matter of law in failing to consider whether the ELS placement was the leastrestrictive environment; . . . he did consider whether it was the least-restrictive appropriate environment, that is, whether Beth would be mainstreamed to the maximum extent appropriate—the proper question under the LRE analysis discussed below. The district court, therefore, did not err in giving deference to the administrative decision after independently evaluating the evidence and even, in this case, updating it with an evidentiary hearing. The IDEA, enacted in 1975 as The Education of All Handicapped Children’s Act, entitles all children with disabilities to access to public education. Pub. L. No. 94-142, 89 Stat. 773 (1975). . . . A school district must provide such children with a free appropriate public education (“FAPE”), 20 U.S.C. § 1412(a)(1), together, to the maximum extent appropriate, with nondisabled children (“least-restrictive environment” or “LRE”). 20 U.S.C. § 1412(a)(5). . . . The LRE requirement shows Congress’s strong preference in favor of mainstreaming, . . . but does not require, or even suggest, doing so when the regular classroom setting provides an unsatisfactory education. . . . The core of this dispute involves whether the school district’s decision to place Beth in an ELS classroom violates the LRE provision of the IDEA. Under this clause, the district must mainstream Beth—that is, provide her an education with her nondisabled peers—to the “greatest extent appropriate.” 20 U.S.C. § 1412(5). Again, Congress used the modifier “appropriate” in stating the requirements of the Act, limiting its mainstreaming mandate. The regular class room would be a less-restrictive environment than the ELS classroom. That point is not at issue, however, because the Lake Bluff school
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district is not required to educate Beth in such an environment unless doing so would be appropriate. The Supreme Court, although it has not yet interpreted the language of the LRE provision, has stated that “[t]he Act’s use of the word ‘appropriate’ thus seems to reflect Congress’ recognition that some settings simply are not suitable environments for the participation of some handicapped children.” Rowley, 458 U.S. at 197 n. 21, 102 S. Ct. 3034. This case turns, then, on whether educating Beth in the regular classroom (or, more appropriately in the middle school setting, classrooms) would be appropriate. The relevant IDEA regulation provides that children may not be removed from the regular classroom unless their education there, with the use of supplementary aids and services, cannot be achieved satisfactorily. 34 C.F.R. § 300.550(b)(2). This preference for mainstreaming demands a hard look and a careful analysis of the education Beth was receiving at Lake Bluff Middle School. Beth’s parents rely on misplaced language from Rowley to argue that so long as she was receiving any benefit— improvement in eye contact, or progress in responding to a request to “look” or “touch”— her removal would violate the LRE requirement. We cannot agree with this definition of satisfactory education. Rowley requires, in its analysis of the FAPE provision, “that the education to which access is provided be sufficient to confer some educational benefit upon the handicapped child.” . . . The Court’s rationale behind using this standard was “to leave the selection of educational policy and methods where they traditionally have resided—with state and local school officials.” . . . The standard is intended to give school districts “flexibility in educational planning.” . . . By applying it to the LRE directive and arguing that the school district cannot remove Beth from the regular classroom if she receives any benefit there, Beth’s parents turn the “some educational benefit” language on its head. Instead of granting flexibility to educators and school officials, it places an extreme restriction on their policy-making authority and the deference they are owed; it essentially vitiates school districts’ authority to place any disabled children in separate special education environments. Neither
Congress nor the Supreme Court intended such a result. . . . (“Congress recognized that regular classrooms simply would not be a suitable setting for the education of many handicapped children.”) Each student’s educational situation is unique. We find it unnecessary at this point in time to adopt a formal test for district courts uniformly to apply when deciding LRE cases. The Act itself provides enough of a framework for our discussion; if Beth’s education at Lake Bluff Middle School was satisfactory, the school district would be in violation of the Act by removing her. If not, if its recommended placement will mainstream her to the maximum appropriate extent, no violation occurs. In this case we can say with confidence that the Lake Bluff school district’s decision to remove Beth from her regular school did not violate the IDEA’s mandate to mainstream disabled children to the maximum extent appropriate. Beth was in class for about 50% of each day. Her academic progress was virtually nonexistent and her developmental progress was limited. Although the school district provided her with aides, communication devices, computerized books, and an individual curriculum, she was receiving very little benefit from her time there. We agree with the school district’s decision that a modicum of developmental achievement does not constitute a satisfactory education. The ELS classroom, so long as it includes reverse mainstreaming opportunities, as well as time spent with nondisabled peers in nonacademic classes, during special projects, lunch, and the like, is at an acceptable point along the “continuum of services” between total integration and complete segregation, and satisfies the requirement that Beth be mainstreamed to the maximum extent appropriate. 34 C.F.R. § 300.551; 20 U.S.C. § 1412(5). The school officials’ decision about how to best educate Beth is based on expertise that we cannot match. They relied on years of evidence that Beth was not receiving a satisfactory education in the regular classroom. The placement shows a concern both for her development and for keeping her mainstreamed, to an appropriate extent, with her nondisabled peers. We cannot hold that the Lake Bluff School District has failed to provide her with the free appropriate public education
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Least-Restrictive Environment
where she is mainstreamed to the maximum extent appropriate, to which she is entitled under the IDEA. Although we respect the input Beth’s parents have given regarding her placement and their continued participation in IEP decision-making, educators “have the power to provide handicapped children with an education they consider more appropriate than that proposed by the parents.” Lachman v. Illinois State. Bd. of Educ., 852 F.2d 290, 297 (7th Cir. 1988). We find that the district’s proposed IEP, which includes reverse mainstreaming and provides that Beth will take part in certain regular education classes, does not violate the statutory LRE mandate. For the reasons stated herein, we find that the school district’s recommendation to place Beth in an ELS classroom does not violate the IDEA. We AFFIRM the decision of the district court.
CASE NOTES 1. Time Spent in Mainstream. Partial inclusion can potentially involve disputes between parents and the school district over time spent in a regular classroom. In dealing with a dispute over percentages of time for inclusion, the U.S. Court of Appeals, Second Circuit, 2008, ruled that the IEP should be based on substantive educational considerations, not whether the parents for undocumented reasons wanted the child to be mainstreamed initially at 80 percent of the time rather than 60 percent. P. v. Newington Board of Education, 546 F.3d 111 (2nd Cir. 2008). 2. Neighborhood School Choice. IDEA regulations indicate that a child with a disability should be educated in the neighborhood school that he or she would attend if not disabled, except when the goals of the child’s IEP require a special education placement not available at that school. In a situation when placement elsewhere is required, the geographic proximity of school that offers that placement to the child’s home should be considered. Individuals with Disabilities Education Act, 20 U.S.C. Sections 1400-1485; 34 C.F.R. Sections 300.552(a)(3) and (c). 3. However, the school district has the authority to decide which school in the school district will provide the special education services. The IDEA does not recognize a right of the parent to choose which neighborhood school
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the child will attend. White v. Ascension Parish School Board, 343 F.3d 373 (5th Cir. 2003). 4. The school district has final authority to select the school site as long as it is educationally appropriate. The Office of Special Education Programs, Department of Education branch charged with monitoring and enforcing the IDEA and the implementing regulations has explained: [I]f a public agency . . . has two or more equally appropriate locations that meet the child’s special education and related services needs the assignments of a particular school . . . may be an administrative determination, provided that the determinations is a consistent with the placement team’s decision.
Letter from Office of Special Education Programs to Paul Veazey (26 Nov. 2001). See also, Letter to Anonymous, 21 IDELR 674 (Office of Special Education Programs 1994) (it is permissible for the school district to transfer a student with a disability to a school other than the school closest to home if the transfer school continues to be appropriate to meet the individual needs of the student). 5. The U.S. Court of Appeals, Fifth Circuit, has cited the following cases that held that the IDEA does not create a right of parents to select a particular school in the school district to fulfill the IEP for a child: McLaughlin v. Holt Public School Board of Education, 320 F.3d 663, 672 (6th Cir. 2003) (LRE provisions and regulations do not mandate placement in neighborhood school); Kevin G. ex rel. Robert G. v. Cranston School Committee, 130 F.3d 481, 482 (1st Cir. 1997) (“[W]hile it may be preferable for Kevin G. to attend a school located minutes from his home, placement [where a full-time nurse is located] satisfies [the IDEA]. . . . The school district has an obligation to provide a school placement which includes a nurse on duty full time, but it is not required to change the district’s placement of nurses, when, as in this case, care is readily available at another easily accessible school”); Hudson v. Bloomfield Hills Public School, 108 F.3d 112 (6th Cir. 1997) (the IDEA does not require placement in the neighborhood school); Urban v. Jefferson County School Dist. R-1, 89 F.3d 720 (10th Cir. 1996) (IDEA does not give a student the right
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to placement at a neighborhood school); Murray v. Montrose County School Dist., 51 F.3d 921 (10th Cir. 1995), cert. denied, 516 U.S. 909, 116 S. Ct. 278 (1995) (there is no presumption in the IDEA that a child must attend neighborhood school—proximity to home only one factor); Schuldt ex rel. Schuldt v. Mankato Independent School District No. 77, 937 F.2d 1357 (8th Cir. 1991) (the school may place a student in nonneighborhood school rather than require physical modification of the neighborhood school to accommodate the child’s disability); Barnett v. Fairfax County School Board, 927 F.2d 146 (4th Cir. 1991), cert. denied, 502 U.S. 859, 112 S. Ct. 175 (1991) (a school district complies with the IDEA by providing deaf student with “cued speech” program in a centralized school approximately five miles farther than neighborhood school); Wilson v. Marana Unified School District No 6 of Pima County, 735 F.2d 1178 (9th Cir. 1984) (a school district may assign a child to school 30 minutes away because a teacher certified in the child’s disability was assigned to that school, rather than move the service to the closer neighborhood school).
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Placement in Private Schools
The IDEA and its accompanying regulation address the issue of special education services provided to children in private schools. The statute requires that each state plan set forth policies and procedures regarding children with disabilities in private schools. The state must ensure the following: That, to the extent consistent with the number and location of children with disabilities in the state who are enrolled in private elementary and secondary schools, provision is made for participation of such children in the program assisted or carried out under this subchapter by providing for such children special education and related services.164
The IDEA regulation requires the local educational agency to “provide special education and related services designed to meet the needs of private school children with disabilities residing in the jurisdiction of the agency.” 165
The local school district must provide a genuine opportunity for equitable participation in the program. The local school district has discretion in determining the participation, but such must be related to the number of eligible private school students. The regulation also specifies that service to private schools, although not required to be equal, should be comparable. The federal statute refers to three categories of students with disabilities, two of which relate to private schools. The three categories are (1) children with disabilities attending public schools, (2) children with disabilities attending approved private schools in accordance with an IEP developed by the public schools, and (3) children with disabilities attending private schools voluntarily. Of course, those attending public schools must receive a FAPE. The second category refers to those children with disabilities placed in private schools following the appropriate IEP determination. These children are in private school programs specifically designed to meet their educational needs. The private facilities where these children are placed must be state approved, and the state must pay the cost. The third category is made up of those students who are voluntarily placed in private schools. The law requires only that provision be made for participation for such children in the local special education programs. The participation should be “to the extent consistent with the number and location of children with disabilities.” Congress intended to differentiate between public and private but also intended to distinguish between those children placed in private school by the local educational agency and those children whose parents voluntarily enrolled them in private schools. Children who are voluntarily enrolled in private schools have “a lesser entitlement”166 than children in the other two categories. Although the state is responsible for providing “genuine opportunities” for children voluntarily placed in private schools, these opportunities are not as extensive as those of public schoolchildren.
THE BURLINGTON TEST The U.S. Supreme Court in 1985 in the case of School Committee of Town of Burlington v. Department of Education, Massachusetts167 held that the
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Placement in Private Schools
language in the IDEA authorizes federal courts to “grant such relief as the court determines is appropriate,”168 and, therefore, a court has the power to order school authorities to reimburse parents for expenditures on private special education if the court finds that the public school district’s IEP is inappropriate. The Supreme Court in Burlington established a two-part test that the lower federal court should apply to determine whether the parents are entitled to reimbursement from the public school: (1) whether the school district’s placement pursuant to its IEP is inappropriate and (2) whether the private placement desired by the parents is appropriate. The Burlington test was used by the U.S. Court of Appeals, Second Circuit, 169 in holding that parents are entitled to reimbursement where a school district erroneously attributes a child’s learning difficulties to a “mere conduct disorder” rather than the appropriate diagnosis of a “serious emotional disorder.” Later, in 1993, the U.S. Supreme Court in Florence County School District v. Carter170 used the Burlington rationale and concluded that if a court finds the educational placement in the public school to be inappropriate, then the public school can be ordered by the court to reimburse the parents for costs. In the Florence County case, the educational authorities found that the IEP developed for a child was adequate, but the parents disagreed and enrolled the child in a private academy. Later, the parents filed suit, seeking reimbursement for tuition and other costs. The district court ruled that the public school’s proposed IEP and educational goals “were wholly inadequate” and failed to meet the IDEA requirements. The Supreme Court stated: This case presents the question whether a court may order reimbursement for parents who unilaterally withdraw their child from a public school that provides an inappropriate education under IDEA and put the child in a private school that provides an education that is otherwise proper under IDEA. . . . We hold that the court may order such reimbursement, and therefore affirm the judgment of the Court of Appeals.171
With cognizance of the Florence County case, Congress more clearly enunciated in the 1997 amendments what parents must do when they
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place a child in a private setting if they are to be reimbursed. The failure of parents to adhere to the following requirements may result in the reimbursement being reduced or denied if (1) the parents did not inform the school district at the most recent IEP meeting that they were rejecting the child’s IEP, (2) the parents did not inform the school district that they intended to place the child in a private setting at public expense, (3) the parents did not give written notice of the impending removal 10 business days prior to the actual removal, (4) the parents refused to make the child available for a sought after evaluation by the school district, or (5) a court finds that the parents acted unreasonably.172 The first three items are designed to give courts guidance in constraining unilateral parental action that deprives the school district of the opportunity to attempt to resolve the disagreement before the parent arbitrarily removes the student from the public school setting.173 The last two items indicate arbitrary action on the part of the parents, for which federal courts have denied reimbursement to the parents.174 In following statutory requirements of IDEA enunciated by Congress, the U.S. Court of Appeals, First Circuit, 2004, in Greenland 175 held that parents of a learning disabled child, who unilaterally placed their child in a private school without notice to the local school district of their child’s special education needs and without offering the district an opportunity to prepare an IEP and provide a program, could not receive tuition reimbursement. However, where a parent does notify the school district and the district provides an IEP and places the child in a program that the parent believes to be educationally deficient, the court may enter its educational judgment by comparing the public school special education program with that of a private school and then deciding which is better. The U.S. Court of Appeals, Second Circuit, rendered such a decision in 2006 in the case of Frank G. v. Board of Education of Hyde Park, and in so doing enunciated the prevailing rule that the courts may weigh instructional opportunities of the two programs and decide, by a “preponderance” of evidence, which is better.176 In comparing the programs, this court found that when an out-of-state private school offered a smaller class size, more one-on-one instruction, extra time
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to complete work, assistance from a volunteer teacher’s assistant, standardized tests showed higher performance, and the student achieved social and academic progress, the parents were awarded reimbursement. The federal court noted that the parents had notified the public school of the student’s needs, the public school had evaluated the student and provided an IEP that the parents deemed inappropriate, and at a hearing requested by the parents, the school district conceded that it had failed to provide the free appropriate public education required by the IDEA.177 In 2008, the U.S. Court of Appeals, Ninth Circuit, in Forest Grove School District v. T.A.,178 followed the lead of the Second Circuit in Frank G. and further explicated the intent of the 1997 Amendments. The legal question in the Forest Grove case was whether the 1997 law prohibited tuition reimbursement to parents who enrolled their son in a private school even though the child had attended a public school but had never been enrolled in a public school special education program. The facts in this case were extraordinary in that the boy had been enrolled as a public school student from kindergarten to the eleventh grade and the school district had failed to classify him as disabled. School district specialists had earlier evaluated T.A. and concluded that he was not disabled, and T.A.’s mother attended the meeting and agreed that T.A. was not disabled. Later, the parents hired a psychologist who diagnosed T.A. with having ADHD, depression, and cannabis abuse. It was after this evaluation that T.A. was enrolled in a private school from which he graduated. Subsequently, T.A.’s parents hired a lawyer, a hearing ensued, and the hearing officer concluded that T.A. was disabled and the officer required the school district to reimburse T.A.’s parents for the private school tuition. The school district appealed the hearing officer’s determination to a federal district court and the case ended up before the Ninth Circuit that held for the parents. The Ninth Circuit distilled the essence of the issue to whether the 1997 Amendments had categorically revoked private school reimbursement for students who had never received special education and related services from a public agency, or “Did Congress simply legislate concerning students who had previously received
special education and related services”? In answer, the Ninth Circuit cited and quoted the Frank G. court, concluding that the 1997 Amendments did not bar recovery to parents of private school reimbursement who did not previously receive special education and related services in the public school.179 The bottom line is that the 1997 Amendments were not precisely clear and the court extended the coverage of tuition reimbursement to parents for children who have not “previously received special education and related services” in a public school. As to the application of the facts of a particular situation, the courts will decide.
Court May Order School District to Reimburse Parents Who Unilaterally Placed Child in Private School
Florence County School District Four v. Carter Supreme Court of the United States, 1993. 510 U.S. 7, 114 S. Ct. 361.
Justice O’CONNOR delivered the opinion of the Court. The Individuals with Disabilities Education Act (IDEA) . . . requires States to provide disabled children with a “free appropriate public education.” . . . This case presents the question whether a court may order reimbursement for parents who unilaterally withdraw their child from a public school that provides an inappropriate education under IDEA and put the child in a private school that provides an education that is otherwise proper under IDEA, but does not meet all the requirements of § 1401(a)(18). We hold that the court may order such reimbursement, and therefore affirm the judgment of the Court of Appeals. Respondent Shannon Carter was classified as learning disabled in 1985, while a ninth grade student in a school operated by petitioner Florence County School District Four. School officials met with Shannon’s parents to formulate an individualized education program (IEP) for Shannon, as required under IDEA. . . . The IEP provided that Shannon
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Placement in Private Schools
would stay in regular classes except for three periods of individualized instruction per week, and established specific goals in reading and mathematics of four months’ progress for the entire school year. Shannon’s parents were dissatisfied, and requested a hearing to challenge the appropriateness of the IEP. . . . Both the local educational officer and the state educational agency hearing officer rejected Shannon’s parents’ claim and concluded that the IEP was adequate. In the meantime, Shannon’s parents had placed her in Trident Academy, a private school specializing in educating children with disabilities. Shannon began at Trident in September 1985 and graduated in the spring of 1988. Shannon’s parents filed this suit in July 1986, claiming that the school district had breached its duty under IDEA to provide Shannon with a “free appropriate public education,” . . . and seeking reimbursement for tuition and other costs incurred at Trident. After a bench trial, the District Court ruled in the parents’ favor. The court held that the school district’s proposed educational program and the achievement goals of the IEP “were wholly inadequate” and failed to satisfy the requirements of the Act. . . . The court further held that “[a]lthough [Trident Academy] did not comply with all of the procedures outlined in [IDEA],” the school “provided Shannon an excellent education in substantial compliance with all the substantive requirements” of the statute. . . . The court found that Trident “evaluated Shannon quarterly, not yearly as mandated in [IDEA], it provided Shannon with low teacher-student ratios, and it developed a plan which allowed Shannon to receive passing marks and progress from grade to grade.” . . . The court also credited the findings of its own expert, who determined that Shannon had made “significant progress” at Trident and that her reading comprehension had risen three grade levels in her three years at the school. . . . The District Court concluded that Shannon’s education was “appropriate” under IDEA, and that Shannon’s parents were entitled to reimbursement of tuition and other costs. . . . The Court of Appeals for the Fourth Circuit affirmed. . . . . . . We granted certiorari. . . .
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In School Comm. of Burlington v. Department of Ed. of Mass., . . . we held that IDEA’s grant of equitable authority empowers a court “to order school authorities to reimburse parents for their expenditures on private special education for a child if the court ultimately determines that such placement, rather than a proposed IEP, is proper under the Act.” Congress intended that IDEA’s promise of a “free appropriate public education” for disabled children would normally be met by an IEP’s provision for education in the regular public schools or in private schools chosen jointly by school officials and parents. In cases where cooperation fails, however, “parents who disagree with the proposed IEP are faced with a choice: go along with the IEP to the detriment of their child if it turns out to be inappropriate or pay for what they consider to be the appropriate placement.” . . . For parents willing and able to make the latter choice, “it would be an empty victory to have a court tell them several years later that they were right but that these expenditures could not in a proper case be reimbursed by the school officials.” . . . Because such a result would be contrary to IDEA’s guarantee of a “free appropriate public education,” we held that “Congress meant to include retroactive reimbursement to parents as an available remedy in a proper case.” . . . As this case comes to us, two issues are settled: (1) the school district’s proposed IEP was inappropriate under IDEA, and (2) although Trident did not meet the § 1401(a)(18) requirements, it provided an education otherwise proper under IDEA. This case presents the narrow question whether Shannon’s parents are barred from reimbursement because the private school in which Shannon enrolled did not meet the § 1401(a)(18) definition of a “free appropriate public education.”* We hold that they are not, because § 1401(a)(18)’s requirements cannot be read as applying to parental placements. Section 1401(a)(18)(A) requires that the education be “provided at public expense, under public supervision and direction.” Similarly, § 1401(a)(18)(D) requires schools to provide an IEP, which must be designed by “a representative of the local educational agency,” . . . and must be “establish[ed],” “revise[d],” and “review[ed]” by the agency. . . . These requirements do not make sense in the context of a
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parental placement. In this case, as in all Burlington reimbursement cases, the parents’ rejection of the school district’s proposed IEP is the very reason for the parents’ decision to put their child in a private school. In such cases, where the private placement has necessarily been made over the school district’s objection, the private school education will not be under “public supervision and direction.” Accordingly, to read the § 1401(a) (18) requirements as applying to parental placements would effectively eliminate the right of unilateral withdrawal recognized in Burlington. Moreover, IDEA was intended to ensure that children with disabilities receive an education that is both appropriate and free. . . . To read the provisions of § 1401(a)(18) to bar reimbursement in the circumstances of this case would defeat this statutory purpose. Nor do we believe that reimbursement is necessarily barred by a private school’s failure to meet state education standards. Trident’s deficiencies, according to the school district, were that it employed at least two faculty members who were not state-certified and that it did not develop IEPs. As we have noted, however, the § 1401(a)(18) requirements—including the requirement that the school meet the standards of the state educational agency, § 1401(a)(18)(B)— do not apply to private parental placements. Indeed, the school district’s emphasis on state standards is somewhat ironic. As the Court of Appeals noted, “it hardly seems consistent with the Act’s goals to forbid parents from educating their child at a school that provides an appropriate education simply because that school lacks the stamp of approval of the same public school system that failed to meet the child’s needs in the first place.” . . . Furthermore, although the absence of an approved list of private schools is not essential to our holding, we note that parents in the position of Shannon’s have no way of knowing at the time they select a private school whether the school meets state standards. South Carolina keeps no publicly available list of approved private schools, but instead approves private school placements on a case-by-case basis. In fact, although public school officials had previously placed three children with disabilities at Trident, . . . Trident had not received blanket
approval from the State. South Carolina’s caseby-case approval system meant that Shannon’s parents needed the cooperation of state officials before they could know whether Trident was state-approved. As we recognized in Burlington, such cooperation is unlikely in cases where the school officials disagree with the need for the private placement. . . . The school district also claims that allowing reimbursement for parents such as Shannon’s puts an unreasonable burden on financially strapped local educational authorities. The school district argues that requiring parents to choose a state-approved private school if they want reimbursement is the only meaningful way to allow States to control costs; otherwise, States will have to reimburse dissatisfied parents for any private school that provides an education that is proper under the Act, no matter how expensive it may be. There is no doubt that Congress has imposed a significant financial burden on States and school districts that participate in IDEA. Yet public educational authorities who want to avoid reimbursing parents for the private education of a disabled child can do one of two things: give the child a free appropriate public education in a public setting, or place the child in an appropriate private setting of the State’s choice. This is IDEA’s mandate, and school officials who conform to it need not worry about reimbursement claims. Moreover, parents who, like Shannon’s, “unilaterally change their child’s placement during the pendency of review proceedings, without the consent of the state or local school officials, do so at their own financial risk.” . . . They are entitled to reimbursement only if a federal court concludes both that the public placement violated IDEA, and that the private school placement was proper under the Act. . . . Accordingly, we affirm the judgment of the Court of Appeals. So ordered.
CASE NOTES 1. A private school’s failure to comply with the state’s licensure requirements or the state’s educational standards has been held not to bar tuition reimbursement to parents under the IDEA where a hearing panel found
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Placement in Private Schools
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the private school to be a proper placement. Warren G. v. Cumberland County School District, 190 F. 3d 80 (3d Cir. 1999). The cost of reimbursement was found appropriate for parents who placed their child with Down Syndrome in a private preschool where the public school was not shown to comport with the IDEA. Board of Education of LaGrange School District No. 105 v. Illinois 184 F. 3d 912 (7th Cir. 1999). The U.S. Court of Appeals, Fifth Circuit, has followed the Burlington test in holding that reimbursement for a special-needs child’s cost in attending private school may be ordered by the courts only if the parents or guardians establish that both prongs of the test have been met. If the reviewing court concludes that the first prong is satisfied, that the school district’s IEP is appropriate, it need not reach the second prong, the appropriateness of the private school placement by parents. CypressFairbanks Independent School District v. Michael, 118 F. 3d 245 (5th Cir. 1997). A school district is not required by the IDEA to “maximize a student’s potential” or provide the “best possible education.” The statute requires only that the public school provide sufficient specialized services in order for the student to benefit from the education. Fort Zumwalt School District v. Clynes, 119 F. 3d 607 (8th Cir. 1997). Parents are not entitled to reimbursement for the time that a child is placed in a private school without permission of public school district if it is ultimately determined that the proposed IEP met IDEA requirements. Fort Zumwalt School District v. Clynes, 119 F. 3d 607 (8th Cir. 1997). Where parents unilaterally enrolled a child in a private school before an IEP was developed by the school district and then sought to compel the district to pay for the costs, the court ruled for the school district, saying that “case law is clear that [parents] are not entitled to dictate educational methodology or to compel a school district to supply a specific program for their disabled child.” Tucker v. Calloway County Board of Education, 136 F. 3d 495 (6th Cir. 1998). The U.S. Court of Appeals, Fifth Circuit, ruled in a summary judgment for the school district
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where the school district denied compensatory education funding under IDEA to a 20-year-old disabled student on the basis that the private school program in which the student was enrolled, and paid for by the public school, produced social and emotional gains for the student. Lauren W. v. DeFlaminis, 480 F. 3d 259 (5th Cir. 2007).
CHILDREN WITH DISABILITIES IN SECTARIAN SCHOOLS Another issue regarding the use of public funds for education of special-needs children is whether public funding can be used for their education in religious schools. In Zobrest v. Catalina Foothills School District, 180 the U.S. Supreme Court ruled that a public school district does not violate the Establishment Clause of the First Amendment by paying for a signlanguage interpreter to accompany a student to classes at a Roman Catholic high school. In Zobrest, the student was provided an interpreter while enrolled in a public school, and then, when he enrolled of his own volition in sectarian schools, he requested the same services. The public school board refused to pay for the interpreter on the grounds that such assistance constituted aid to religion. The Supreme Court held that: the Establishment Clause does not prevent [the school board] from furnishing a disabled child enrolled in a sectarian school with a sign-language interpreter in order to facilitate his education. Government programs that neutrally provide benefits to a broad class of citizens defined without reference to religion are not readily subject to an Establishment Clause challenge just because sectarian institutions may also receive an attenuated financial benefit.181
Zobrest is discussed more fully in Chapter 5 of this book. Although the Supreme Court ruled that a school board may pay for services in a sectarian school, it did not rule that the school board is required to pay for these services. As observed above, the 1997 Amendments to IDEA materially affected the obligations of public schools to pay private school tuition, whether the private schools are sectarian or nondenominational. We have no direct U.S. Supreme Court case on point to provide guidance after 1997; however,
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we do know, as the Establishment Clause cases in Chapter 5 indicate, today’s Supreme Court has what it calls its “new jurisprudence” that is highly favorable to public funding of parochial and religious schools. However, lower federal courts have conveyed their opinions as to the effect of the 1997 amendment on parental placement of children in parochial schools. In Foley v. Special School District of St. Louis County, (see case below), the U.S. Court of Appeals, Eighth Circuit, concluded that the 1997 Amendments clearly preclude tuition reimbursement of parents who unilaterally place their disabled child in a parochial school where a free appropriate public education is available.182 In another leading case, post-1997, KDM v. Reedsport School District, 183 the U.S. Court of Appeals, Ninth Circuit, ruled that IDEA did not require a school district to provide special education and related services on the site of a parochial school, and that a state regulation prohibiting public school services for disabled children on parochial school grounds comports with the Establishment and Free Exercise Clauses, as well as Equal Protection, of the U.S. Constitution.
Under the 1997 IDEA Amendments, a Child with a Disability Who Is Voluntarily Placed by Parents in Parochial School Has No Individual Right to Special Education Services
Foley v. Special School District of St. Louis County United States Court of Appeals, Eighth Circuit, 1998. 153 F.3d 863.
LOKEN, Circuit Judge. This is an appeal from the denial of equitable relief compelling the Special School District of St. Louis County (SSD) to provide special education and related services to a child at the private religious school where she was voluntarily placed by her parents, rather than at a public school
one mile away. We conclude the child has no individual right to such services under the 1997 amendments to the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400-1419 (IDEA). Accordingly, we affirm. Clare Foley is an eleven-year-old girl who is mildly mentally retarded. Her parents, Daniel and Margaret Foley, placed Clare in St. Peter’s Catholic School but requested special education services from SSD. An evaluation team determined that Clare should have one hour of occupational therapy, one-half hour of physical therapy, and one hour of language services per week. The Foleys demanded those services in Clare’s classroom at St. Peter ’s but SSD refused, construing state law as precluding public school educators from providing special education services on the premises of parochial schools. SSD offered the Foleys a dual enrollment alternative under which Clare would travel from St. Peter’s to a nearby public school to receive the special education services. The Foleys accepted this arrangement under protest and requested an IDEA due process hearing. . . . Prior to the hearing, SSD and the Foleys stipulated that the Foleys voluntarily placed Clare at St. Peter’s after SSD offered Clare a free appropriate public education at Keysor Public Elementary School. Thus, the issue is whether Clare has a right to special education services at her private school. . . . One month after the Foleys commenced this appeal, Congress enacted the Individuals with Disabilities Education Act Amendments of 1997, Pub. L. No. 105-17, 111 Stat. 37 (1997) (the “1997 Amendments”). Courts previously construed IDEA as granting children with disabilities who voluntarily attend private school a right to special education and related services. This led to litigation, such as this case, over where such services must be provided. . . . The 1997 Amendments addressed this problem in detail by amending 20 U.S.C. § 1412(a)—the section setting forth conditions States must meet to be eligible for federal education assistance—to include a new subsection (10), which provides in relevant part: . . . (A) Children enrolled in private schools by their parents (i) In general. To the extent consistent with the number and location of children with
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Placement in Private Schools disabilities in the State who are enrolled by their parents in private elementary and secondary schools, provision is made for the participation of those children in the program assisted or carried out under this subchapter by providing for such children special education and related services in accordance with the following requirements . . . : (I) Amounts expended for the provision of those services by a local educational agency shall be equal to a proportionate amount of Federal funds made available under this subchapter. (II) Such services may be provided to children with disabilities on the premises of private, including parochial, schools, to the extent consistent with law. . . . . . . (C) Payment for education of children enrolled in private schools without consent of or referral by the public agency (i) In general. Subject to subparagraph (A), this subchapter does not require a local educational agency to pay for the cost of education, including special education and related services, of a child with a disability at a private school or facility if that agency made a free appropriate public education available to the child and the parents elected to place the child in such private school or facility. . . .
The Foleys argue that new § 1412(a)(10)(A) gives Clare a right to special education services at St. Peter’s because that location is more beneficial educationally and no more costly than providing the services at a public school. Relying on § 1412(a)(10)(C)(i), SSD argues that the Foleys’ claim must be rejected because SSD is not “require[d] . . . To pay for the cost of . . . special education . . . At [Clare’s] private school.” . . . The 1997 Amendments expressly provide that public school agencies are not required to pay the costs of special education services for a particular child; States are required only to spend proportionate amounts on special education services for this class of students as a whole. 20 U.S.C. §§ 1412(a)(10)(A)(i)(I), 1412(a) (10)(C) (i). Thus whatever their rights under prior law, Clare and her parents now have no individual right under IDEA to the special education and related services in question, so they have no
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right to a federal court decree mandating that those services be provided at a particular location. This change in prior law compels us to conclude that the Foleys have no statutory right to the relief they seek. Alternatively, even if we construed the 1997 Amendments as granting private school children a right to some level of special education services, we cannot read § 1412(a)(10) (A)(i)(II)—which provides that such services “may be provided” on the premises of private schools “to the extent consistent with law”— as mandating that such services be provided on private school premises when that is inconsistent with Missouri law. Missouri’s refusal to allow public school educators on private school premises may not be mandated by the First Amendment, see Agostini v. Felton, 521 U.S. 203, 117 S. Ct. 1997, 138 L. Ed. 2d 391 (1997), and it may even be unfortunate education policy. But we find nothing in the 1997 Amendments authorizing federal courts to override such a state policy. Rather, the 1997 Amendments provide a less intrusive remedy by authorizing the Secretary of Education to invoke the “by-pass” provisions of § 1412(f) whenever state law frustrates the provision of services under § 1412(a)(10)(A). . . . For the foregoing reasons, the judgment of the district court is affirmed.
CASE NOTES 1. The 1997 amendments do not require services to be provided to a student who is voluntarily enrolled in a private school. Russman v. Board of Education, 150 F.3d 219, 221–22 (2nd Cir. 1998) (“states are required to provide to children voluntarily enrolled in private schools only those services that can be purchased with a proportionate amount of the federal funds received under the program. . . . [The] statute does not require a school district to provide on-site services to a disabled child who is voluntarily enrolled in private school.”); Fowler v. Unified School District No. 259, 128 F.3d 1431, 1436–37 (10th Cir. 1997) (“the [school district’s] sole obligation is to spend on such students . . . ‘a proportionate amount of Federal funds,’ . . .”); Cefalu v. East Baton Rouge Parish School Board, 117 F.3d 231, 233 (5th Cir. 1997)
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(“we therefore hold unambiguously that the defendants were not legally obligated to provide an on-site sign language interpreter to the plaintiff at the private school. We agree with those courts and conclude that the district court properly declined to grant plaintiff relief under the IDEA”). A private school’s failure to comply with the state’s licensure requirements or the state’s educational standards has been held not to bar tuition reimbursement to parents under the IDEA where a hearing panel found the private school to be a proper placement. Warren G. v. Cumberland County School District, 190 F.3d 80 (3rd Cir. 1999). The cost of reimbursement was found appropriate for parents who placed their child with Down syndrome in a private preschool where the public school was not shown to comport with the IDEA. Board of Education of LaGrange School District No. 105 v. Illinois, 184 F.3d 912 (7th Cir. 1999). Where parents unilaterally enrolled a child in a private school before an IEP was developed by the school district and then sought to compel the district to pay for the costs, the court ruled for the school district, saying that “case law is clear that [parents] are not entitled to dictate educational methodology or to compel a school district to supply a specific program for their disabled child.” Tucker v. Calloway County Board of Education, 136 F.3d 495 (6th Cir. 1998). The U.S. Court of Appeals, Fifth Circuit, ruled in a summary judgment for the school district where the school district denied compensatory education funding under IDEA to a 20-year-old disabled student on the basis that the private school program in which the student was enrolled, and paid for by the public school, produced social and emotional gains for the student. Lauren W. v. DeFlaminis, 480 F.3d 259 (5th Cir. 2007).
Related Services
Under Public Law 94-142, supportive services that enable special-needs children to benefit from special education must be made available without cost to the parents. The Act defines “related services”:
The term “related services” means transportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, and medical and counseling services, except that such medical services shall be for diagnostic and evaluative purposes only) as may be required to assist a handicapped child to benefit from special education.184
The federal regulation promulgated pursuant to the act further defines “psychological services” as “planning and managing a program of psychological services, including psychological counseling for children and parents” (34 C.F.R. § 300.13(b) (8)), and “counseling services” are defined as “services provided by qualified social workers, psychologists, guidance counselors, or other qualified personnel” (34 C.F.R. § 300.13(b)(2)). Confusion has arisen regarding which medical services fall within the domain of Public Law 94-142. In Irving Independent School District v. Tatro,185 clean intermittent catheterization (CIC) was required by the Supreme Court in spite of the fact that the school district had claimed the service was not required under Public Law 94-142,186 which exempt medical services except those for diagnostic and evaluation purposes.187 The Court in Tatro stated, “Only those services necessary to aid a handicapped child to benefit from special education must be provided” under the Act.188 Further, a federal district court has ruled that psychotherapy is a related service, although not specifically mentioned in either the Act or the regulations.189 Also, a federal circuit court has required out-of-district transportation, stating that “unless the transportation request is shown to be unreasonable, the EAHCA requires that such transportation be provided as a related service.”190 When a child is placed in a facility for medical purposes and not for educational placement, then the child is not within the purview of the Act. Where a child was placed in a hospital for psychiatric care, the court stated, “Although ‘related services’ may include medical services, the Act does not require a school system to provide services by a physician except those necessary for diagnostic and evaluation purposes.”191 Residential placement, however, is a related service in which social and emotional issues are intertwined with educational problems.192
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Related Services
Catheterization Falls Within Definition of “Related Services”
Irving Independent School District v. Tatro Supreme Court of the United States, 1984. 468 U.S. 883, 104 S. Ct. 3371.
Chief Justice BURGER delivered the opinion of the Court. We granted certiorari to determine whether the Education of the Handicapped Act or the Rehabilitation Act of 1973 requires a school district to provide a handicapped child with clean intermittent catheterization during school hours. Amber Tatro is an eight-year-old girl born with a defect known as spina bifida. As a result, she suffers from orthopedic and speech impairments and a neurogenic bladder, which prevents her from emptying her bladder voluntarily. Consequently, she must be catheterized every three or four hours to avoid injury to her kidneys. In accordance with accepted medical practice, clean intermittent catheterization (CIC), a procedure involving the insertion of a catheter into the urethra to drain the bladder, has been prescribed. The procedure is a simple one that may be performed in a few minutes by a layperson with less than an hour ’s training. Amber ’s parents, babysitter, and teenage brother are all qualified to administer CIC, and Amber soon will be able to perform this procedure herself. In 1979 petitioner Irving Independent School District agreed to provide special education for Amber, who was then three and one-half years old. In consultation with her parents, who are respondents here, petitioner developed an individualized education program for Amber under the requirements of the Education of the Handicapped Act, 84 Stat. 175, as amended significantly by the Education for All Handicapped Children Act of 1975, 89 Stat. 773, 20 U.S.C. §§ 1401(19), 1414(a)(5). The individualized education program provided that Amber would attend early childhood development classes
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and receive special services such as physical and occupational therapy. That program, however, made no provision for school personnel to administer CIC. . . . This case poses two separate issues. The first is whether the Education of the Handicapped Act requires petitioner to provide CIC services to Amber. The second is whether § 504 of the Rehabilitation Act creates such an obligation. We first turn to the claim presented under the Education of the Handicapped Act. States receiving funds under the Act are obliged to satisfy certain conditions. A primary condition is that the state implement a policy “that assures all handicapped children the right to a free appropriate public education.” 20 U.S.C. § 1412(1). Each educational agency applying to a state for funding must provide assurances in turn that its program aims to provide “a free appropriate public education to all handicapped children.” § 1414(a)(1)(C)(ii). A “free appropriate public education” is explicitly defined as “special education and related services.” § 1401(18). The term “special education” means specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a handicapped child, including classroom instruction, instruction in physical education, home instruction, and instruction in hospitals and institutions, § 1401(16). “Related services” are defined as transportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, and medical and counseling services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a handicapped child to benefit from special education, and includes the early identification and assessment of handicapping conditions in children. § 1401(17) (emphasis added).
The issue in this case is whether CIC is a “related service” that petitioner is obliged to provide to Amber. We must answer two questions: first, whether CIC is a “supportive servic[e]– . . . – required to assist a handicapped child to benefit from special education”; and second, whether CIC is excluded from this definition as a “medical servic[e]” serving purposes other than diagnosis or evaluation.
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The Court of Appeals was clearly correct in holding that CIC is a “supportive servic[e] . . . required to assist a handicapped child to benefit from special education.” It is clear on this record that, without having CIC services available during the school day, Amber cannot attend school and thereby “benefit from special education.” CIC services therefore fall squarely within the definition of a “supportive service.” As we have stated before, “Congress sought primarily to make public education available to handicapped children” and “to make such access meaningful.” Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 192, 102 S. Ct. 3034, 3043, (1982). A service that enables a handicapped child to remain at school during the day is an important means of providing the child with the meaningful access to education that Congress envisioned. The Act makes specific provision for services, like transportation, for example, that do no more than enable a child to be physically present in class, see 20 U.S.C. § 1401(17); and the Act specifically authorizes grants for schools to alter buildings and equipment to make them accessible to the handicapped, § 1406; see S. Rep. No. 94-168, p.38 (1975); 121 Cong. Rec. 19483–19484 (1975) (remarks of Sen. Stafford). Services like CIC that permit a child to remain at school during the day are no less related to the effort to educate than are services that enable the child to reach, enter, or exit the school. We hold that CIC services in this case qualify as a “supportive servic[e] . . . required to assist a handicapped child to benefit from special education.” We also agree with the Court of Appeals that provision of CIC is not a “medical servic[e],” which a school is required to provide only for purposes of diagnosis or evaluation. See 20 U.S.C. § 1401(17). We begin with the regulations of the Department of Education, which are entitled to deference. . . . The regulations define “related services” for handicapped children to include “school health services,” 34 CFR § 300.13(a) (1983), which are defined in turn as “services provided by a qualified school nurse or other qualified person,” § 300.13(b)(10). “Medical services” are defined as “services provided by a licensed physician.” § 300.13(b)(4). Thus, the Secretary has determined that the services of a school nurse otherwise qualifying as a “related
service” are not subject to exclusion as a “medical service,” but that the services of a physician are excludable as such. This definition of “medical services” is a reasonable interpretation of congressional intent. Although Congress devoted little discussion to the “medical services” exclusion, the Secretary could reasonably have concluded that it was designed to spare schools from an obligation to provide a service that might well prove unduly expensive and beyond the range of their competence. From this understanding of congressional purpose, the Secretary could reasonably have concluded that Congress intended to impose the obligation to provide school nursing services. Congress plainly required schools to hire various specially trained personnel to help handicapped children, such as “trained occupational therapists, speech therapists, psychologists, social workers and other appropriately trained personnel.” S. Rep. No. 94-168, supra, at 33. School nurses have long been a part of the educational system, and the Secretary could therefore reasonably conclude that school nursing services are not the sort of burden that Congress intended to exclude as a “medical service.” By limiting the “medical services” exclusion to the services of a physician or hospital, both far more expensive, the Secretary has given a permissible construction to the provision. . . . To keep in perspective the obligation to provide services that relate to both the health and educational needs of handicapped students, we note several limitations that should minimize the burden petitioner fears. First, to be entitled to related services, a child must be handicapped so as to require special education. See 20 U.S.C. § 1041(1); 34 CFR § 300.5 (1983). In the absence of a handicap that requires special education, the need for what otherwise might qualify as a related service does not create an obligation under the Act. See 34 CFR § 300.14, Comment (1) (1983). Second, only those services necessary to aid a handicapped child to benefit from special education must be provided, regardless of how easily a school nurse or layperson could furnish them. For example, if a particular medication or treatment may appropriately be administered to a handicapped child other than during the school day, a school is not required to provide nursing services to administer it.
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Related Services
Third, the regulations state that school nursing services must be provided only if they can be performed by a nurse or other qualified person, not if they must be performed by a physician. See 34 CFR §§ 300.13(a), (b)(4), (b)(10) (1983). It bears mentioning that here not even the services of a nurse are required; as is conceded, a layperson with minimal training is qualified to provide CIC. . . . Finally, we note that respondents are not asking petitioner to provide equipment that Amber needs for CIC. Tr. of Oral Arg. 18–19. They seek only the services of a qualified person at the school. We conclude that provision of CIC to Amber is not subject to exclusion as a “medical service,” and we affirm the Court of Appeals’ holding that CIC is a “related service” under the Education of the Handicapped Act. Respondents sought relief not only under the Education of the Handicapped Act but under § 504 of the Rehabilitation Act as well. . . . We hold today, in Smith v. Robinson, 468 U.S. 992, 104 S. Ct. 3457, (1984), that § 504 is inapplicable when relief is available under the Education of the Handicapped Act to remedy a denial of educational services. Respondents are therefore not entitled to relief under § 504, and we reverse the Court of Appeals’ holding that respondents are entitled to recover attorney’s fees. In all other respects, the judgment of the Court of Appeals is affirmed. It is so ordered.
Continuous Nursing Service Is “Related Service” That School District Must Provide Under IDEA
Cedar Rapids Community School District v. Garret F. Supreme Court of the United States, 1999. 526 U.S. 66, 119 S. Ct. 992.
Justice STEVENS delivered the opinion of the Court.
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The Individuals with Disabilities Education Act (IDEA), 84 Stat. 175, as amended, was enacted, in part, “to assure that all children with disabilities have available to them . . . a free appropriate public education which emphasizes special education and related services designed to meet their unique needs.” Consistent with this purpose, the IDEA authorizes federal financial assistance to States that agree to provide disabled children with special education and “related services.” See §§ 1401(a)(18), 1412(1). The question presented in this case is whether the definition of “related services” in § 1401(a) (17) requires a public school district in a participating State to provide a ventilator-dependent student with certain nursing services during school hours. Respondent Garret F. is a friendly, creative, and intelligent young man. When Garret was four years old, his spinal column was severed in a motorcycle accident. Though paralyzed from the neck down, his mental capacities were unaffected. He is able to speak, to control his motorized wheelchair through use of a puff and suck straw, and to operate a computer with a device that responds to head movements. Garret is currently a student in the Cedar Rapids Community School District (District), he attends regular classes in a typical school program, and his academic performance has been a success. Garret is, however, ventilator dependent, and therefore requires a responsible individual nearby to attend to certain physical needs while he is in school. During Garret’s early years at school his family provided for his physical care during the school day. When he was in kindergarten, his 18-year-old aunt attended him; in the next four years, his family used settlement proceeds they received after the accident, their insurance, and other resources to employ a licensed practical nurse. In 1993, Garret’s mother requested the District to accept financial responsibility for the health care services that Garret requires during the school day. The District denied the request, believing that it was not legally obligated to provide continuous one-on-one nursing services. . . . The District contends that § 1401(a)(17) does not require it to provide Garret with “continuous one-on-one nursing services” during the school
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day, even though Garret cannot remain in school without such care. . . . However, the IDEA’s definition of “related services,” our decision in Irving Independent School Dist. v. Tatro, 468 U.S. 883, 104 S. Ct. 3371, (1984), and the overall statutory scheme all support the decision of the Court of Appeals. The text of the “related services” definition, . . . broadly encompasses those supportive services that “may be required to assist a child with a disability to benefit from special education.” As we have already noted, the District does not challenge the Court of Appeals’ conclusion that the in-school services at issue are within the covered category of “supportive services.” As a general matter, services that enable a disabled child to remain in school during the day provide the student with “the meaningful access to education that Congress envisioned.” . . . This general definition of “related services” is illuminated by a parenthetical phrase listing examples of particular services that are included within the statute’s coverage. § 1401(a)(17). “Medical services” are enumerated in this list, but such services are limited to those that are “for diagnostic and evaluation purposes.” The statute does not contain a more specific definition of the “medical services” that are excepted from the coverage of § 1401(a)(17). The scope of the “medical services” exclusion is not a matter of first impression in this Court. In Tatro we concluded that the Secretary of Education had reasonably determined that the term “medical services” refer only to services that must be performed by a physician, and not to school health services. . . . Accordingly, we held that a specific form of health care (clean intermittent catheterization) that is often, though not always, performed by a nurse is not an excluded medical service. We referenced the likely cost of the services and the competence of school staff as justifications for drawing a line between physician and other services, but our endorsement of that line was unmistakable. It is thus settled that the phrase “medical services” in § 1401(a)(17) does not embrace all forms of care that might loosely be described as “medical” in other contexts, such as a claim for an income tax deduction. . . . The District does not ask us to define the term so broadly. Indeed, the District does not
argue that any of the items of care that Garret needs, considered individually, could be excluded from the scope of § 1401(a)(17). It could not make such an argument, considering that one of the services Garret needs (catheterization) was at issue in Tatro, and the others may be provided competently by a school nurse or other trained personnel. . . . [M]ost of the requested services are already provided by the District to other students, and the in-school care necessitated by Garret’s ventilator dependency does not demand the training, knowledge, and judgment of a licensed physician. . . . While more extensive, the in-school services Garret needs are no more “medical” than was the care sought in Tatro. Instead, the District points to the combined and continuous character of the required care, and proposed a test under which the outcome in any particular case would “depend upon a series of factors, such as [1] whether the care is continuous or intermittent, [2] whether existing school health personnel can provide the service, [3] the cost of the service, and [4] the potential consequences if the service is not properly performed.” The District’s multi-factor test is not supported by any recognized source of legal authority. The proposed factors can be found in neither the text of the statute nor the regulations that we upheld in Tatro. Moreover, the District offers no explanation why these characteristics make one service any more “medical” than another. The continuous character of certain services associated with Garret’s ventilator dependency has no apparent relationship to “medical” services, much less a relationship of equivalence. Continuous services may be more costly and may require additional school personnel, but they are not thereby more “medical.” Whatever its imperfections, a rule that limits the medical services exemption to physician services is unquestionably a reasonable and generally workable interpretation of the statute. Absent an elaboration of the statutory terms plainly more convincing than that which we reviewed in Tatro, there is no good reason to depart from settled law. Finally, the District raises broader concerns about the financial burden that it must bear to provide the services that Garret needs to stay in school. The problem for the District in providing
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Discipline and the “Stay-Put” Provision
these services is not that its staff cannot be trained to deliver them; the problem, the District contends, is that the existing school health staff cannot meet all of their responsibilities and provide for Garret at the same time. Through its multifactor test, the District seeks to establish a kind of undue-burden exemption primarily based on the cost of the requested services. The first two factors can be seen as examples of cost-based distinctions: intermittent care is often less expensive than continuous care, and the use of existing personnel is cheaper than hiring additional employees. The third factor—the cost of the service—would then encompass the first two. The relevance of the fourth factor is likewise related to cost because extra care may be necessary if potential consequences are especially serious. The District may have legitimate financial concerns, but our role in this dispute is to interpret existing law. Defining “related services” in a manner that accommodates the cost concerns Congress may have had . . . is altogether different from using cost itself as the definition. Given that § 1401(a)(17) does not employ cost in its definition of “related services” or excluded “medical services,” accepting the District’s costbased standard as the sole test for determining the scope of the provision would require us to engage in judicial lawmaking without any guidance from Congress. It would also create some tension with the purposes of the IDEA. The statute may not require public schools to maximize the potential of disabled students commensurate with the opportunities provided to other children . . . and the potential financial burdens imposed on participating States may be relevant to arriving at a sensible construction of the IDEA. . . . But Congress intended “to open the door of public education” to all qualified children and “require[d] participating States to educate handicapped children with non-handicapped children whenever possible.” . . . This case is about whether meaningful access to the public schools will be assured, not the level of education that a school must finance once access is attained. It is undisputed that the services at issue must be provided if Garret is to remain in school. Under the statute, our precedent, and the purposes of the IDEA, the District must fund such “related services” in order to help guarantee
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that students like Garret are integrated into the public schools. The judgment of the Court of Appeals is accordingly affirmed.
CASE NOTES 1. Treatment for Emotional Problems. The dividing line between related services and medical services is most difficult to define when a child has an emotional disability. In addressing this issue, a federal district court was called upon to apportion expenses used between related and medical services in this nebulous area of mental and psychological treatment. The district court concluded that counseling, psychological services, and periodic psychiatric evaluations for medication purposes are “related services when provided by a psychologist, social worker, or other professional.” Even though this decision was reversed on procedural grounds, this broad view of related services is likely to prevail. Antkowiak v. Ambach, 838 F.2d 635 (2nd Cir. 1988). 2. Provision of Extracurricular Activities. The EAHCA does not require that school districts provide extracurricular activities for children with disabilities. Rettig v. Kent City School District, 788 F.2d 328 (6th Cir. 1986).
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Discipline and the “Stay-Put” Provision
The mainstreaming of children with disabilities has underscored the need for guidelines governing the disciplining of those students. Neither Section 504 nor Public Law 94-142 addresses this issue, leaving it to the courts to decipher the legal ramifications involved. Two provisions of IDEA must be considered when disciplinary action is taken with a student with a disability: appropriate education and least-restrictive environment. Public Law 94-142 mandates that a student with a disability be provided a FAPE in the least-restrictive environment. Acceptable environments for the placement of a special-needs child range from least restrictive (a regular classroom) to highly restrictive (an institution). However, each environment can be termed least restrictive depending
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on the seriousness of a particular disability and on the student’s ability to cope within a specific environment.
THE “STAY-PUT” PROVISION The Education of the Handicapped Act contains a pendency-of-review provision that prohibits school authorities from unilaterally excluding a child with a disability from school during review proceedings to determine the placement of the student. Section 1415(e)(3) of the Act states that “the child shall remain in the then current educational placement” until proper placement can be determined. This so-called stay-put provision raises the question as to whether a child can be excluded from school for an indefinite period of time for dangerous or disruptive conduct growing out of a disability. S-1 v. Turlington193 and other cases194 left doubt as to whether there was, in fact, a “dangerousness” exclusion implied by the act. In Honig v. Doe, the U.S. Supreme Court resolved the issue by making it clear that the EAHCA (1) confers a substantive right to education on students with disabilities, (2) prohibits school officials from unilaterally excluding a student with a disability from the classroom for dangerous or disruptive conduct for an indeterminate period of time where conduct grows out of a disability, and (3) permits school officials to temporarily suspend a student for up to 10 days to protect the safety of others and to provide a “cooling down.” During this time, an IEP meeting can be initiated to review the child’s placement.195 When Congress amended the IDEA in 1997, a major concern and one of the most contentious of topics was the disciplining of students with disabilities. The discipline issue is frequently given as the reason that the final IDEA regulation, which was due to be released in May 1998, was delayed until March 1999. The 1997 amendments and the IDEA regulation allow school personnel to order a change of placement of special-needs children in certain situations. The change of placement may be made if the child brings a weapon to school or a school function or if the child possesses or uses illegal drugs. Under these conditions, the placement can be changed (1) “to an appropriate interim alternative setting, another setting, or suspension, for not more than 10 school days (to the extent
such alternatives would be applied to children without disabilities); and (2) to an appropriate interim alternative educational setting for the same amount of time that a child without disability would be subject to discipline, but not more than 45 days. . . .”196 The hearing officer who orders the interim alternative educational placement must have determined that maintaining the current placement would cause harm to the student or others, that the current placement is inappropriate, and that the school has made an effort to minimize the risk with supplementary aids and other services. When a disciplinary action is required, a manifestation determination review is also required. This review is to decide if the inappropriate behavior of the child is related to his or her disability. If after the review “the behavior of the child with a disability was not a manifestation of the child’s disability, the relevant disciplinary procedures applicable to children without disabilities may be applied to the child [with a disability] in the same manner in which they would be applied to children without disabilities.”197 Even if the child’s inappropriate behavior is not a manifestation of his or her disability, the child must receive a FAPE. Therefore, when an IDEA child is suspended or expelled, services may not be terminated.198
“Stay-Put” Provision Prohibits School Authorities from Unilaterally Excluding Students with Disabilities from Classroom for Dangerous Conduct Growing Out of Disability
Honig v. Doe Supreme Court of the United States, 1988. 484 U.S. 305, 108 S. Ct. 592.
Justice BRENNAN delivered the opinion of the Court. As a condition of federal financial assistance, the Education of the Handicapped Act requires States to ensure a “free appropriate public education” for all disabled children within their jurisdictions. In aid of this goal, the Act establishes a comprehensive system of procedural safeguards designed to ensure parental participation
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Discipline and the “Stay-Put” Provision
in decisions concerning the education of their disabled children and to provide administrative and judicial review of any decisions with which those parents disagree. Among these safeguards is the so-called “stay-put” provision, which directs that a disabled child “shall remain in [his or her] then current educational placement” pending completion of any review proceedings, unless the parents and state or local educational agencies otherwise agree. 20 U.S.C. § 1415(e)(3). Today we must decide whether, in the face of this statutory proscription, state or local school authorities may nevertheless unilaterally exclude disabled children from the classroom for dangerous or disruptive conduct growing out of their disabilities. In addition, we are called upon to decide whether a district court may, in the exercise of its equitable powers, order a State to provide educational services directly to a disabled child when the local agency fails to do so. . . . The present dispute grows out of the efforts of certain officials of the San Francisco Unified School District (SFUSD) to expel two emotionally disturbed children from school indefinitely for violent and disruptive conduct related to their disabilities. In November 1980, respondent John Doe assaulted another student at the Louise Lombard School, a developmental center for disabled children. Doe’s April 1980 IEP identified him as a socially and physically awkward 17 year old who experienced considerable difficulty controlling his impulses and anger. Among the goals set out in his IEP was “[i]mprovement in [his] ability to relate to [his] peers [and to] cope with frustrating situations without resorting to aggressive acts.” Frustrating situations, however, were an unfortunately prominent feature of Doe’s school career: physical abnormalities, speech difficulties, and poor grooming habits had made him the target of teasing and ridicule as early as the first grade; his 1980 IEP reflected his continuing difficulties with peers, noting that his social skills had deteriorated and that he could tolerate only minor frustration before exploding. On November 6, 1980, Doe responded to the taunts of a fellow student in precisely the explosive manner anticipated by his IEP: he
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choked the student with sufficient force to leave abrasions on the child’s neck, and kicked out a school window while being escorted to the principal’s office afterwards. Doe admitted his misconduct and the school subsequently suspended him for five days. Thereafter, his principal referred the matter to the SFUSD Student Placement Committee (SPC or Committee) with the recommendation that Doe be expelled. . . . After unsuccessfully protesting these actions by letter, Doe brought this suit against a host of local school officials and the state super intendent of public education. Alleging that the suspension and proposed expulsion violated the EHA, he sought a temporary restraining order cancelling the SPC hearing and requiring school officials to convene an IEP meeting. The District Judge granted the requested injunctive relief and further ordered defendants to provide home tutoring for Doe on an interim basis; shortly thereafter, she issued a preliminary injunction directing defendants to return Doe to his then current educational placement at Louise Lombard School pending completion of the IEP review process. Doe re-entered school on December 15, 5½ weeks, and 24 school days, after his initial suspension. Respondent Jack Smith was identified as an emotionally disturbed child by the time he entered the second grade in 1976. School records prepared that year indicated that he was unable “to control verbal or physical outburst[s]” and exhibited a “[s]evere disturbance in relationships with peers and adults.” Further evaluations subsequently revealed that he had been physically and emotionally abused as an infant and young child and that, despite above average intelligence, he experienced academic and social difficulties as a result of extreme hyperactivity and low self esteem. Of particular concern was Smith’s propensity for verbal hostility; one evaluator noted that the child reacted to stress by “attempt[ing] to cover his feelings of low self worth through aggressive behavior[,] . . . primarily verbal provocations.” Based on these evaluations, SFUSD placed Smith in a learning center for emotionally disturbed children. . . .
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At the beginning of the next school year, Smith was assigned to a full-day program; almost immediately thereafter he began misbehaving. School officials met twice with his grandparents in October 1980 to discuss returning him to a half-day program; although the grandparents agreed to the reduction, they apparently were never apprised of their right to challenge the decision through EHA procedures. The school officials also warned them that if the child continued his disruptive behavior—which included stealing, extorting money from fellow students, and making sexual comments to female classmates—they would seek to expel him. On November 14, they made good on this threat, suspending Smith for five days after he made further lewd comments. His principal referred the matter to the SPC, which recommended exclusion from SFUSD. . . . After learning of Doe’s action, Smith sought and obtained leave to intervene in the suit. The District Court subsequently entered summary judgment in favor of respondents on their EHA claims and issued a permanent injunction. In a series of decisions, the District Judge found that the proposed expulsions and indefinite suspensions of respondents for conduct attributable to their disabilities deprived them of their congressionally mandated right to a free appropriate public education, as well as their right to have that education provided in accordance with the procedures set out in the EHA. The District Judge therefore permanently enjoined the school district from taking any disciplinary action other than a two- or five-day suspension against any disabled child for disability-related misconduct, or from effecting any other change in the educational placement of any such child without parental consent pending completion of any EHA proceedings. In addition, the judge barred the State from authorizing unilateral placement changes and directed it to establish an EHA compliance-monitoring system or, alternatively, to enact guidelines governing local school responses to disability-related misconduct. Finally, the judge ordered the State to provide services directly to disabled children when, in any individual case, the State determined that the local educational agency was unable or unwilling to do so.
On appeal, the Court of Appeals for the Ninth Circuit affirmed the orders with slight modifications. . . . Petitioner Bill Honig, California Superintendent of Public Instruction, sought review in this Court, claiming that the Court of Appeals’ construction of the stay-put provision conflicted with that of several other courts of appeals which had recognized a dangerousness exception, . . . and that the direct services ruling placed an intolerable burden on the State. We granted certiorari to resolve these questions, . . . and now affirm. . . . The language of § 1415(e)(3) is unequivocal. It states plainly that during the pendency of any proceedings initiated under the Act, unless the state or local educational agency and the parents or guardian of a disabled child otherwise agree, “the child shall remain in the then current educational placement.” § 1415(e)(3) (emphasis added). Faced with this clear directive, petitioner asks us to read a “dangerousness” exception into the stay-put provision on the basis of either of two essentially inconsistent assumptions: first, that Congress thought the residual authority of school officials to exclude dangerous students from the classroom too obvious for comment; or second, that Congress inadvertently failed to provide such authority and this Court must therefore remedy the oversight. Because we cannot accept either premise, we decline petitioner’s invitation to re-write the statute. Petitioner’s arguments proceed, he suggests, from a simple, common-sense proposition: Congress could not have intended the stay-put provision to be read literally, for such a construction leads to the clearly unintended, and untenable, result that school districts must return violent and dangerous students to school while the often lengthy EHA proceedings run their course. We think it clear, however, that Congress very much meant to strip schools of the unilateral authority they had traditionally employed to exclude disabled students, particularly emotionally disturbed students, from school. In so doing, Congress did not leave school administrators powerless to deal with dangerous students; it did, however, deny school officials their former right to “self-help,” and directed that in the future the removal of disabled students could be accomplished only
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Discipline and the “Stay-Put” Provision
with the permission of the parents or, as a last resort, the courts. As noted above, Congress passed the EHA after finding that school systems across the country had excluded one out of every eight disabled children from classes. . . . Congress attacked such exclusionary practices in a variety of ways. It required participating States to educate all disabled children, regardless of the severity of their disabilities, 20 U.S.C. § 1412(2)(C), and included within the definition of “handicapped” those children with serious emotional disturbances. § 1401(1). It further provided for meaningful parental participation in all aspects of a child’s educational placement, and barred schools, through the stay-put provision, from changing that placement over the parent’s objection until all review proceedings were completed. Recognizing that those proceedings might prove long and tedious, the Act’s drafters did not intend § 1415(e)(3) to operate inflexibly, see 121 Cong. Rec. 37412 (1975) (remarks of Sen. Stafford), and they therefore allowed for interim placements where parents and school officials are able to agree on one. Conspicuously absent from § 1415(e)(3), however, is any emergency exception for dangerous students. This absence is all the more telling in light of the injunctive decree issued in PARC, which permitted school officials unilaterally to remove students in “extraordinary circumstances.” 343 F. Supp., at 301. Given the lack of any similar exception in Mills, and the close attention Congress devoted to these “landmark” decisions, see S. Rep., at 6, U.S. Code Cong. & Admin. News p. 1430, we can only conclude that the omission was intentional; we are therefore not at liberty to engraft onto the statute an exception Congress chose not to create. Our conclusion that § 1415(e)(3) means what it says does not leave educators hamstrung. The Department of Education has observed that, “[w]hile the [child’s] placement may not be changed [during any complaint proceeding], this does not preclude the agency from using its normal procedures for dealing with children who are endangering themselves or others.” Comment following 34 CFR § 300.513 (1987). Such procedures may include the use of study carrels, time-outs, detention, or the restriction of privileges. More drastically, where a student
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poses an immediate threat to the safety of others, officials may temporarily suspend him or her for up to 10 school days. This authority, which respondent in no way disputes, not only ensures that school administrators can protect the safety of others by promptly removing the most dangerous of students, it also provides a “cooling down” period during which officials can initiate IEP review and seek to persuade the child’s parents to agree to an interim placement. And in those cases in which the parents of a truly dangerous child adamantly refuse to permit any change in placement, the 10-day respite gives school officials an opportunity to invoke the aid of the courts under § 1415(e)(2), which empowers courts to grant any appropriate relief. . . . As the EHA’s legislative history makes clear, one of the evils Congress sought to remedy was the unilateral exclusion of disabled children by schools, not courts, and one of the purposes of § 1415(e)(3), therefore, was “to prevent school officials from removing a child from the regular public school classroom over the parents’ objection pending completion of the review proceedings.” . . . The stayput provision in no way purports to limit or pre-empt the authority conferred on courts by § 1415(e)(2), . . . indeed, it says nothing whatever about judicial power. In short, then, we believe that school officials are entitled to seek injunctive relief under § 1415(e)(2) in appropriate cases. In any such action, § 1415(e)(3) effectively creates a presumption in favor of the child’s current educational placement which school officials can overcome only by showing that maintaining the child in his or her current placement is substantially likely to result in injury either to himself or herself, or to others. In the present case, we are satisfied that the District Court, in enjoining the state and local defendants from indefinitely suspending respondent or otherwise unilaterally altering his then current placement, properly balanced respondent’s interest in receiving a free appropriate public education in accordance with the procedures and requirements of the EHA against the interests of the state and local school officials in maintaining a safe learning environment for all their students. We believe the courts below properly construed and applied § 1415(e)(3), except insofar
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as the Court of Appeals held that a suspension in excess of 10 school days does not constitute a “change in placement.” We therefore affirm the Court of Appeals’ judgment on this issue as modified herein. Because we are equally divided on the question whether a court may order a State to provide services directly to a disabled child where the local agency has failed to do so, we affirm the Court of Appeals’ judgment on this issue as well. Affirmed.
CASE NOTES 1. In Honig v. Doe, the Supreme Court stated that a school district may suspend a child who is dangerous to himself or herself, or to others, for up to 10 days without violating the stayput provision. If the school district needs more than 10 days to develop a new IEP with a more restrictive environment or if the parents do not agree with the new placement, then the school district may request that the courts issue an injunction to either keep the child out of school or temporarily place the child until an appropriate placement may be formulated. In post-Honig litigation, school districts have requested injunctions because of the dangerous propensities of a child. One school district obtained an injunction to keep a 17-year-old autistic and behavior-disordered student out of school pending a new placement. The student became overtly sexually and physically aggressive, posing a danger to himself, fellow students, and the faculty and staff. Before issuing an injunction, the federal district court stated that four factors must be considered: (1) [W]hether the plaintiff is reasonably likely to succeed on the merits of the action; (2) whether the plaintiff will be irreparably harmed absent the injunction or will have an adequate remedy at law; (3) whether the prospective injury to the plaintiff outweighs the injury the injunction may impose upon the defendant; (4) whether a preliminary injunction will deserve the public interest. Board of Education of Township High School District No. 211, Cook County, Illinois v. Corral, 1989 WL 57041 (N.D. Ill. 1989).
2. Manifestation Determination. In order to implement the requirements of Honig, and pursuant to IDEA and Section 504 of the Rehabilitation Act, the school district must determine whether a student’s behavior leading up to discipline is not a manifestation of a disability. If the behavior is not a manifestation of the student’s disability, then the discipline may be the same as with any regular general education student. The manifestation team is to determine after a hearing whether “the conduct in question was caused by, or had a direct and substantial relationship to the child’s disability.” Doe v. Todd County School District, 2008 WL 5069367 (D.S.D. 2008). See also: Fitzgerald v. Fairfax County School Board, 556 F. Supp. 2d 543 (E.D.Va. 2008). 3. A number of courts have described the stayput provision of the IDEA as an “automatic injunction.” The Seventh Circuit states that the “stay-put order is sufficiently clear and definite to be enforceable by the usual sanction for violating an injunction—civil or criminal contempt—so that the order has not only the form of an injunction but also the bite that a real injunction has.” Board of Education of Oak Park v. Illinois State Board of Education, 79 F.3d 654, 657 (7th Cir. 1996); see also Rodiriecus v. Waukegan School District No. 60, 90 F.3d 249 (7th Cir. 1996). 4. Before a “stay-put” placement is invoked, it must be demonstrated that school officials knew, or should have known, that the student might be disabled, as assessed by his or her school performance. In a case where a juvenile enrolled at a middle school committed a robbery and was placed under the guardianship of the Illinois Department of Children, the principal recommended expulsion, and the student filed suit asserting the school was prohibited from expelling him while he was being evaluated as a student with a disability. The question is whether the stay-put provision applies to a child not yet diagnosed as disabled. This student performed in an “average” manner, and the prospect of disability did not surface until he was going to be expelled. The court said, “The IDEA was intended to provide individualized public education for disabled children. The Act was not designated to act
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as a shield to protect a disruptive child from routine and appropriate school discipline.” Rodiriecus v. Waukegan School District No. 60, 90 F.3d 249 (7th Cir. 1996).
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Compensatory Education
The entitlement of a free appropriate public education under the IDEA extends to students until they reach the age of 21.199 Yet, if a student with a disability has suffered from earlier deprivation of a free appropriate public education, then a court may require compensatory education to continue beyond age 21.200 The courts, although not establishing a precise standard for awarding compensatory education, have generally concluded that a school district’s flagrant failure to comply with the IDEA or egregious conduct by a school district detrimental to a student with a disability is sufficient rationale for the awarding of compensatory education.201 In M. C. v. Central Regional School District, the U.S. Court of Appeals, Third Circuit, helped clarify the standard, stating that “the right to compensatory education accrues when the school knows or should know that its IEP is not providing an appropriate education.”202 This court further ruled that the awarding of compensatory education to a student with a disability does not require that the school district’s behavior rise to a level of “slothfulness or bad faith”;203 nor does it require that egregious disregard of the student’s rights be proved. The question, of course, thus arises as to whether the right to compensatory education is justified merely by the denial of an appropriate IEP or only if the child is denied an appropriate education. The court in M. C. held that “[a] school district that knows or should know that a child has an inappropriate [IEP] or is not receiving more than a de minimis benefit must, of course, correct the situation. We hold that . . . a disabled child is entitled to compensatory education for a period equal to the deprivation.”204 Following this rationale, the Third Circuit in Ridgewood Board of Education v. N. E. 205 rejected the idea that compensatory education could hinge on distinguishing the difference between the denial of an appropriate education
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and the denial of an appropriate IEP. This court said that “IDEA’s central goal is that disabled students receive an appropriate education, not merely an appropriate IEP. Therefore, a disabled student’s right to a compensatory education accrues when the school knows or should know that the student is receiving an inappropriate education.” Because compensatory education is provided to compensate for lost education opportunity, it becomes important to determine when and for how long the deficiency occurred. In answering this question, the Third Circuit has determined that the right of compensatory education accrues “when the school knows or should know that its IEP is not providing an appropriate education.”206
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Attorney’s and Expert’s Fees
Attorney’s fees may be awarded by the courts to parents who win lawsuits against school districts (§ 1415(e)(4)(B)). Attorney’s fees were permitted by a 1986 amendment entitled the Handicapped Children’s Protection Act (HCPA). The IDEA amendment provides that a “prevailing party” may be awarded attorney’s fees and costs: “In any action or proceeding brought under this subsection, the court, in its discretion, may award reasonable attorneys’ fees as part of the costs to the parents or guardian of a child or youth with a disability who is the prevailing party.” This amendment was considered necessary because Congress observed that the weight of heavy attorney’s fees could conceivably make parents reluctant to raise valid complaints challenging school district actions. The amendment was initiated following a Supreme Court decision in 1984, in Smith v. Robinson,207 in which the Court found that parents, in bringing EAHCA actions, could not claim attorney’s fees under either Section 1983 of the Civil Rights Act of 1871 or Section 504 of the Rehabilitation Act. Those who opposed the amendment maintained that an undefined right to attorney’s fees was tantamount to giving a blank check for lawyer ’s fees not only for judicial action, but also for due process hearings and preliminary
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reviews in extra-judicial settings. Congress finally resolved the issue for purposes of the amendment by including specifications and limitations for courts to follow in awarding attorney’s fees. The amendment, the Handicapped Children’s Protection Act of 1986 (HCPA) (Public Law 99372), further provided that, in addition to recovery under the IDEA, recovery could be sustained under the Rehabilitation Act and the Civil Rights Act. The only restriction to invoking the last two Acts is that the student with a disability must have exhausted IDEA procedures. Under IDEA, the “prevailing party” can be awarded attorney’s fees by the court. Thus, the law regarding the awarding of attorney’s fees has developed into an entire subcategory of IDEA law. The primary issue, however, becomes the determination of the “prevailing party.” For example, parents have been found not to be the prevailing party where they did not make the request for attorney’s fees prior to the due process hearing,208 and, too, parents have been held not to be the prevailing party where the school district’s compliance was apparently voluntary and not the result of a judicially enforceable settlement. 209 Too, the “prevailing party” determination may depend on whether the court resolves the matter under state or federal law. In a 1999 Iowa case, the U.S. Court of Appeals, Eighth Circuit, decided that a child with a disability was not a “prevailing party” under IDEA provisions for attorney’s fees, even though he obtained the relief he sought, because the federal district court had couched its decision in favor of the child based on Iowa law, rather than the IDEA. Iowa law, unlike federal IDEA law, does not provide for attorney’s fees for the prevailing party.210 Statutory provisions for attorney’s fees do not extend to special education lay advocates who are not lawyers. To permit such fees would, in the court’s opinion, allow a plethora of unlicensed legal practitioners to have access to public resources, which would not be in the public’s best interest.211 The apparent majority view of the courts is that a parent–attorney who represents his or her own children in an IDEA action is not eligible to receive attorney’s fees even if he or she prevails in the litigation.212
Section 1988 of the HCPA states that “reasonable fees are to be calculated according to the prevailing market rates in the relevant community, regardless of whether plaintiff is represented by private or non-profit counsel.”213
Non-Attorney Expert’s Fees Are Not “Costs” Reimbursable to Parents from State
Arlington Central School District v. Murphy Supreme Court of the United States, 2006. 548 U.S 291, 126 S. Ct. 2455.
Justice ALITO delivered the opinion of the Court. The Individuals with Disabilities Education Act (IDEA or Act) provides that a court “may award reasonable attorneys’ fees as part of the costs” to parents who prevail in an action brought under the Act. 111 Stat. 92, 20 U.S.C. § 1415(i)(3)(B). We granted certiorari to decide whether this fee-shifting provision authorizes prevailing parents to recover fees for services rendered by experts in IDEA actions. We hold that it does not. Respondents Pearl and Theodore Murphy filed an action under the IDEA on behalf of their son, Joseph Murphy, seeking to require petitioner Arlington Central School District Board of Education to pay for their son’s private school tuition for specified school years. Respondents prevailed in the District Court, . . . and the Court of Appeals for the Second Circuit affirmed, . . . As prevailing parents, respondents then sought $29,350 in fees for the services of an educational consultant, Marilyn Arons, who assisted respondents throughout the IDEA proceedings. The District Court granted respondents’ request in part. It held that only the value of Arons’ time spent between the hearing request and the ruling in respondents’ favor could properly be considered charges incurred in an “action
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Attorney’s and Expert’s Fees
or proceeding brought” under the Act, . . . This reduced the maximum recovery to $8,650. The District Court also held that Arons, a nonlawyer, could be compensated only for time spent on expert consulting services, not for time spent on legal representation, but it concluded that all the relevant time could be characterized as falling within the compensable category, and thus allowed compensation for the full $8,650, . . . The Court of Appeals for the Second Circuit affirmed. . . . 402 F.3d, at 336-337 (citing H.R. Conf. Rep. No. 99-687, p. 5 (1986), U.S. Code Cong. & Admin. News, 1986, p. 1807). Based on these authorities, the court concluded that it was required to interpret the IDEA to authorize the award of the costs that prevailing parents incur in hiring experts. We granted certiorari, . . . , to resolve the conflict among the Circuits with respect to whether Congress authorized the compensation of expert fees to prevailing parents in IDEA actions. . . . We now reverse. Our resolution of the question presented in this case is guided by the fact that Congress enacted the IDEA pursuant to the Spending Clause. . . . Like its statutory predecessor, the IDEA provides federal funds to assist state and local agencies in educating children with disabilities “and conditions such funding upon a State’s compliance with extensive goals and procedures.” Board of Ed. of Hendrick Hudson Central School Dist., Westchester City v. Rowley, . . . . Congress has broad power to set the terms on which it disburses federal money to the States, see, e.g., South Dakota v. Dole, . . . , but when Congress attaches conditions to a State’s acceptance of federal funds, the conditions must be set out “unambiguously,” see Pennhurst State School and Hospital v. Halderman, . . . “[L]egislation enacted pursuant to the spending power is much in the nature of a contract,” and therefore, to be bound by “federally imposed conditions,” recipients of federal funds must accept them “voluntarily and knowingly.” Pennhurst, . . . . States cannot knowingly accept conditions of which they are “unaware” or which they are “unable to ascertain.” Thus, in the present case, we must view the IDEA from the perspective of a state official who is engaged in the process of deciding whether the State should accept IDEA funds and the
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obligations that go with those funds. We must ask whether such a state official would clearly understand that one of the obligations of the Act is the obligation to compensate prevailing parents for expert fees. In other words, we must ask whether the IDEA furnishes clear notice regarding the liability at issue in this case. In considering whether the IDEA provides clear notice, we begin with the text. We have “stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there.” When the statutory “language is plain, the sole function of the courts—at least where the disposition required by the text is not absurd—is to enforce it according to its terms.” . . . The governing provision of the IDEA, 20 U.S.C. § 1415(i)(3)(B), provides that “[i]n any action or proceeding brought under this section, the court, in its discretion, may award reasonable attorneys’ fees as part of the costs” to the parents of “a child with a disability” who is the “prevailing party.” While this provision provides for an award of “reasonable attorneys’ fees,” this provision does not even hint that acceptance of IDEA funds makes a State responsible for reimbursing prevailing parents for services rendered by experts. Respondents contend that we should interpret the term “costs” in accordance with its meaning in ordinary usage and that § 1415(i)(3)(B) should therefore be read to “authorize reimbursement of all costs parents incur in IDEA proceedings, including expert costs.” This argument has multiple flaws. For one thing, as the Court of Appeals in this case acknowledged, “ ‘costs’ is a term of art that generally does not include expert fees.” The use of this term of art, rather than a term such as “expenses,” strongly suggests that § 1415(i)(3) (B) was not meant to be an open-ended provision that makes participating States liable for all expenses incurred by prevailing parents in connection with an IDEA case—for example, travel and lodging expenses or lost wages due to time taken off from work. Moreover, contrary to respondents’ suggestion, § 1415(i)(3)(B) does not say that a court may award “costs” to prevailing parents; rather, it says that a court may award reasonable attorney’s fees “as part of the costs” to prevailing parents. . . . Thus, the text
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of 20 U.S.C. § 1415(i)(3)(B) does not authorize an award of any additional expert fees, and it certainly fails to provide the clear notice that is required under the Spending Clause. Other provisions of the IDEA point strongly in the same direction. While authorizing the award of reasonable attorney’s fees, the Act contains detailed provisions that are designed to ensure that such awards are indeed reasonable. The absence of any comparable provisions relating to expert fees strongly suggests that recovery of expert fees is not authorized. . . . In sum, the terms of the IDEA overwhelmingly support the conclusion that prevailing parents may not recover the costs of experts or consultants. Certainly the terms of the IDEA fail to provide the clear notice that would be needed to attach such a condition to a State’s receipt of IDEA funds. . . . We reverse the judgment of the Court of Appeals for the Second Circuit and remand the case for further proceedings consistent with this opinion.
CASE NOTE Parents as Own Legal Counsel. In 2007, the U.S. Supreme Court held that parents enjoy individual rights, under IDEA, apart from their child. This is an exceedingly technical point; however, the Court, in closely reading the law, interprets it to mean that parents and children, each, separately, are granted by IDEA independent enforceable rights, and parents are, thereby, entitled to prosecute IDEA claims on their own behalf. Therefore, parents of a disabled child may be the “party aggrieved” by a local educational agency’s decision as to whether their child qualifies to receive a free, appropriate education under IDEA and are entitled to bring a civil action under the law on their own behalf. The technical issue in this case arose as to whether the parents could represent themselves as their own attorneys in an IDEA action. At common law an individual can represent herself in a civil action pro se. The question, thus, is raised as whether parents can represent their child under IDEA. The Court resolved the issue by determining that the Act makes parents “real parties” themselves in IDEA complaints and not mere guardians of their children’s rights. Therefore, parents can represent themselves as legal
counsel to vindicate their child’s rights, and their own, in court. Winkelman v. Parma City School District, 550 U.S. 516, 127 S. Ct. 1994 (2007).
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Rehabilitation Act of 1973, Section 504
The Rehabilitation Act of 1973 states: No otherwise qualified handicapped individual in the United States . . . shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.214
Section 504 applies to all agencies receiving federal funds for any purpose, and such funds may be forfeited if charges of agency discrimination against persons with disabilities are sustained. Although Section 504 is concerned with discrimination against individuals with disabilities in work situations, it also addresses the problems encountered by children with disabilities in seeking equal educational opportunity. Five mandates included in Section 504 pertain directly to the educational needs of children with disabilities: (1) location and notification; (2) free, appropriate public education; (3) educational setting; (4) evaluation and placement; and (5) procedural safeguards.215 These provisions of Section 504 have been used successfully in obtaining desirable school programs and services for students with disabilities. The strength of this Act was dealt a substantial, if temporary, blow by the U.S. Supreme Court in Grove City College v. Bell.216 The court held that Title IX, 217 a statute prohibiting sex discrimination, did not apply comprehensively to all aspects of an educational institution, but covered only those parts of the educational institution receiving federal assistance. Because the wording of Title IX was similar to that of Section 504, the Supreme Court decision severely crippled the latter Act’s effectiveness. The Supreme Court itself was not completely definitive as to whether Grove City applied to Section 504 because in 1987, in School Board of Nassau County v. Arline,218 it allowed relief for a teacher with a disability who claimed Section 504 relief, ignoring the possible application of the Grove City restraint to Section 504. The teacher in
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Rehabilitation Act of 1973, Section 504
Arline was not required to show that the specific program in which she was endeavoring to participate was a federally funded program. The questions surrounding this constricted view of Section 504 were, however, obviated by congressional action that corrected the defect by enacting the Civil Rights Restoration Act in 1988.219 This legislation amended Section 504 of the Rehabilitation Act by clarifying the language to remove all doubt that the law applies to all operations of public educational institutions. Section 504 defines an individual with a disability as one who “(i) has a physical or mental impairment which substantially limits one or more of such person’s major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment.” 220 A three-part test to determine whether a plaintiff has a disability was established by the Supreme Court in Bragdon v. Abbott.221 This test, applied in several other case, requires, first, that the plaintiff show that he or she suffers from a physical or mental impairment. Second, the plaintiff must identify the activity claimed to be impaired and establish that it constitutes a “major life activity.” Third, the plaintiff must show that his or her impairment “substantially limits” the major life activity previously identified.222 It is not necessary to demonstrate that the plaintiff cannot learn in order to plead that he or she is “disabled,” rather it is sufficient to show that the plaintiff is substantially limited in a “major life activity” of central importance to daily life.223 Major life activities include seeing, hearing, and walking, but also may include exerting oneself and attending school.224 Inability to climb four flights of stairs in a school building without inordinate physical exertion has been held to constitute a disability.225
DIFFERENCE BETWEEN SECTION 504 AND THE IDEA How are Section 504 and the Individuals with Disabilities Act (IDEA) different? First, the IDEA establishes a very detailed set of rules and procedures for states to follow in providing a FAPE. Section 504 does not establish such comprehensive regulations for school districts; however, regulations promulgated for Section 504 by the U.S. Department of Education do establish criteria for school districts so that compliance
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with the IDEA means that the school district also complies with Section 504.226 Second, Section 504 prohibits discrimination against all persons with disabilities, including school-age children, regardless of whether they require educational services. The IDEA, on the other hand, only requires special education services for children with disabilities of school age. A child with a disability may be protected from discrimination by Section 504, but not require special education services. Section 504 covers children and others who, for some reason, are not attending school, or for example, schoolchildren who test positive for the HIV virus, but who do not require special education services. Third, as noted earlier, the provision of an appropriate education program that meets the IDEA requirements will also satisfy Section 504; however, an educational plan that does not comport with the IDEA will not necessarily violate Section 504.227 Fourth, Section 504 applies to all governmental entities that receive federal financial assistance where the IDEA only applies to state and local education agencies that receive funds under the IDEA. Fifth, parents of children with disabilities may be entitled to services under Section 504. The broader coverage of Section 504 that prohibits discrimination against adults as well as school-age children has been interpreted to require schools to provide signlanguage interpreters for school conferences with parents relating to academic and/or discipline for their children.228 Section 504 prohibits discrimination against “otherwise qualified” individuals solely on the basis of disability. Because of Section 504’s direct applicability to adults, most litigation involves employment discrimination. An employer violates Section 504 if a decision denies employment to a person with a disability “solely” because of the disability if the disability is unrelated to ability to perform the job. In other words, Section 504 does not prohibit the consideration of a person’s disability in determining ability to perform a certain job since a disability may bear a relationship with performance of a job. Section 504 also has procedural safeguards for persons with disabilities that are of importance to school districts. Regulations pertaining to Section 504 promulgated by the Department of Education require school districts to establish standards and procedures for evaluating students who require
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special education services. A school district’s failure to do so violates Section 504. School district procedures must provide for timely hearing and resolution of issues regarding application of Section 504 protections for students. Inappropriate delays in hearing proceedings or failure to complete hearings and produce a transcript in a timely manner may constitute a violation.229 Students who qualify as disabled under both Section 504 and the IDEA must exhaust their administrative remedies under IDEA before seeking redress in court.230 In order to accommodate Section 504, school districts must provide reasonable accommodation where necessary. Under the IDEA, appropriate educational services include the physical accommodations necessary for the student with a disability. Yet, even where reasonable accommodations are not included in the IDEA educational plan, violation of Section 504 may still occur if the accommodations discriminate against the student.
SECTION 504 AND AIDS A major problem facing society and public schools is the dreaded and lethal acquired immunodeficiency syndrome (AIDS). The first known case of this contagious disease was reported by the Centers for Disease Control (CDC) in 1981.231 AIDS is a disease believed to be caused by a retrovirus that destroys the immune system: “A retrovirus is a class of viruses with special genetic material which allows them to produce copies of themselves inside the cells they infect, killing the host cells in the process.”232 A person may test positive for the virus and transmit the virus to others, but be asymptomatic. The person who tests seropositive and displays a number of symptoms characteristic of the disease may not be considered to have AIDS. It is estimated, depending on the source, that 30 to 90 percent of those who are seropositive “healthy carriers”233 will develop AIDS. When a person exhibits symptoms of a weakened immune system, he or she is no longer a carrier of the virus but has been attacked by the virus, and he or she has AIDSrelated complex (ARC). At this stage, the individual is susceptible to disease because of the weakened immune system. There are no known cures for AIDS, and the disease is fatal.
Because of the finality of this disease, there has been widespread concern and fear within society. The Ray court stated: While we wait for medical science to save us from what many think may be such a raging, indiscriminate inferno, it is the task of this court to deal with the here and now of this lethal, inevitability fatal disease, for which there is currently no inoculation and no cure. The mystery of the virus and its communicability challenges jurists legally to be assured our decisions do not lead us to allow proliferation of this disease by our ignorance.234
A number of cases have arisen in the public schools where children who have AIDS or children who have tested positive have been excluded from the regular classroom. The school districts have attempted to continue the child’s education with homebound instruction or by other means. Numerous legal questions have arisen relating to AIDS, but the most prominent has been whether a school district can exclude a child who has AIDS or tests positive for the AIDS virus. AIDS cases involving public school children have been litigated under the Rehabilitation Act of 1973, Section 504 (29 U.S.C. § 794); the Education for All Handicapped Children Act (20 U.S.C. § 1415(e)(2)); the Due Process and Equal Protection Clauses of the U.S. Constitution; and various state statutes. The two major areas of contention have been the Rehabilitation Act of 1973 and the IDEA.
THE IDEA AND AIDS Are children with AIDS covered by the Individuals with Disabilities Act? The IDEA defines “handicapped children” as mentally retarded, hard of hearing, deaf, speech or language impaired, visually handicapped, seriously emotionally disturbed, orthopedically impaired, or other health impaired children, or children with specific learning disabilities who by reason thereof require special education and related services.235 (emphasis added.)
In the case of AIDS students, the category that would most closely fit is “other health impaired children.” This phrase is defined as [l]imited strength, vitality or alertness due to chronic or acute health problems such as a heart condition, tuberculosis, rheumatic fever, nephritis,
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Rehabilitation Act of 1973, Section 504 asthma, sickle-cell anemia, hemophilia, epilepsy, lead poisoning, leukemia, or diabetes, which adversely affects a child’s educational performance.236 (emphasis added.)
AIDS is not listed as an example of an acute or chronic health problem by the IDEA. In October of 1984, the Department of Education addressed the applicability of the IDEA to AIDS victims. The Department stated that an AIDS child is not considered to be “handicapped” as defined in IDEA unless the child needs special education. The policy states: Children with AIDS could be eligible for special education programs under the category of “other health-impaired,” if they have chronic or acute health problems which adversely affect their educational performance.237
The IDEA applies to AIDS victims only if the virus adversely affects their educational performance. If a child is seropositive or a “healthy carrier,” then he or she is not covered under the IDEA, but if the child becomes an AIDS victim and this diminishes his or her educational performance, then the IDEA must be enforced to meet the needs of the child.
Is a Child with AIDS a Significant Risk, and If So, Could the Child Be Reasonably Accommodated? Case Remanded to Determine Risk
Martinez v. School Board of Hillsborough County United States Court of Appeals, Eleventh Circuit, 1988. 861 F.2d 1502.
VANCE, Circuit Judge. This case involves the appropriate educational placement of a mentally retarded child infected with the human immunodeficiency virus, the virus that causes Acquired Immunodeficiency Syndrome (AIDS). Appellant, Eliana Martinez, is seven years old and has an I.Q. of 41. This classifies her as a trainably mentally handicapped
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child. Eliana was born prematurely and received thirty-nine blood transfusions in the first four months of life. In April 1985 Eliana was diagnosed as suffering from AIDS Related Complex. She now is in the late stages of AIDS but her condition has been stabilized for several months. The court below found that Eliana is not toilet trained and suffers from thrush, a disease that can produce blood in the saliva. Eliana sucks her thumb and forefinger frequently, resulting in saliva on her fingers. In the past Eliana has suffered from skin lesions. When these occurred, Mrs. Rosa Martinez, her adoptive mother, has kept her at home. . . . Two overlapping federal statutes establish the framework for determining appropriate educational placement for handicapped children—the Education of the Handicapped Act (the “EHA”) [EHA is the same as EAHCA], and section 504 of the Rehabilitation Act of 1973 (“section 504”). . . . When the EHA and section 504 are read together, a complementary set of standards emerges to determine the appropriate educational setting for a handicapped child. The EHA requires participating states to provide a “free appropriate public education” to handicapped children. 20 U.S.C. § 1412(2)(B) (1982). Educational authorities must develop an individualized educational program stating the educational program and setting forth specific goals for each handicapped child. . . . Section 504 of the Rehabilitation Act more broadly provides: No otherwise qualified handicapped individual . . . shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service. 29 U.S.C. § 794 (1982).
In considering whether an exclusion is prohibited by section 504, a trial judge must first determine whether the individual is “otherwise qualified.” When a person is handicapped with a contagious disease this task requires the judge to conduct an individualized inquiry and to make appropriate findings of fact, “based on reasonable medical judgments . . . about (a) the
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nature of the risk (how the disease is transmitted), (b) the duration of the risk (how long is the carrier infectious), (c) the severity of the risk (what is the potential harm to third parties) and (d) the probabilities the disease will be transmitted and will cause varying degrees of harm.” . . . As a second step the court must evaluate whether reasonable accommodations would make the handicapped individual otherwise qualified. When a child with an infectious disease seeks relief under both the EHA and section 504 of the Rehabilitation Act, the relationship between these two statutory frameworks is particularly intricate. The trial judge must first determine the most appropriate educational placement for the handicapped child under EHA procedures. Next, the court must determine whether the child is otherwise qualified within the meaning of section 504 to be educated in this setting, despite the communicable disease. . . . If not, the court must consider whether reasonable accommodations could reduce the risk of transmission so as to make the child otherwise qualified to be educated in that setting. In considering accommodations that would make the child “otherwise qualified,” the court must bear in mind the requirement that to the maximum extent appropriate, the child is to be educated in the least restrictive environment. Eliana is entitled to a free appropriate public education under the EHA. She suffers from two handicaps under section 504 of the Rehabilitation Act: she is mentally retarded and has AIDS; each condition results in a “physical or mental impairment which substantially limits one or more major life activities.” . . . Applying the standards under these two statutes to the facts of this case, the trial court first had to determine the most appropriate educational placement for Eliana under the EHA. Next, it had to consider whether Eliana was otherwise qualified to be educated in this setting. If the trial court found that Eliana was not otherwise qualified, it then had to consider whether reasonable accommodations would make her so. If, after reasonable accommodations, a significant risk of transmission would still exist, Eliana would not be otherwise qualified. As the parties agreed, the appropriate educational placement for Eliana under the EHA would be the regular trainable mentally handicapped classroom if she did not suffer from
AIDS. This presented the question whether the exclusion of Eliana from that setting is unlawful under section 504. In conducting this inquiry, the trial court had to determine whether Eliana was otherwise qualified to be educated in the regular TMH classroom. The trial court found a “remote theoretical possibility” of transmission with respect to tears, saliva and urine. This does not rise to the “significant” risk level that is required for Eliana to be excluded from the regular TMH classroom. . . . The court below made no findings with respect to the overall risk of transmission from all bodily substances, including blood in the saliva, to which other children might be exposed in the TMH classroom. Accordingly, we remand with directions that the trial court make findings as to the overall risk of transmission so that it can determine whether Eliana is otherwise qualified to attend classes in the TMH classroom. If the risk of transmission supports a finding that Eliana is not “otherwise qualified” to attend classes with the other children in the TMH classroom, the court must consider whether reasonable accommodations would make her so. In evaluating possible accommodations, a trial court must consider the effect of each proposed accommodation on the handicapped child and the institution. . . . The court must be guided by the requirement that, to the maximum extent appropriate, these accommodations place the child in the least restrictive environment that would make the child otherwise qualified. Additionally, the court must consider the financial burden the accommodation would impose on the institution. . . . We vacate the judgment of the district court and remand the case so that the district court may make the further required findings. The district court should receive such additional evidence as it deems necessary in light of such requirements. It should thereafter enter such judgment as is appropriate. Vacated and remanded with instructions.
CASE NOTE The Eleventh Circuit Court of Appeals remanded Martinez to the federal district court, and the court ruled: The Court has seriously considered the allegations now being raised that the risk to Eliana far
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Summation of Case Law outweighs any benefit to her from attending school with other children. . . . The decision must balance the risk to the child versus the benefit which flows from the attendance at school. Keeping this child out of school does not guarantee her safety and long life; death if it seeks and takes Eliana may come from various sources which are available to her without restriction: the park, the mall, or her home. Upon conscientious consideration of the issue from all sides, the Court cannot find that the risk is significant enough to counterbalance the benefit and rights to this child inherent in attending school with other children. . . . 1.
2.
3.
4.
5.
6.
7.
The appropriate educational placement for Eliana Martinez under the Education for All Handicapped Children Act would be the regular Trainable Mentally Handicapped classroom if she did not suffer from AIDS. The possibility of transmission with respect to tears, saliva, and urine is remote and theoretical and does not rise to the “significant” risk level that is required to bar Eliana Martinez from the regular Trainable Mentally Handicapped classroom. The evidence does not support a finding that the overall risk of transmission from all bodily substances, including blood in the saliva, rises to the “significant” risk level of requiring this child’s exclusion from the classroom. The Court finds that Eliana Martinez is “otherwise qualified” to attend the Trainable Mentally Handicapped classroom at Manhattan Elementary School, which is the most appropriate educational setting for this child pursuant to the EHA. Since the Court finds Eliana Martinez “otherwise qualified” to attend this classroom, it is unnecessary for the Court to consider the effect of any accommodation. The Court readopts its previous conclusion of law stating that if there is a question of the advisability of Eliana being in the classroom on a certain day, the school nurse should be consulted for an evaluation of either Eliana, or another child, if the danger may be an infection from another child to Eliana. It is not necessary for Eliana, nor the rest of the TMH students, to be seen by the nurse or other health practitioner on a daily basis to determine if Eliana should be in the integrated classroom that day. The Court will require that the Hillsborough County School Board provide
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educational programs to the school parent population, and student population as far as is practicable, that will be associated with Eliana Martinez in the classroom, with the aim of educating and informing them regarding the realities of AIDS, and the proper procedures in order to deal with the situation and minimize the risk of transmission to others. In addition a copy of this Order is to be made available to the public at the Office of Manhattan Elementary School. Accordingly, it is Ordered that Defendant, The School Board of Hillsborough County, Florida, admit Plaintiff Eliana Martinez to the Trainable Mentally Handicapped classroom of Manhattan Elementary School within the parameters of this order.
Done and ordered. Martinez v. School Board of Hillsborough County, 711 F. Supp. 1066 (M.D. Fla. 1989).
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Summation of Case Law
Mills and Due Process 1. A school board has an obligation to provide whatever specialized instruction that will benefit the child that is determined to have behavioral problems, to be mentally disabled, or to be emotionally disturbed or hyperactive. 2. Due process of law is required before children, who had been labeled to have behavioral problems, mentally retarded, emotionally disturbed or hyperactive, are suspended or expelled from public schools. 3. Failure to provide a publicly supported education for “exceptional” children by including and retaining them in the public school system or otherwise providing them with publicly supported education and failure to afford them a hearing and periodical review cannot be excused by a claim that there are insufficient funds. 4. If sufficient funds are not available to finance all services and programs that are needed and desirable in public school system, then the available funds must be expended equitably in such manner that no child is entirely excluded from publicly supported education, consistent with his needs and ability to benefit therefrom.
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Free Appropriate Public Education (FAPE) 1. Education for All Handicapped Children (EAHC) Act’s requirement of a “free appropriate public education” is satisfied when state provides personalized instruction with sufficient support services to permit the handicapped child to benefit educationally from instruction. 2. The EAHC requires that instruction and services must be provided at public expense, must meet state’s educational standards, must approximate grade levels used in state’s regular education, and, too, must comport with child’s individualized educational plan. 3. The EAHC Act’s requirement of a “free appropriate public education” does not require a state to maximize potential of handicapped child commensurate with opportunity provided nonhandicapped child. The Individualized Education Plan (IEP) 1. The Individuals with Disabilities in Education Act (IDEA) leaves to the states the primary responsibility for developing and executing educational programs for handicapped children, but it imposes significant requirements to be followed in the discharge of that responsibility. 2. The core of the IDEA is the cooperative process that it establishes between parents and public schools. 3. Under the IDEA, the burden of proof in an administrative hearing challenging an Individualized Education Program (IEP) is properly placed upon the party seeking relief, whether that is the disabled child or the school district. 4. The burdens of pleading and proof with regard to most facts have and should be assigned to the plaintiff who generally seeks to change the present state of affairs and who therefore naturally should be expected to bear the risk of failure of proof or persuasion. Oberti Factors 1. The mainstreaming requirement of the IDEA prohibits the school from placing a child with disabilities outside the regular classroom if educating a child in a regular classroom, with
supplementary aids and support services, can be achieved satisfactorily. 2. In determining whether a disabled child can be educated satisfactorily in a regular classroom with supplementary aids and services, a court should consider: the steps the school has taken to try to include the child in regular classroom; a comparison between educational benefits the child will receive in regular classroom, with supplementary aids and services, and the benefits the child will receive in a segregated special education classroom; as well as the possible negative effects the child’s inclusion may have on the education of other children in the regular classroom. 3. A determination that a child with disabilities might make greater academic progress in a segregated special education class may not warrant excluding the child from a regular classroom environment. A court must pay special attention to the unique benefits that the child may obtain from integration in regular classroom, such as development of social and communications skills from interaction with nondisabled peers. 4. The fact that a child with disabilities will learn differently than other students if educated in a regular classroom does not justify exclusion from that environment. Reverse Mainstreaming 1. In determining whether a school district’s placement of a disabled student outside of a regular classroom meets the provision of the IDEA requiring free appropriate public education (FAPE), the court must ask: first, whether the state has complied with the procedures set forth in the IDEA, and second, whether the individualized educational program developed through the IDEA procedures is reasonably calculated to enable the child to receive educational benefits. 2. A school district’s recommendation that a student with severe mental and physical disabilities be placed in a special education classroom, with reverse mainstreaming opportunities, may satisfy the provision of IDEA requiring free, appropriate public education (FAPE), and the least-restrictive environment (LRE) provision of IDEA.
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Summation of Case Law
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Reimbursement for Private Schools
Stay-Put
1. Reimbursement under IDEA to parents who have placed their child in a private school after a public school failed to provide an appropriate individual education plan is not barred by the private school’s failure to meet state education standards. 2. Parents who unilaterally place their learning disabled child during the pendency of proceedings without the consent of the state or local school officials do so at their own risk and are entitled to reimbursement only if a federal court concludes both that the public placement violated IDEA and that the private school placement was proper under the Act.
1. The IDEA is more than a simple funding statute; instead, it confers upon disabled students an enforceable substantive right to a public education. 2. The IDEA establishes various procedural safeguards that guarantee parents both the opportunity for meaningful input into all decisions affecting their child’s education and the right to seek review of any decision they think is inappropriate. 3. The “stay-put” provision of the IDEA provides that during pendency of any proceedings initiated under the Act “the child shall remain in the current educational placement.” During pendency, the school authorities cannot unilaterally exclude the disabled child from the classroom for dangerous or disruptive conduct growing out of disabilities. 4. Although a handicapped child’s placement cannot be unilaterally changed during any complaint proceeding, where the student poses an immediate threat to the safety of others, the school officials may temporarily suspend him or her for up to 10 days without violating the IDEA. Suspension in excess of 10 days constitutes prohibited “change in placement” under the Act. 5. In any action brought by a school seeking to temporarily enjoin a dangerous disabled child from attending school, there is a presumption in favor of the child’s current educational placement. School officials can overcome the presumption only by showing that maintaining the child in his or her current placement is substantially likely to result in injury either to himself or herself, or to others.
Related Services 1. Clean, intermittent catheterization is a “supportive service” which a school district is required to provide under the IDEA. 2. Intermittent catheterization is not a “medical service” which the school is not required to provide. 3. Only those services necessary to aid a handicapped child to benefit from special education must be provided under the IDEA as a “related service,” regardless of how easily a school nurse or lay person could furnish them. 4. Intermittent catheterization is a “related service” under the IDEA which the school is required to provide. 5. Continuous nursing services required by a quadriplegic, ventilator-dependent student are “related services” that must be provided by the school district during school hours. Such services are supportive services and do not constitute “medical services.” Medical Services 1. The phrase medical services, as excepted from IDEA’s definition of “related services” that must be provided to a disabled child, by the school district, refers to those services that must be performed by a physician. 2. Factors such as the nature and cost of a particular service requested by a disabled child are not determinative as to whether that service is a “medical service” as excluded from statutory definition of “related service.”
Expert Fees Non-attorney expert’s fees for services rendered to prevailing parents in an IDEA action are not “costs” recoverable from state under the Act’s fee-shifting provision. The Act itself contains no hint of a state’s responsibility for expert fees. “Costs” as a term of art generally does not comprise expert fees and recoverable costs and witness fees in federal courts are strictly limited by statute.
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Rehabilitation Act, Section 504 1. To prevail on a claim under Rehabilitation Act § 504, a plaintiff must establish that she (1) is a qualified individual with a disability; (2) was denied the benefits of a program or activity of a public entity receiving federal funds; and (3) was discriminated against based on her disability. 2. Accommodations requested under the Rehabilitation Act are not reasonable if they impose undue financial and administrative burdens on the school or if they require a fundamental alteration in the nature of the program. 3. A requirement that parents provide transportation for disabled students who sought to participate in an intra-district transfer program, whereby students were permitted to attend school outside their assigned attendance areas, did not discriminate against students in violation of Rehabilitation Act. All students who participated in the program were subject to the requirement that their parents provide transportation, and such transportation policy did not discriminate against the disabled students. 4. Accommodation of establishing special bus route for one student may be an undue financial burden on a school district and may constitute a fundamental alteration in nature of intra-district transfer program, and would therefore not be required by the Rehabilitation Act. Children with AIDS The remote theoretical possibility of transmission from tears, saliva, and urine of a mentally disabled child with AIDS (Acquired Immunodeficiency Syndrome) does not support the segregation of the child from a regular trainable mentally handicapped classroom in an elementary school.
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Research Aids
Research citations below are abbreviated as: American Law Reports (A.L.R.), American Jurisprudence (Am.Jur.), Corpus Juris Secundum (C.J.S.), and McQuillen Municipal Corporations (McQuillen Mun.Corp.). Explanations for each of these sources of law are found in Chapter 1 of this text. Also, see Appendix B of this book. 67B Am.Jur.2d Schools § 403. Who Are Children with Disabilities?
67B Am.Jur.2d Schools § 415. Free Appropriate Public Education and Individualized Education Program. 23 A.L.R. 4th 740. Requisite Conditions and Appropriate Factors Affecting Educational Placement of Handicapped Children. 161 A.L.R. Fed 1. What Constitutes Services That Must Be Provided by Federally Assisted Schools Under the Individuals with Disabilities Education Act (IDEA)? 189 A.L.R. Fed. 297. The Least Restrictive Environment Provision of IDEA and Its Application. 67B Am.Jur.2d Schools § 409 and § 410. Educational Placements Under IDEA and Placement of Students in Least Restrictive Environment. 93 Am.Jur. Proof of Facts 3d 1. Parents’ or Student’s Proof in Action for Educational Services or Tuition Reimbursement Under the Special Education Laws. 152 A.L.R. Fed. 485. Obligation of Public Educational Agencies, under IDEA, to Pay Tuition Costs for Students Unilaterally Placed in Private Schools—Post Burlington Cases. 103 A.L.R. Fed. 120. Construction of “Stayput” Provision of IDEA: Handicapped Children Shall Remain in Current Educational Placement Pending Disciplinary Proceedings. 67B Am.Jur.2d Schools § 429. Compensatory Education: Procedural Safeguards under IDEA. 153 A.L.R. Fed 1. Who Is the Prevailing Party for Purposes of Obtaining Attorney’s Fees Under IDEA? Law Reviews Ronald D. Wenkart, “The Rowley Standard: A Circuit by Circuit Review of How Rowley Has Been Interpreted,” 247 Ed. Law Rep. 1 (2009). William H. Hurd and Stephen C. Piepgrass, “Special Education Law,” 44 University of Richmond Law Review 17 (2009). Ralph D. Mawdsley, “The Supreme Court’s Reassessment of Parental Unilateral Placement Under the IDEA: Forest Grove School District v. T.A.,” 251 Ed. Law Rep. 1 (2010). Emily Blumberg, “Forest Grove School District v. T. A.,” 45 Harvard Civil Rights-Civil Liberties Law Review 163 (2010). Laura McNeal, “Access Granted: The Winkelman Case Ushers in a New Era in parental Advocacy,” 10 Brigham Young University Ed and Law Journal 129 (2010).
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Endnotes
Ronna Greff Schneider, “Education Law: First Amendment, Due Process and Discrimination Litigation,” 2 Education Law 6:16, August 2009. Ralph D. Mawdsley, “Standard of Care for Students With Disabilities: The Intersection of Liability Under the IDEA and Tort Theories,” 252 Ed. Law Rep. 527, March 2010. Dean Hill Rivkin, “Decriminalizing Students With Disabilities,” 54 N.Y.L. Sch. L. Rev. 909, 2009/2010. Susan C. Bon, “Confronting the Special Education Inclusion Debate: A Proposal to Adopt New State-wide LRE Guidelines,” 249 E. Law Rep. 1, November 2009. Perry A. Zirkel, “The Problematic Progeny of Winkelman v. Parma City School District,” 248 Ed. Law Rep. 1, October 2009. Shawn C. Swisher, “IDEA, Private Schools, Tuition Reimbursement, and the Supreme Court: Who Would Pay For That?” 45 Willamette L. Rev. 823, Summer 2009. Courtney Rachel Baron, “Lessons Learned From Forest Grove School District v. T.A.: How The Supreme Court Can Refine the Approach to Private School Tuition Reimbursement Under the IDEA,” 103 Nw. U.L. Rev. Colloquy 522, May 2009. Wendy F. Hensel, “Rights Resurgence: The Impact of the ADA Amendments Act on Schools and Universities,” 25 Ga. St. U.L. Rev. 641, Spring 2009. E. Chaney Hall, “Public School Obligations to Pay Private School Tuition: Reinterpreting the IDEA in Forest Grove School District v. T.A.,” 4 Duke J. Const. L. & Pub. Pol’y Sidebar 409, April 2009. Perry A. Zirkel, “Special Education Law Update X,” 240 Ed. Law Rep. 503, March 2009. Theresa Sidebotham, “An Overview of Special Education Law—Part II,” 38 MAR Colo. Law. 59, March 2009. Perry A. Zirkel, “A Step-by-Step Process § 504/ADA Eligibility Determinations: An Update,” 239 Ed. Law Rep. 333, February 2009.
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Endnotes
1. Public Law 101–46, 104 Stat. 1103 (1975). 2. Public Law 105–17, 111 Stat. 37 (20 U.S.C. §§ 1400– 1485) (1997) (2004). 3. 20 U.S.C. § 1401(d). 4. The authors wish to express sincere appreciation to Patricia Anthony, Ph.D., for preparation of this portion of the chapter.
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5. Donald F. Moores, Educating the Deaf: Psychology, Principles and Practices (Boston: Houghton Mifflin, 1978). 6. Ibid. 7. Resolve for Erecting a Lunatic Hospital (1831), Resolves of the General Court of the Commonwealth of Massachusetts. 8. Jonathan Messerli, Horace Mann (New York: Alfred A. Knopf, 1972). 9. Samuel A. Kirk and James J. Gallagher, Educating Exceptional Children, 4th ed. (Boston: Houghton Mifflin, 1983). 10. Watson v. City of Cambridge, 157 Mass. 561, 32 N.E. 864 (1893). 11. State ex rel. Beattie v. Board of Education, 169 Wis. 231, 172 N.W. 153 (1919). 12. Ibid., 172 N.W. at 154. 13. Ralph B. Kimbrough and Michael Y. Nunnery, Educational Administration (New York: Macmillan, 1976). 14. Ibid. 15. Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686 (1954). 16. Ibid. 17. P e n n s y l v a n i a A s s ’ n f o r R e t a r d e d C h i l d re n v. Commonwealth, 334 F. Supp. 1257 (E.D. Pa. 1971), and 343 F. Supp. 279 (E.D. Pa. 1972). 18. Ibid. 19. Mills v. Board of Education of District of Columbia, 348 F. Supp. 866 (D.D.C. 1972). 20. Ibid. 21. Pennsylvania Ass’n for Retarded Children v. Commonwealth, op. cit. 22. Ibid. 23. Ibid. 24. See Bonnie Pointras Tucker, Federal Disabilities Law, 2nd ed. (St. Paul, Minn.: West 1998), p. 11. 25. § 504, Rehabilitation Act of 1973. 26. Education for All Handicapped Children Act, 20 U.S.C.A. § 1400(b). 27. Ibid., § 1401. 28. Ibid. 29. Public Law 95-561, 92 Stat. 2364 (1978); Public Law 98-199, 97 Stat. 1357 (1983); Public Law 99-372, 100 Stat. 796 (1986); Public Law 99-457, 100 Stat. 1145 (1986). 30. Education of the Handicapped Act Amendments of 1983: Report of Mr. Hatch to accompany S. 1341, Comm. on Labor and Human Resources, S. Rep. No. 191, 98th Cong., 1st Sess. 7 (1983). 31. Ibid. 32. S. Rep. No. 315, 99th Cong., 2nd Sess. 3, 5 (1986). See also H. Rep. No. 860, 99th Cong., 2nd Sess., reprinted in 1986 U.S. Code Cong. & Admin. News 2401. 33. 20 U.S.C. § 1422. 34. 20 U.S.C. § 1415. 35. 20 U.S.C. §§ 1400–1485. 36. See Dixie Snow Huefner, “The Individuals with Disabilities Education Act Amendments of 1997,” 122 Ed. Law Rep. 1103 (March 5, 1998). 37. Ibid., p. 1104. 38. 20 U.S.C. § 1402(3). 39. 20 U.S.C. § 1412(a)(3)(B). 40. Huefner, op. cit., p. 1104. 41. 20 U.S.C. § 1415(K).
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42. See Tucker, op. cit., pp. 488–491. 43. Ibid. 44. 20 U.S.C. § 1412(a)(1)(B)(ii). 45. Huefner, op. cit. 46. Pub. L. No. 108-446, 118 Stat. 2647, 20 U.S.C.A. §§ 1400-1482 (West 2005). 47. See Mark C. Weber, “Reflections on the New Individuals with Disabilities Education Improvement Act,” 58 Fla. L. Rev. 7, January, 2006. 48. Ibid. 49. Board of Education of Ottawa Township High School District 140 v. Spellings, 517 F.3d 922 (7th Cir. 2008). 50. Ibid. See: 20 U.S.C.A. § 7801 (11) (West 2005). 51. Weber, op. cit. 52. Florence County School District v. Carter, 510 U.S. 7, 114 S. Ct. 361 (1993). 53. 34 C.F.R. § 200.13(c) (ii) (2005): See Weber, op. cit., for more explanation. 54. 20 U.S.C.A. § 1413 (f) (West 2005). 55. See: 20 U.S.C.A. § 1413 (f) (1). 56. See: 20 U.S.C.A. § 1412 (a) (10) (A) (i) (I) (West 2005). 57. Zobrest v. Catalina Foothills, 509 U.S. 1, 113 S. Ct. 2462 (1993). 58. 70 Fed. Reg. 35, 864 (June 21, 2005) to be codified at 34 C.F.R. § 300, 307 (a) (1). 59. 20 U.S.C.A. § 1414 (b) (6) (B). 60. 70 Fed Reg. 35, 802 (June 21, 2005) (to be codified at 34 C.F.R. § 300.307 (a) (3)-(4)). See also Weber, op. cit., for more in-depth analysis. 61. See: Weber, op. cit. 62. 20 U.S.C.A. § 1415 (i) (3) (B) (i) (II). 63. See Weber, op. cit. 64. 20 U.S.C.A. § 1415 (f) (1) (B) (i) (I)-(II). 65. 20 U.S.C.A. § 1415 (f) (1) (B) (i) (III). 66. Weber, op. cit. 67. 20 U.S.C.A. § 1415 (k) (7) (D) (West 2005). Serious bodily injury is “a substantial risk of death; extreme physical pain; protracted or obvious disfigurement; or protracted loss or impairment of the function of a bodily member, organ, or mental faculty.” 18 U.S.C.A. § 1365 (h) (3). 68. 20 U.S.C.A. § 1415 (k) (l) (E) (i) (West 2005). 69. Weber, op. cit. 70. Honig v. Doe, 484 U.S. 305, 108 S. Ct. 592 (1988). 71. 20 U.S.C. § 1401(18). 72. 20 U.S.C. § 1415. 73. Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 102 S. Ct. 3034 (1982). 74. See Tara L. Eyer, “Greater Expectations: How the 1997 IDEA Amendments Raise the Basic Floor of Opportunity for Children with Disabilities,” 126 Ed. Law Rep. 1 (August 6, 1998). 75. Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. at 201, 102 S. Ct. at 3048 (1982). 76. Ibid., 458 U.S. at 206, 102 S. Ct. at 3051. 77. Ibid., 458 U.S. at 212, 102 S. Ct. at 3054. 78. Timothy W. v. Rochester School District, 875 F.2d 954 (1st Cir. 1989). 79. Board of Education of Hendrick Hudson Central School District v. Rowley, op. cit.
80. Timothy W. v. Rochester School District, op. cit.; Fort Zumwalt School District v. Clynes, 119 F.3d 607 (8th Cir. 1997). See Mark C. Weber, “The Transformation of Education of the Handicapped Act: A Study in the Interpretation of Radical Statutes,” 24 University of California at Davis Law Review, p. 349 (Winter 1990). 81. Fort Zumwalt School District v. Clynes, 119 F.3d 607 (8th Cir. 1997). 82. Board of Education of Hendrick Hudson Central School District v. Rowley, op. cit.; See Eyer, op. cit., p. 1. 83. Board of Education v. Diamond, 808 F.2d 987 (3rd Cir. 1986); Hall v. Vance County Board of Education, 774 F.2d 629 (4th Cir. 1985). 84. Doe v. Smith, 879 F.2d 1340 (6th Cir. 1989). 85. Urban v. Jefferson County School District, 89 F.3d 720 (10th Cir. 1996). 86. Cypress-Fairbanks Independent School District v. Michael F., 118 F.3d. 245 (5th Cir. 1997). 87. Perry A. Zirkel, “Special Education Law Update VI,” 133 Ed. Law Rep. 323 (May 27, 1999). 88. Deal v. Hamilton County Department of Education, 258 Fed. Appx. 863 2008 WL 77788 (6th Cir. 2008). 89. Ibid. 90. Doe v. Maher, 793 F.2d 1470 (9th Cir. 1986). 91. Adams v. State of Oregon, 195 F.3d 1141 (9th Cir. 1999) 92. Battle v. Pennsylvania, 629 F.2d 269 (3rd Cir. 1980). 93. Ibid., p. 272. 94. Ibid., p. 277. 95. Ibid., p. 280. 96. Crawford v. Pittman, 708 F.2d 1028, 1035 (5th Cir. 1983). 97. Ibid. 98. Georgia Ass’n of Retarded Citizens v. McDaniel, 511 F. Supp. 1263 (N.D. Ga. 1981), aff’d, 716 F.2d 1565 (11th Cir. 1983), vacated on other grounds, 468 U.S. 1213, 104 S. Ct. 3581 (1984), on remand, 740 F.2d 902 (11th Cir. 1984). 99. Battle v. Pennsylvania, op. cit. 100. Yaris v. Special School District of St. Louis, 558 F. Supp. 545 (E.D. Mo. 1983), aff’d, 728 F.2d 1055 (8th Cir. 1986). 101. Crawford v. Pittman, op. cit. 102. Georgia Association of Retarded Citizens v. McDaniel, op. cit. 103. MM ex rel. DM v. School District of Greenville County, 303 F.3d 523 (4th Cir. 2002). 104. Alamo Heights Independent School District v. State Board of Education, 790 F. 2d 1153, 1159 (5th Cir. 1986). 105. Ibid. 106. Ibid., p. 1158. 107. Johnson v. Independent School District No. 4 of Bixby, 921 F.2d 1022 (10th Cir. 1990). 108. Polk v. Central Susquehanna Intermediate Unit 16, 853 F.2d 171 (3rd Cir. 1988). 109. Board of Education of Hendrick Hudson Central School District v. Rowley, 102 S. Ct. at 3049. 110. Johnson v. Independent School District No. 4 of Bixby, op. cit. 111. Cordrey v. Euckert, 917 F.2d 1460, 1464 (6th Cir. 1990). 112. Ibid., p. 1471. 113. Ibid., p. 1472.
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Endnotes 114. N. B. and C. B. v. Hellgate Elementary School District, 541 F.3d 1202 (9th Cir. 2008). 115. Ibid. 116. Mills v. Board of Education of District of Columbia, op. cit.; Board of Education of Hendrick Hudson Central School District v. Rowley, op. cit. 117. 20 U.S.C. § 1415; see also IDEA Regulations, 34 C.F.R. §§ 300.500–517. 118. Speilberg v. Henrico County Public Schools, 853 F.2d 256 (4th Cir. 1988). 119. Burke County Board of Education v. Denton, 895 F.2d 973 (4th Cir. 1990). 120. Doe v. Defendant I, 898 F.2d 1186, 1190 (6th Cir. 1990). 121. 20 U.S.C. § 1415(c). 122. 20 U.S.C. § 1415(e)(3). 123. Honig v. Doe, 484 U.S. 305, 108 S. Ct. 592 (1988). 124. 20 U.S.C.A. § 1415(e)(2). 125. Georgia Ass’n of Retarded Citizens v. McDaniel, op. cit. 126. 20 U.S.C.A. § 1400; See also Honig v. Doe, op. cit. 127. See Eyer, op. cit. 128. 20 U.S.C. § 1414 (d)(1)(A). 129. Ibid. 130. Ibid. 131. Ibid. 132. Ibid. 133. 20 U.S.C. § 1414(d)(1)(A). 134. 20 U.S.C. § 1414(d)(1)(A)(ii). 135. Stacey L. Chamberlin and Brigham Narins (Editors), and Brian Hoyle, “Gale-Neuro” (Gale Encyclopedia of Neurological Disorders, Westlaw, 2007), p. 1. 136. Ibid. 137. Ibid. 138. See 34 C.F.R. § 300.7(a) (1). 139. Capistrano Unified School District v. Wartenberg, 59 F.3d 884 (9th Cir. 1995). 140. Westchester Area School District v. Bruce C., 194 F. Supp. 2d 417 (E.D. Pa. 2002). 141. Austin Independent School District v. Robert M., 168 F. Supp. 2d 635 (W.D. Tex. 2001). 142. Springer v. Fairfax County School Board, 134 F.3d 659 (4th Cir. 1998). 143. 42 U.S.C. § 12101 (1990). 144. 20 U.S.C. § 1412(a)(5)(A); see also 34 C.F.R. § 300.551. 145. 34 C.F.R. §§ 300.551, 300.552(d). 146. 34 C.F.R. § 300.551. 147. See Zirkel, op. cit. 148. Devries v. Fairfax County School Board, 882 F.2d 876, 878 (4th Cir. 1989); Daniel R. R. v. State Board of Education, 874 F.2d 1036, 1044 (5th Cir. 1989); A. W. v. Northwest R-1 School District, 813 F.2d 158, 162 (8th Cir. 1987); Roncker v. Walter, 700 F.2d 1058, 1063 (6th Cir. 1983), cert. denied, 464 U.S. 864, 104 S. Ct. 196 (1983). 149. Daniel R. R. v. State Board of Education, op. cit. 150. Ibid., p. 1048. 151. Roncker v. Walter, 700 F.2d 1058 (6th Cir. 1983). 152. Ibid., p. 1062. 153. Ibid., p. 1063. 154. Daniel R. R. v. State Board of Education, 874 F.2d at 1048.
629
155. Sacramento City School District v. Rachel H., 14 F.3d 1398 (9th Cir. 1994). 156. Age v. Bullitt County Schools, 673 F.2d 141, 145 (6th Cir. 1982); Roncker v. Walter, op. cit. 157. Lachman v. Illinois State Board of Education, 852 F.2d 290, 296 (7th Cir. 1988), cert. denied, 488 U.S. 925, 109 S. Ct. 308 (1988); Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. at 207, 102 S. Ct. at 3051. 158. Lachman v. Illinois State Board of Education, 852 F.2d at 297. 159. Public Law 101-476, 20 U.S.C. § 1422(5)(b) (1990). 160. Mavis v. Sobol, 839 F. Supp. 968, 971 (N.D.N.Y. 1993). 161. Oberti ex rel. Oberti v. Board of Education of Clementon School District, 995 F.2d 1204, 1207 (3rd Cir. 1993); see also Sacramento City School District v. Rachel H., op. cit. 162. 20 U.S.C. § 1414(d)(1)(A)(vi). 163. 34 C.F.R. § 300.346 (a)(3) (1996). 164. 20 U.S.C. § 1413(a)(4). 165. 34 C.F.R. § 300.452. 166. K.R. v. Anderson Community School Corp., 81 F.3d 673 (7th Cir. 1996), cert. granted and vacated, 117 S. Ct. 2502 (1997). 167. School Committee of Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359, 105 S. Ct. 1996 (1985). 168. 20 U.S.C. § 1415(e)(2). 169. Muller v. Committee on Special Education of the East Islip Union Free School District, 145 F.3d 95 (2d Cir. 1998). 170. Florence County School District Four v. Carter, 510 U.S. 7, 114 S. Ct. 361 (1993). 171. Ibid., 114 S. Ct. at 363. 172. 20 U.S.C. § 1412(a)(10)(C). 173. See Huefner, op. cit., p. 1119. 174. Holland v. District of Columbia, 71 F.3d 417 (D.C. Cir. 1995); Florence County School District Four v. Carter, 510 U.S. 7, 114 S. Ct. 361 (1993). 175. Greenland School District v. Amy N., 358 F.3d 150 (1st Cir. 2004). See: 20 U.S.C.A. § 1412 (a)(10)(c)(ii). 176. Frank G. v. Board of Education of Hyde Park, 459 F.3d 356 (2nd Cir. 2006). Petition for writ of certiorari to the U.S. Supreme Court was denied, 2007 WL 2982269 (2007). 177. Ibid. 178. Forest Grove School District v. T.A., 523 F.3d 1078 (9th Cir. 2008). 179. Ibid. 180. Zobrest v. Catalina Foothills School District, 509 U.S.1, 113 S. Ct. 2462 (1993). 181. Ibid., 113 S. Ct. at 2463 182. Foley v. Special School District of St. Louis County, 153 F.3d 863 (1998). 183. KDM v. Reedsport School District, 196 F.3d 1046 (9th Cir. 1999). 184. 20 U.S.C. § 1401(17). 185. Irving Independent School District v. Tatro, 468 U.S. 883, 104 S. Ct. 3371 (1984). 186. Public Law 94-142, 20 U.S.C. § 1401(17). 187. Irving Independent School District v. Tatro, op. cit. 188. Ibid., 468 U.S. at 894, 104 S. Ct. at 3378.
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Chapter 11
Rights of Students with Disabilities
189. T. G. v. Board of Education of Piscataway, 576 F. Supp. 420 (D.N.J. 1983). 190. Alamo Heights Independent School District v. State Board of Education, op. cit. 191. Metropolitan Government v. Tennessee Department of Education, 771 S.W.2d 427, 429 (Tenn. Ct. App. 1989). 192. Corbett v. Regional Center for the East Bay, Inc., 676 F. Supp. 964 (N.D. Cal. 1988), injunction modified, 699 F. Supp. 230 (N.D. Cal. 1988). 193. S-1 v. Turlington, op. cit. See also School Board of Prince William County v. Malone, 662 F. Supp. 978 (E.D.Va. 1984), aff’d, 762 F.2d 1210 (4th Cir. 1985). 194. Jackson v. Franklin County School Board, 765 F.2d 535 (5th Cir. 1985); Victoria L. v. District School Board of Lee County, 741 F.2d 369 (11th Cir. 1984). 195. Honig v. Doe, op. cit. 196. Anne Proffitt Dupre, “A Study in Double Standards, Discipline, and the Disabled Student,” 75 Washington Law Review, p. 1 (January 2000). 197. 20 U.S.C. § 1415. 198. 20 U.S.C. § 1412 (1) (A). 199. 20 U.S.C. § 1412(2)(B). 200. M. C. v. Central Regional School District, 81 F.3d 389 (3rd Cir. 1996). 201. Carlisle Area School District v. Scott, 62 F.3d 520 (3rd Cir. 1995). 202. M. C. v. Central Regional School District, op. cit. 203. Ibid. 204. Ibid. 205. Ridgewood Board of Education v. N. E., 172 F. 3d 238 (3rd Cir. 1999). 206. M.C. v. Central Regional School District, op. cit. 207. Smith v. Robinson, 468 U.S. 992, 104 S. Ct. 3457 (1984). 208. Soroko v. Gosling, 26 IDELR 1135 (4th Cir. 1997). See Zirkel, op. cit., p. 330. 209. Correa v. Vance, 950 F. Supp. 118 (D. Md. 1996). 210. John T. v. Marion Independent School District, 173 F.3d 684 (8th Cir. 1999). 211. Arons v. New Jersey State Board of Education, 842 F.2d 58 (3rd Cir. 1988). 212. Erickson v. Board of Education, 162 F.3d 289 (4th Cir. 1998); Wenger v. Canastota Central School District, 146 F.3d 123 (2d Cir. 1998). 213. Eggers v. Bullitt County School District, 854 F.2d 892 (6th Cir. 1988).
214. 29 U.S.C. § 794. 215. Ibid. 216. Grove City College v. Bell, 465 U.S. 555, 104 S. Ct. 1211 (1984). 217. Ibid. 218. School Board of Nassau County v. Arline, 480 U.S. 273, 107 S. Ct. 1123 (1987). 219. 20 U.S.C. § 1687. 220. 29 U.S.C. § 705 (20)(B). 221. Bragdon v. Abbott, 524 U.S. 624, 118 S. Ct. 2196 (1998). 222. School Board of Nassau County v. Arline, op. cit. 223. Weixel v. Board of Education of the City of New York, 287 F.3d 138 (2d Cir. 2002). 224. Ibid. 225. Ibid. 226. 34 C.F.R. §§ 104.31-104.38, 227. See OCR Senior Staff Memo from LeGree S. Daniels, Assistant Secretary for Civil Rights, EHLR 307:01 (October 24, 1988). 228. See Bonnie Poitras Tucker, op. cit., pp. 474–475. 229. Ibid. 230. 34 C.F.R. § 104.35. 231. Ray v. School District of Desoto County, 666 F. Supp. 1524, 1529 (M.D. Fla. 1987). 232. Doe v. Dolton Elementary School District No. 148, 694 F. Supp. 440, 441 (N.D. Ill. 1988). 233. Ray v. School District of Desoto County, op. cit. 234. Ibid. 235. 20 U.S.C.A. § 1401(a)(1). 236. 34 C.F.R. § 300.5(b)(7). 237. Doe v. Belleville Public School District No. 118, 672 F. Supp. at 344–45 (S.D. Ill. 1987).
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Quoted Box Citations
John Rawls, “Distributive Justice: Some Addenda,” in Collected Papers of John Rawls, 1968, ed. by Samuel Freeman (Cambridge, Mass.: Harvard University Press, 1999), p. 165. Child with a Disability. Source: 67B Am.Jur.2d Schools § 403.
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CHAPTER 12
Tort Liability What usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not. —Oliver Wendell Holmes Jr.
CHAPTER OUTLINE ■
INTRODUCTION
■
DEFINITION OF A TORT
Bully Liability
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INTENTIONAL INTERFERENCE
Parental Liability
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Assault
THE TORT OF BULLYING
School District Liability
Battery
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DEFENSES FOR NEGLIGENCE
Infliction of Emotional Distress
Contributory Negligence
False Imprisonment
Comparative Negligence
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STRICT LIABILITY
Assumption of Risk
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NEGLIGENCE
Immunity
Standard of Conduct
Exculpatory Releases
The Reasonable Person
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EDUCATIONAL MALPRACTICE
Elements of Negligence
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SUMMATION OF CASE LAW
Duty
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RESEARCH AIDS
Standard of Care Proximate or Legal Cause Injury or Actual Loss
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632 ■
Chapter 12
Tort Liability
Introduction
Human beings bind themselves together in civil society for mutual advantage and protection that would not otherwise be afforded if they were left to fend for themselves in a state of nature. In their text, The Law of Torts, Seavey, Keeton, and Keeton have explained that “[a] primary purpose of primitive law was to preserve the peace and to prevent the use of force by one person against another or another ’s possession of property.” 1 The law today prescribes a standard of conduct that has its foundations in acceptable tradition and custom, which ensure personal rights against invasion by others, whether as individual groups or as governments. As our society has become more complex in this technological age with ever-increasing human and corporate interactions, the possibility of suffering injury at the hand of another has increased exponentially. Plucknett earlier observed these increasing social complexities and their impact on the law, noting: [T]he prominence and rapid growth of the law of torts in the last few generations is clearly associated with the sudden mechanism of contemporary life, and with the growth of large and wealthy businesses (necessarily carried on through fallible servants and agents) engaged in finance, insurance, transport and an endless variety of enterprises which are productive of torts and tort litigation.2
To this list may be added education—its importance to society engenders increasing human interactions, some of which may result in various transgressions and injuries leading to litigious controversies. Modern law acknowledges for each individual certain personal rights with regard to conduct that others must respect, and it prescribes a level of conduct by which each individual must in turn abide. Some of these rights arise through the execution of a contract between individuals, for the breach of which financial liability may result. The law also grants to each individual certain personal rights not of a contractual nature, such as freedom from personal injury and security of life, liberty, and property. The law imposes corresponding duties and responsibilities on each individual to respect the rights of others. If, by speech, act, or other conduct, a person
fails to respect these rights, thereby damaging another, a tort has been committed, and the offending party may be held liable.
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Definition of a Tort
A tort is a civil wrong independent of contract. It may be malicious and intentional, or it may be the result of negligence and disregard for the rights of others. Keeton, Dobbs, Keeton, and Owen define a tort as a “civil wrong, other than for breach of contract, for which the court will provide a remedy in the form of an action for damages.”3 Perhaps the best and most concise definition is cited in Keeton et al.: “A tort is an act or omission which unlawfully violates a person’s right created by the law, and for which the appropriate remedy is a common law action for damage by the injured person.”4 The central idea that best defines a tort is the standard of reasonableness in actions toward others; therefore, an unreasonable interference with the interests of others that causes injury is a tort.5
A tort is a civil wrong, that is, something that is wrong, but not criminally wrong. It is any one of a miscellaneous collection of misdeeds that lay the basis for a suit for damages. If you sneeze and rear-end my car, it is a tort and not a crime. One type of action, for negligence, came to outweigh all the others in importance. The lesser torts include assault and battery, trespass to land, and libel and slander. —Lawrence M. Friedman
An action in tort compensates private individuals for harm caused them by the unreasonable conduct of others. Social norms have provided the basis for legal precedent in the determination of that which is considered unacceptable or unreasonable conduct. A legally proper relationship between two persons can be breached by injury caused by an act or an omission to act on the part of either party. The word tort is derived from the Latin word tortus, or “twisted.”6 In personal relationships, the term twisted is applied to activity that deviates from a normally acceptable pattern of behavior.
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Intentional Interference
633
Types of Torts Tort
Intentional Interference
Strict Liability
A tort is different from a crime and emanates from a separate and distinct body of law. A civil action for tort is initiated and maintained by the injured party for the purpose of obtaining compensation for the injury suffered, whereas in a criminal proceeding the action is brought by the state to protect the public from actions of a wrongdoer. In a criminal case, the state prosecutes, not to compensate the injured person, but rather to protect the public from further wrongful acts. Since criminal law does not, and was never intended to, compensate an injured individual, social justice demanded the birth of the action in tort. Tort can be generally divided into four categories: (1) intentional interference, (2) strict liability, (3) negligence, and (4) defamation. This chapter addresses the first three of these categories, reserving defamation for Chapter 13. Each of these can be applied to cases in public schools where pupils, teachers, and/or administrators are involved.
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Intentional Interference
Torts of intentional interference can be divided into at least four “harm” categories: (1) harm to the person, (2) harm to dignity, (3) harm to property, and (4) harm to economic interests. The first of these, harm to the person, has four aspects: assault, battery, infliction of emotional distress, and false imprisonment. In school law, intentional interference cases are relatively few and primarily concern issues of “harm to the person,” injuries to students and teachers. “Harm to dignity” occasionally comes into play crossing the boundaries of various torts that are not necessarily mutually exclusive, such as defamation that can include assault and emotional distress.7
Negligence
Defamation
An intentional interference tort may result from an intended act, whether accompanied by enmity, antagonism, or maliciousness or by no more than a good-natured practical joke. 8 With this type of tort, it is not necessary for the wrongdoer to be hostile or desire to do harm to the injured party. Even when a person does not plan to injure another but proceeds intentionally to act in a way that invades the rights of another, he or she commits an intentional tort. According to the Restatement (Second) of Torts, “intent” has reference to the consequences of an act rather than to the act itself.9 Intent is, however, not limited to consequences that are desired. If the actor knows that the consequences are certain, or substantially certain, to result from an act and still goes ahead, he or she is treated by the law as if he or she had, in fact, desired to produce the result.10 If the results are less certain or if what was originally intended becomes less direct, then intent is less certain and tends to be shaded toward recklessness. If the likelihood that the act will produce the intended result decreases even further, then the tort may emerge as one of ordinary negligence instead of one of intentional interference.11 The following statements illustrate the difference between intentional interference and reckless or negligent conduct: ■
■
A throws a bomb into B’s office for the purpose of killing B. A knows that C, B’s stenographer, is in the office. A has no desire to injure C but knows that his act is substantially certain to do so. C is injured by the explosion. A is subject to liability to C for an intentional tort. On a curve on a narrow highway, A, without any desire to injure B or belief that she is substantially certain to do so, recklessly drives her automobile in an attempt to pass B’s car.
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Chapter 12
Tort Liability
As a result of this recklessness, A crashes into B’s car, injuring B. A is subject to liability to B for her reckless conduct but is not liable to B for an intentional tort. Thus, for intent to exist, the activity of an individual must, with substantial certainty, be the result of his or her act. If one does not know with substantial certainty the result of an act and injury results, then it is negligence instead of an intentional tort.
ASSAULT An intentional tort can be committed even if no physical “touching” takes place. Assault and battery are classified as intentional torts. Keeton et al. say that “[a]ssault and battery go together like ham and eggs.” The difference between them is the difference between physical contact and the mere apprehension of it. One may exist without the other.12 Assault, as distinguished from battery, essentially constitutes a mental rather than a physical violation. Assault may result in damages for fright, humiliation, emotional distress, and physical illness. Mental distress inflicted intentionally may be of such nature as to justify recovery of damages.13 To have assault, there must be an “overt act or an attempt, or the unequivocal appearance of an attempt, to do some immediate physical injury to the person of another.”14 The overt act must be a display of force or menace of violence of such a nature as to cause reasonable apprehension of immediate bodily harm. Assault is when a person stands within striking distance of another and with sword drawn says, “I intend to run you through.” Such words and acts may be sufficient to put the plaintiff in immediate apprehension of imminent harm, and it is apparent that the offender has the present ability to effectuate the harm. Thus, an intentional tort can be consummated by an act that, while not involving physical contact, places a person in immediate fear that such action will transpire.
BATTERY Technically, battery is an intentional tort that comes about through physical contact. It is battery to injure a man in his sleep, even though he does not discover the injury until later, whereas it is an assault to attempt to shoot him
while he is awake, miss him, but frighten him.15 In both cases, a person’s interests are invaded. If a wrongdoer swings a bottle, intending to strike the plaintiff, and the plaintiff sees the movement and is apprehensive for his own safety, there is assault; if the attack is consummated and the blow is actually landed, both assault and battery are present. Moreover, a school district may be liable for failing to prevent or allowing conditions to exist for the battery of one student upon another. In such a case in Louisiana, the court awarded comparative civil damages divided between the school district and the offending student. The court explained the civil law of battery in that state as follows: A battery is harmful or offensive contact to another without that person’s consent done with intent to cause the person to suffer such a contact. In a civil battery case, the burden of proof is on the plaintiff to establish that a battery was committed. The law is well settled that in actions for damages for battery, a plaintiff cannot recover if the evidence establishes he was at fault in provoking the difficulty in which he is injured, unless the person responding uses excessive force. . . . [T]he proper standard to evaluate a defendant’s action is whether the conduct was that generally required of a reasonable man under like circumstances.16
Teachers accused of assault and battery for administering corporal punishment are usually given considerable leeway as to the reasonableness of their action. In one case, the court explained the rule of law: “To be guilty of an assault and battery, the teacher must not only inflict on the child immoderate chastisement, but he must do so with legal malice or wicked motives or he must inflict some permanent injury.”17 Cases involving assault and battery by a teacher usually result from a teacher’s attempt to discipline a child. The courts generally allow wide latitude for teachers in the chastisement of pupils, presuming that the teacher is innocent, has acted reasonably, and has done his or her duty until the contrary is proved. The courts still uphold the ancient doctrine of in loco parentis, which holds that the teacher stands in place of the parent and in such capacity has the right to chastise a pupil. The teacher’s prerogatives are, of course, limited to the jurisdiction of the school and are not unlimited.
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Intentional Interference
Within these boundaries, the teacher may require pupils to abide by all reasonable commands and may inflict reasonable corporal punishment to enforce compliance. One court stated the situation in this manner: In the school, as in the family, there exists on the part of the pupils the obligation of obedience to lawful commands, subordination, civil deportment, respect for the right of other pupils, and fidelity to duty. Those obligations are inherent in any proper school system, and constitute, so to speak, the common law of the school.18
Courts do, however, make it quite clear that a teacher may be guilty of assault and battery if chastisement is cruel, brutal,19 excessive,20 or is administered in anger or insolence.21 In a notable 1853 case, the court said that a teacher was not justified in beating a scholar so severely as to wear out two whips, strike two blows to the head with fists, and kick the scholar in the face, all because he misspelled a word and refused to try again.22 Chastisement of a pupil may become assault and battery if the teacher does not administer the punishment reasonably.23 Criteria used by courts to identify excessive punishment include: ■ ■ ■ ■ ■ ■ ■
proper and suitable weapon; part of the person to which it is applied; manner and extent of the chastisement; nature and gravity of the offense; age of the pupil; temper and deportment of the teacher;24 and history of the pupil’s previous conduct.
Both assault and battery may be criminal wrongs as well as torts where statutes so require. Criminal statutes usually define assault as attempted battery, requiring present ability. However, the reasoning pertaining to individual statutes may or may not have application to tort law. Plaintiffs alleging injuries for intentional torts have increasingly resorted to federal statutory law, seeking damages under Section 1983 of the Civil Rights Act rather than attempting to obtain damages by means of common law tort.25 Corporal punishment is normally involved, and plaintiffs in Section 1983 cases have a great number of precedents on which to rely regarding acts that are conscience shocking, arbitrary, or egregious.26
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INFLICTION OF EMOTIONAL DISTRESS In keeping with the theory that every person who is injured should have recompense, modern courts have had a tendency to recognize, as a separate tort, interference with peace of mind, the infliction of mental or emotional anguish. In such cases, it is necessary and quite difficult to prove mental suffering. The courts have been unable to precisely delineate between actual tortious actions and what may be considered everyday rough language or immoderate personal behavior that hurts one’s feelings but is not so severe as to create an action in tort. One cannot recover damages simply because of hurt feelings.27 To sustain a claim of intentional infliction of emotional distress, a plaintiff must prove four things: (1) that defendant’s conduct was outrageous; and (2) that the defendants acts were intentional or in reckless disregard of the probability of causing emotional distress. Then the plaintiff must further prove that he or she (3) suffered severe or extreme emotional distress; and (4) the defendant’s act was the actual proximate causation of the emotional distress resulting from the outrageous conduct.28 To qualify as “outrageous,” the conduct must be so extreme in degree as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized community. Some courts have held that where an act is malicious, as distinguished from being merely negligent, there may be recovery for mental anguish even though no physical injury results.29 However, cases involving actions for mental anguish and suffering are easier to prove before a jury if the emotional distress has produced some visible or identifiable physical harm.
FALSE IMPRISONMENT Another intentional tort is false imprisonment, sometimes called false arrest. Relatively few school cases have occurred in this area, but the general rule is that an unauthorized person cannot detain or physically restrain the movements of another. The tort of false imprisonment involves an unlawful restraint on freedom of movement or personal liberty. False imprisonment has two essential elements that must be proved by the plaintiff: (1) detention or restraint against a person’s will, and (2) unlawfulness of
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the detention or restraint.30 A teacher or school administrator may be concerned as to whether a student could institute an action for false imprisonment for staying after school or being confined for disciplinary purposes to a certain schoolroom or space as punishment for infraction of school rules. A cause of action for false imprisonment must also be sustained by the plaintiff showing two things: first, that detention or restraint was against his or her will and, second, that the detention or restraint was unlawful. In few instances can it be maintained that the act of a teacher in restraint of a child could be categorically classified as unlawful. The teacher in holding a child in a classroom or other school space would, by the act, violate a state law or school regulation. The key word here is unlawful. Certain persons are immune from liability because they have a special legal relationship with the person who is restrained. Judicial officers, attorneys, physicians, parents, and school teachers, generally, have such legal status. School teachers, acting in loco parentis, have the authority to place reasonable restraints on students’ physical liberty. That which is “reasonable” is a necessary qualifier since the teacher and even the parent could restrict a child’s freedom to an extent that exceeds the bounds of their special privileges. To be reasonable, detention must be relatively brief in terms of minutes or a very few hours. Such penalty must be in good faith, without malice, and for the best interests of the student and/or the school.31 The point is illustrated by a Michigan case where the court said that, “[The] principal was engaged in [a] discretionary act in keeping students in his office, and had individual immunity from action for false imprisonment resulting in keeping student in [the] office, absent allegations that [the] principal was not acting in [the] course of [his] employment or that he maliciously or intentionally falsely imprisoned student.”32 Therefore, normally, a false imprisonment claim is not viable in public schools where a rule regarding retention of students is reasonable and the application and enforcement of the rule is in accord with statute, common law and, of course, constitutional law. A rule requiring tardy pupils to be detained in the principal’s office or any particular place at school is reasonable if enforcement takes due regard for the circumstances with
consideration for the pupil’s health, comfort, age, and mental and physical condition. In two extreme cases where students were actually held in jail cells for disrupting school tours of prisons, the courts held that “false imprisonment had not occurred because the teachers had not acted unlawfully, acting within their authority to regulate student conduct.” Moreover, the teachers were clothed with qualified or conditional privilege to control the students and they had acted within the bounds of that authority.33 Generally, however, there are very few cases of false imprisonment in school law because first, seldom do situations occur that could legitimately lead a court or jury to conclude that the student had been detained in the technical sense of false imprisonment, and, second, evidence must show that teachers and school officials acted unlawfully, exceeding their privileges to exercise reasonable control over student’s conduct.34
School District Liable in Damages for Intentional Act of Teacher Resulting in Emotional Harm to Child
Spears v. Jefferson Parish School Board Court of Appeals of Louisiana, 1994. 646 So.2d 1104.
GOTHARD, Judge. This appeal arises out of an action filed by the plaintiffs, Joyce and Samuel Spears individually and on behalf of their minor son, Justin, for injuries sustained while Justin was a kindergarten student at Woodland West Elementary School, a part of the Jefferson Parish School System. Liability of the defendant was established by a joint stipulation of the parties, and the matter went to trial on the issue of quantum. In due course the trial court rendered judgment, accompanied by written reasons, in favor of the plaintiffs. . . . On February 28, 1989, Justin Spears was a kindergarten student at Woodland West Elementary
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Intentional Interference
School. Because it was a rainy day, the students were seated on the floor of the Cafeteria watching a movie during their regularly scheduled Physical Education class under the supervision of Coach John Brooks and Coach Johnny Peyton. Justin and two of his friends began to be slightly disruptive. At that time Coach Brooks called the boys over to sit near him. The boys began to play with his hair and his ears. Coach Brooks told the boys that if they did not stop annoying him he would “kill them.” Because the coach was experiencing management problems with the three boys, he took two of them into an adjacent office with him while he did some paperwork, leaving the rest of the class to watch the movie. Justin stayed behind talking to Coach Peyton. The boys began asking Coach Brooks how he would kill them. Coach Brooks told them he would probably tie the jump rope around their neck and push them off a chair in the office. Because Justin was talking to Coach Peyton during this discussion, Coach Brooks asked the boys if they wanted to play a trick on Justin, and they agreed. The testimony differs as to the events that followed, but it is clear that Coach Brooks led Justin to believe that his friends were dead. He told Justin he had hanged them by their neck with the jump rope, and at least one of the boys was lying on the floor pretending to be dead. When Justin saw the boy lying there he became upset and began to cry. Coach Brooks told Justin it was just a joke and that the boys were not really dead. Plaintiffs introduced live testimony from Justin and both of his parents. They also introduced depositions from two psychologists who treated Justin. According to the evidence, Justin was a normal, well-adjusted five-year-old before the incident. However, in the weeks following the incident he began to exhibit infantile behavior. He refused to go to the bathroom alone and refused to wipe himself. He was afraid that Coach Brooks would come out of the mirror in the bathroom and harm him. Justin would no longer sleep in his own room. He became overly dependent on his mother and was not comfortable when she was out of sight. Justin was treated by Dr. Lynne Shwery, a psychologist at Children’s Hospital. Dr. Shwery testified at her deposition that she treated Justin from the time of the incident until he moved with his family to Virginia in June, 1991. She opined that Justin had
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“experienced an event that was outside the range of usual human experience and that would be markedly distressing to almost anyone.” She diagnosed Justin as having Post-Traumatic Stress Disorder and explained that Justin was fearful and anxious. He had come to the realization that the world was not a safe place and that all adults could not be trusted. From the time of the family’s relocation to Virginia in 1991, Justin was treated by Dr. Tonya Fridy; that treatment was still ongoing at the time of trial. Dr. Fridy’s professional diagnosis concurred with that of Dr. Shwery. Additionally, Dr. Fridy stated that Justin had separation anxiety and social phobia disorder and would probably need three to five more years of therapy. The defendant offered testimony from their own expert, Dr. Vincent Carbone. He conducted an evaluation of Justin and concluded that Justin was “a very anxious child who was very fearful of things in his environment,” but Dr. Carbone did not agree that Justin was suffering from Post-Traumatic Stress Disorder. After considering all of the evidence, the trial court rendered judgment in favor of plaintiff, accompanied by written reasons which included the finding that “this child has been effectively robbed of a normal, carefree childhood due to the careless actions of the coach.” In brief to this court the defendant assigns nine errors which can be placed into three arguments. First, it is argued that the trial court erred in its findings of fact concerning the magnitude of Justin’s injuries, and thus the award of damages is excessive. Second, it is argued that the award of loss of consortium to the parents is incorrect. The final argument concerns an evidentiary ruling on the defendant’s assertion that Justin’s parents failed to mitigate the damages. . . . Given the circumstances of this case and the standard of review mandated by the Supreme Court, we do not find the trial court’s award of general damages in the amount of $100,000.00 to Justin was an abuse of discretion. For the same reasons we cannot find that the award of $2,160.00 for future therapy was an abuse of discretion. Therefore, we will not overturn those portions of the judgment. The defendant also complains of the award of $5,000.00 each to Justin’s parents for loss of consortium. . . .
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Loss of consortium in the context of the parent/child relationship means loss of the aid, assistance and companionship of the child, or loss of affection, society and service. . . . It is clear from the record that the incident adversely affected the relationship between Justin and his parents. The child, who was developing normally before the incident, became a behavior problem as a direct result of defendant’s actions. Injuries incurred by the child rendered the family life difficult afterward since Justin no longer wished to go on family outings. Consequently, we do not find error in the award on loss of consortium damages to the parents. . . . For the foregoing reasons the judgment of the trial court is affirmed. Costs are assessed to the appellant. Affirmed.
CASE NOTE Foreseeable Intentional Acts of Third Parties. Where a male high school student with a record of misbehavior knocked a female student unconscious and broke her jaw, a Tennessee court held the school district liable for the third-party assault. In such extraordinary cases, a school district may be liable for what may be classified as a foreseeable intentional tort. Dean v. Weakley County Board of Education, 2008 WL 948882 (Tenn. Ct. App. 2008).
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who breaks must pay,” regardless of whether the injury is knowingly or negligently caused.35 Therefore, strict liability is often referred to as liability without fault. Strict liability means “liability that is imposed on an actor, apart from either (1) an intent to interfere with a legally protected interest without legal justification for doing so, or (2) a breach of a duty to exercise reasonable care, i.e., actionable negligence.”36 Strict liability arises as a result of the abnormal danger37 of the activity itself and the risk that it creates to those in its vicinity.38 To determine whether an activity is ultrahazardous or “abnormally dangerous” requires asking “whether the risk created is so unusual, either because of its magnitude or because of the circumstances surrounding it, as to justify the imposition of strict liability for the harm that results from it, even though it is carried on with reasonable care.” 39 The Restatement (Second) of Torts has set out six factors for determining whether an activity is abnormally dangerous: (a) existence of a high degree of risk of some harm to the person, land or chattels of others; (b) likelihood that the harm that results from it will be great; (c) inability to eliminate the risk by the exercise of reasonable care; (d) extent to which the activity is not a matter of common usage; (e) inappropriateness of the activity to the place where it is carried on; and (f) extent to which its value to the community is outweighed by its dangerous attributes.40
Strict Liability
Generally, liability for tort has been imposed with regard to “fault” on the part of the defendant. Both intentional interference and negligence are based on the supposition that someone was injured at the fault of another party. However, cases have arisen in which a person has been injured through no actual, identifiable fault of anyone. Such cases have forced some courts to hand down damage awards based on the strict liability of the defendant. In these instances, a person may be liable even though he or she is not strictly at fault for the other party’s injury. This rule was adopted in order to place the damages on the person best able to bear the burden. The defendant’s acts are not as important in these cases as the injury and suffering of the injured person. Underlying this type of decision is the older social justice reasoning requiring that “he
All of these factors are important in consideration, but not all are required, and one is not particularly more important than the others.41 The keeping of dangerous animals in domestic situations has historically been a source of strict liability litigation. Keeton et al. observe: [t]he keeper of a wild or abnormally dangerous domestic animal is subject to strict liability even in the absence of his negligence in its custody because by keeping it he introduces into the locality a danger that is not only uncommon but also unnecessary to satisfy any social purpose.42
The prevailing view is that both licensees and invitees are entitled to recovery if in coming onto another property they are exposed to an abnormally dangerous animal.43 The Restatement (Second) of Torts gives several illustrations of situations involving animals that could possibly be
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Negligence
related to schools. Take the following situations as examples: ■
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A keeps on his premises a tame bear so chained as to make it highly improbable that it will escape. A permits B, a student, to walk through his premises. While B is walking along a path in the vicinity of which the bear is chained, the bear is so infuriated by the teasing of other uninvolved students who have trespassed on A’s land that it pulls up the stake by which it is confined and attacks B. A is subject to liability to B.44 A keeps in her home, effectively chained, a fighting pit bull dog which is extremely fierce. B, a student and a friend of A, unreasonably believing that the dog would not attack persons familiar to it, unchains it and takes it to school, whereupon the dog attacks C. A is subject to liability to C.45
An incident quite similar to the latter situation did occur in a 1992 Ohio case, but the injured student sued the school district for negligence, claiming that the school district rather than the owner of the dog had breached its duty to protect the students. The court held that the school district was not liable because the school’s common law duty of care did not require constant supervision of the school grounds, nor could the school officials have known that the dog was vicious and dangerous.46 A showing that the animal was abnormally dangerous could possibly have permitted the plaintiff to prevail against the dog’s owner in a strict liability action. Although strict liability cases reported by appellate courts involving activities in the public schools are scarce, the possibility of such actions nevertheless exists. For example, hazards in schools caused by laboratory experiments, shop activities, or field trips present possibilities of actions involving strict liability. However, this area makes up only a small element of the total tort liability picture in schools.
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Negligence
Negligence differs from an intentional tort in that negligent acts are neither expected nor intended, whereas an intentional tort can be both anticipated and intended. With negligence, 47
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a reasonable person in the position of the actor could have anticipated the harmful results. A teacher, for example, could not have reasonably foreseen that a hidden can in an incinerator would explode and injure a child when the teacher had sent the child to empty the classroom wastebaskets.48 An accident that could not have been prevented by reasonable care does not constitute negligence. Many times what first appears to be an accident can be traced to someone’s negligence; however, instances of pure accident, in which someone is injured and no one is actually at fault, do occur. For example, when a child closed a music room door, cutting off the tip of another student’s finger, the court found no negligence, merely an accident.49
STANDARD OF CONDUCT A negligent act in one situation may not be negligent under a different set of circumstances. No definite rules as to what constitutes negligence apply. The standard of conduct of the actor is the key. The conditions embracing a negligent act have been described in this fashion: It is fundamental that the standard of conduct which is the basis of the law of negligence is determined by balancing the risk, in the light of the social value of the interest threatened, and the probability and extent of the harm, against the value of the interest which the actor is seeking to protect, and the expedience of the course pursued.50
In order to strike a balance between the threatened harm and the actor ’s conduct, 51 the court must establish a standard by which such activity can be measured. In attempting to set boundaries for negligent acts committed in different factual situations, the courts have developed the reasonableness theory. For negligence to be present, someone must sustain an injury resulting from an “unreasonable risk” taken by another person. To determine unreasonableness, the courts personify the test in terms of the “reasonable person.”
THE REASONABLE PERSON The reasonable person has been described by different courts as a prudent person, a person of average prudence, a person of ordinary sense using ordinary care52 and skill, and a reasonably
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prudent person. The reasonable person is an ideal, a model of conduct, and a community standard. The model for the reasonable person, although a community ideal, varies in every case. His or her characteristics are: (1) the physical attributes of the defendant; (2) normal intelligence; (3) normal perception and memory with a minimum level of information and experience common to the community; and (4) such superior skill and knowledge as the actor has or holds himself or herself out to the public as having.53 Although this standard of behavior provides a framework for the whole theory of negligence, the exact formula varies with the attributes of the persons involved and with the circumstances. The reasonable person then has the same physical characteristics as the actor, and the acts in question are measured accordingly. Correspondingly, the person who has a disability is not held to the same standard as the person without physical infirmities. The courts have also made allowances for the weaknesses or attributes connected with the gender54 and age55 of the individual. The courts have not, however, been so lenient with individuals who have mental deficiencies. The courts have traditionally held that a person with less mental ability than an average person must adjust and conform to the rules of society. The courts give no allowance for subnormal mentality, but if a person is actually insane, a more convincing argument can be made for allowing for the particular incapacity.56 One such case illustrating this point of law occurred when a junior high school pupil entered the school and shot and killed the principal and wounded three other people, including a teacher and two students. The student was ruled criminally insane, but the wounded teacher and a student filed a civil action in tort. The court found that although a person is criminally insane, civil
liability in damages is an appropriate remedy. The court said, “American courts have unanimously chosen to impose liability on an insane person rather than leaving the loss on the innocent victim.”57
ELEMENTS OF NEGLIGENCE To have a valid cause of action for negligence, certain prerequisites must exist. These prerequisites are frequently divided into four categories: (1) a duty to protect others; (2) a failure to exercise an appropriate standard of care; (3) the existence of a causal connection between the act and injury, called proximate or legal cause; and (4) an injury, damage, or loss.
DUTY The routine of everyday life creates situations in which people constantly create risks and incur obligations for the safety of others. In negligence cases, a person has a duty to abide by a standard of reasonable conduct in the face of apparent risks.58 The courts generally hold that no duty exists when a defendant could not have reasonably foreseen the danger of risk involved. A duty owed by one person to another may well intensify as the risk increases. In other words, the duty to protect another is proportional to the risk or hazard of a particular activity. In certain school functions where risks are greater to children, a teacher has an increased level of obligation or duty to the children. For example, whenever children perform a dangerous experiment, the teacher has a greater obligation for the children’s safety than when he or she is merely supervising a study hall. One judge has explained the duty requirement in this way: Every person is negligent when, without intending any wrong, he does such an act or omits to take such a precaution that under the circumstances
Elements of Negligence
Duty
Standard of Care
Proximate or Legal Cause
Injury or Damage
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Negligence he, as an ordinary prudent person, ought reasonably to foresee that he will thereby expose the interest of another to an unreasonable risk of harm. A person is required to take into account such of the surrounding circumstances as would be taken into account by a reasonably prudent person and possess such knowledge as is possessed by an ordinary reasonable person and to use such judgment and discretion as is exercised by persons of reasonable intelligence under the same or similar circumstance.59
A school district generally has no duty to protect children who are injured after leaving school grounds without permission. However, a California court ruled that while a school district is not liable for injuries by a truant under all circumstances, a school district may be legally responsible if negligent supervision of the student while on school grounds was the proximate cause of the injuries that occurred off school premises.60
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and all his or her subsequent acts must be performed reasonably. Because of this requirement, passersby in many situations will not assist victims of auto wrecks or other mishaps. Some states, in order to encourage more humanitarian responses and to protect well-meaning rescuers, have enacted laws that protect the “good Samaritan” from liability. Although a teacher has no more duty than anyone else to be a “good Samaritan” to the general public, he or she does have an obligation or duty to help a student under his or her jurisdiction when injured at school. Because of the teacher–student relationship, a teacher may be liable for an omission to act as well as for an affirmative act. In such a case, though, the teacher is required to provide only such assistance as a person with the same training and experience in similar circumstances could reasonably provide.
STANDARD OF CARE TEACHER’S ABSENCE FROM CLASSROOM As a matter of law, a teacher is not negligent simply because he is absent from the classroom when a student is injured. A teacher’s duty of reasonable care has, at least, five relevant aspects: 1. The activity in which the students are engaged. 2. The instrumentalities with which they are working (band saws, dangerous chemicals, or merely pen, paper, and textbooks). 3. The age and composition of those students in the class. 4. The teacher’s past experiences with the class and its propensities. 5. The reason for and duration of the teacher’s absence. Generally, the law holds that a person is not liable for an omission to act when there is not a definite relationship between the parties; no general duty exists to aid a person in danger. For example, even though a moral duty may be present, no legal duty mandates that a mere bystander aid a drowning person. If, however, a person acts affirmatively to assist another in peril, he or she assumes a duty to the person,
A legally recognized duty requires the actor to conform to a certain standard of conduct or care. As the risk involved in an act increases, the standard of care required of the actor likewise increases.61 The standard of care of a woodshop teacher is, of course, greater than that of a school librarian because the risk of being injured while handling power tools is much greater than the risk of being injured while reading a book. Similarly, chemistry classes require a high standard of care.62 The standard of care required by the courts is not uniform among all persons. Children and aged persons have generally been given substantially more leeway in their activities than is allowed a normal adult. Even though both children and aged persons are liable for their torts, they are not held to the same standard as others without impairments of age. Although it is difficult to pinpoint precise standards for determining the reasonableness of a child because of the great variations in age, maturity, and capacity, the courts have nevertheless established as a subjective test that which is “reasonable to expect of children of like age, intelligence, and experience.”63 Although most courts appear to follow the preceding criteria for determining negligence
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of children, some courts have applied criminal law standards that prescribe the following criteria: ■
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Children between 1 and 7 years of age cannot be liable for negligence. They theoretically have no capacity for negligence.64 Children between the ages of 7 and 14 have a prima facie case for incapacity, but it can be rebutted. In other words, children in this age group are presumed not to be capable of negligence until proved to the contrary.
Different judicial jurisdictions may apply the common law regarding liability of minors in yet slightly different levels and categories. In Pennsylvania, for example, the courts have a standard-of-care measure that has three categories. A Pennsylvania court has explained: The law with respect to the standard of care applicable to minors is as follows: Both an adult and a minor are under an obligation to exercise reasonable care; however, the “reasonable care” required of a minor is measured by a different yardstick it is that measure of care which other minors of like age, experience, capacity and development would ordinarily exercise under similar circumstances. In applying that yardstick, we place minors in three categories based on their ages: minors under the age of seven years are conclusively presumed incapable of negligence; minors over the age of fourteen years are presumptively capable of negligence, the burden being placed on such minors to prove their incapacity; minors between the ages of seven and fourteen are presumed incapable of negligence, but such presumption is rebuttable and grows weaker with each year until the fourteenth year is reached.65
Yet authorities generally agree that although arbitrary age limits for negligence have been established by some courts, it is not a generally acceptable rule of law, and that in the present-day circumstances, a child of six may well assume many responsibilities. With the assumption of responsibilities is a necessity for exercising some degree of care. Stimulation from compulsory school attendance, radio, television, movies, and the Internet may invest a child with greater levels of sophistication and more advanced social cognizance. The arbitrary cut-off rule ignores these factors and can permit a child who may be
guilty of the most flagrant violation of duty to be precluded from any presumption of negligence. With regard to teachers and others in the teaching profession, the generally accepted standard of care would be that of a reasonably prudent teacher, not that of a reasonably prudent layperson. A New York court has put it this way, “The standard of care required of an officer or employee of a public school is that which a person of ordinary prudence charged with his duties would exercise under the same circumstances.”66 A Vermont court has defined the “standard of care” owed to a pupil by a teacher in the following manner: [A teacher’s] relationship to the pupils under his care and custody differs from that generally existing between a public employee and a member of the general public. In a limited sense the teacher stands in the parents’ place in his relationship to a pupil . . . and has such a portion of the powers of the parent over the pupil as is necessary to carry out his employment. In such relationship, he owes his pupils the duty of supervision.67
Although this is the prevailing view, some courts have held teachers to a lesser degree of care. These courts have said that a teacher can be charged only with reasonable care such as any person of ordinary prudence would exercise under comparable circumstances.
PROXIMATE OR LEGAL CAUSE “Proximate cause,” or “legal cause,” is the connection between the act and the resultant injury. The question the court will ask is “Was the injury a natural and probable consequence of the wrongful act, and ought it to have been foreseen in light of the attendant circumstances?”68 The Restatement (Second) of Torts explains the necessity of adequate causal relation in this way: “In order that a negligent actor shall be liable for another’s harm, it is necessary not only that the actor’s conduct be negligent toward the other, but also that the negligence of the actor be a legal cause of the other’s harm.”69 To establish proximate cause, there must first be a duty or obligation on the part of the actor to maintain a reasonable standard of conduct. In most negligence cases, however, the courts do not refer to proximate cause but rely solely on the duty or obligation of the defendant
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Negligence
and the standard of conduct required to avoid liability. Proximate cause as a criterion of liability has been used most often where some doubt exists as to whether the injured person was within the zone of obvious danger. 70 In these cases, the courts require that the negligence of the defendant be the “substantial” cause of the harm to the plaintiff. In other words, the cause must be substantial enough to lead reasonable people to conclude it is indeed the cause of injury. If the negligence is not a substantial factor in producing the harm, then no liability follows. The actor’s negligent act must be in continuous and active force up to the actual harm, and the lapse of time must not be so great that contributing causes and intervening factors render the original negligent act to be an unsubstantial or insignificant force in the harm. Therefore, a teacher may be relieved of liability for negligent conduct if some intervening act is sufficient to break the causal connection between the act and a pupil’s injury. For example, where a principal gave pupils permission to hold a race in a street and a “recklessly negligent” pupil ran into and injured a pedestrian, a court held that the causal relation was too remote to hold the principal liable.71
PROXIMATE OR LEGAL CAUSE There are three basic requirements that must be met to establish causation: (1) that “but for” the defendant’s negligence, the injury would not have occurred; (2) that the injury is the natural and probable result of the negligence; and (3) that there is no efficient intervening cause.
To break the chain of events causing injury, the intervening act must legally supersede the original negligent act. This rule is illustrated in a case in which a student was cleaning a power saw in shop class and another student turned on the switch, starting the machine in violation of safety rules. In this instance, the court held that the school board’s negligence in not having a guard over the belt drive was not the proximate or legal cause of the injury.72 A different result might have been reached, however, if the intervening act had been
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foreseeable and could have been prevented by reasonable care on the part of the defendant. For example, if a teacher sends a child on an errand across a busy street and a motorist, while driving carelessly, injures the child, both the teacher and the motorist may be liable. Here the intervening negligent act is not substantial enough to entirely overcome the original act. In an actual case demonstrating this point, a school bus driver was found negligent when a student was struck by an automobile after alighting from the bus. The driver of the automobile was also negligent; however, the court held that the negligent bus driver had a continuing obligation that was not ended by the negligence of the driver of the automobile. The automobile driver’s negligence did not constitute a sufficient break in the causal connection to be a defense for the bus driver and was not a superseding or intervening cause.73
INJURY OR ACTUAL LOSS A plaintiff, of course, cannot recover unless actual injury is suffered and the plaintiff is able to show actual loss or damages resulting from the defendant’s act. If the harm suffered is caused by more than one person, then damages may be apportioned among the tortfeasors. Sometimes, both school district and teacher are joined together by a plaintiff student in a case wherein it is claimed that the injury was caused by acts of both parties.
Teacher Did Not Breach His Duty by Not Having Unimpeded View of Students and Failing to Prevent Altercation in Which a Student’s Ankle Was Fractured
Medeiros v. Sitrin Supreme Court of Rhode Island, 2009. 984 A.2d 620.
Justice Flaherty, for the Court. Before this Court is an appeal by Michael Medeiros from a judgment as a matter of law entered in the Superior Court in favor of the defendants, Ronald Ford and the City of Newport.
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This case came before the Supreme Court for oral argument on November 3, 2009, pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not be summarily decided. After hearing the parties’ arguments and considering the memoranda submitted by counsel, we are satisfied that cause has not been shown, and we proceed to decide this appeal at this time without further briefing or argument. For the reasons set forth in this opinion, we affirm the judgment of the Superior Court. Medeiros fractured his ankle on February 1, 2002, when he was a twelfth-grade student at Rogers High School in Newport. The injury occurred after Medeiros’s tardy arrival to his Marine Occupations class, which was taught by defendant Ronald Ford. . . . Because the class has a practical component as well as traditional instruction, it is taught in both a classroom and an adjoining laboratory (lab) in which the students receive hands-on training in boat building and servicing. Instruction first began in the class, but to enter the classroom, students were required to first pass through the lab. The opening between the classroom and lab had no door, facilitating passage between the two rooms. Ford’s practice was to position himself near the entrance to the lab from the outside before his class was to begin. This allowed him to “monitor” the students coming into the Marine Occupations class and also to observe the students as they passed to their next classes. When it was time for this class to begin, Ford would look outside for any lingering students. He and the students in the lab would wait for any final students to enter and then they would all proceed directly from the lab to the adjoining classroom as Ford followed behind. Once in the classroom, Ford would take attendance and distribute any materials. He would also visually assess the students to determine whether any looked ill or appeared to be under the influence of drugs or alcohol and therefore not physically capable of working with equipment in the lab. Ford performed these duties from his desk within the classroom. From that vantage point, he had “limited” visibility into the lab and could not see its entrance. Because he lacked a view of the door connecting the lab to the outside, Ford purposely never oiled or greased the door, which
had an audible squeak that alerted him when the door was opened, possibly by a tardy student. On February 1, 2002, Ford, in keeping with his typical classroom practices, waited a few seconds after the bell for late students and then accompanied his students into the classroom. Approximately a minute and a half after the class period commenced, Ford had “pretty much” completed taking attendance. As he distributed information and forms to the students in the classroom, he “heard a very[,] very loud crash and a bang” as the lab door opened. He then “heard a commotion that sounded like people were moving at a rapid rate” for two to three seconds; this was followed immediately by a “crashing sound.” Ford left the classroom immediately and went into the lab, where he saw Medeiros lying on the ground. After promptly summoning the school nurse, Ford observed two of his students in the lab who had not been in the classroom: Brandon Burd and Jared Carlton. Ford had never before encountered any disciplinary issues with either of them. . . . Medeiros had arrived late to Marine Occupations class that day because, before he proceeded to class, he picked up his paycheck for an after-school job coordinated through the school. This was not the first time Medeiros had been late to class after retrieving his paycheck. Ford had discussed Medeiros’s tardiness with him, and he had never given him permission to be late. Medeiros said that he entered the classroom through the lab door and when he opened the door it squeaked but then crashed against the building because of the wind. As soon as he entered the lab, he saw two students, Burd and Carlton, at their lockers. Medeiros said that he had problems with Carlton in the past when Carlton “picked on” him. According to Medeiros, Burd “grabbed [his] paycheck out of [his] hand.” He attempted to retrieve the check from Burd, but Carlton “jumped on [his] back.” Medeiros attempted to hold on to a workbench but lost his balance and fell into a sawhorse. When he tried to get up from the floor, he realized that his foot was “pointing at a 90-degree angle” to his leg. About five seconds elapsed from the time Medeiros entered the lab until he fell to the floor. The school nurse came to Medeiros’s assistance. Medeiros’s father, Manuel Medeiros,
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Negligence
is a police officer for the City of Newport, and was working the day of his son’s accident. He received a call that his son had been injured at school and he then went to the high school. According to Officer Medeiros, Ford told him “[t]hat this type of behavior had happened before; he was surprised that something like that had not happened sooner.” Emergency vehicles transported Medeiros to the hospital. There, an emergency room physician diagnosed Medeiros’s injury as a fracture and dislocation of his ankle. Four days after the initial injury, Medeiros underwent a procedure to place “a steel plate and several screws” in his ankle so that, according to Medeiros, it would “heal straight.” On October 8, 2004, Medeiros filed suit against defendants, Ford and the City of Newport. In count 1 of his complaint, plaintiff alleged that Ford and the City of Newport owed him “a duty of reasonable care in the supervision of students within their charge,” that they breached that duty to exercise reasonable care, and that the breach was the proximate cause of plaintiff’s injury. In count 2, plaintiff alleged that the City of Newport had “a duty to exercise a reasonable degree of care in the hiring, training and supervision” of Ford, that it breached this duty, and that this breach proximately caused plaintiff’s injury. . . . . . . The plaintiff argued that Ford had a “duty to supervise students within his charge” as established through Ford’s testimony and the direction in the Teacher’s Handbook that “[s]tudents must be supervised at all times.” . . . The sole issue on appeal is whether the trial justice erred when he granted defendants [School, Teacher]; motion for judgment as a matter of law rather than submitting the case to the jury. . . . To maintain a cause of action for negligence, the plaintiff must establish four elements: (1) a legally cognizable duty owed by defendant to plaintiff; (2) breach of that duty; (3) that the conduct proximately caused the injury; and (4) actual loss or damage. . . . A plaintiff who asserts a cause of action based on negligence has the burden to “establish a standard of care and prove, by a preponderance of the evidence, that the defendant deviated from that standard of care.” . . . We have examined the evidence in the light most favorable to plaintiff and have drawn all reasonable
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inferences that support his claim. After doing so, we are of the view that, although Ford had a duty to supervise his students, plaintiff did not offer legally sufficient evidence that Ford breached this duty and, therefore, a reasonable jury could not find for plaintiff on the issue of negligence. As a result of the dearth of evidence to support an essential element of a cause of action for negligence, breach of a legally cognizable duty, we hold that the trial justice properly entered judgment as a matter of law in favor of defendants. The plaintiff argues that Ford had a duty of “[c]onstant supervision” of the students and was required “to remain” with them. . . . [F]or the purposes of this appeal, we will assume, without deciding, that Ford had a duty to supervise Medeiros, Burd, and Carlton under the particular facts in this case. . . . The defendants argue that plaintiff failed to present evidence establishing that Ford breached his duty to supervise. The defendants assert that expert testimony was necessary because Ford’s teaching environment encompassed two adjoining rooms, one of which contained “potentially dangerous equipment” and was “a situation unique even for every day teachers, let alone the typical juror.” The defendants argue that Ford’s teaching situation further departed from the “regular classroom setting” because it was imperative that Ford assess the students’ fitness to work with the dangerous equipment prior to allowing them to leave the classroom and enter the lab. Conversely, plaintiff asserts that expert testimony is unnecessary to establish either a standard of care or a deviation therefrom, because the jury may apply its “common knowledge and experience” to determine whether Ford breached his duty to supervise his students. After carefully reviewing the record, including Ford’s uncontradicted testimony about his classroom practices, it is our view that plaintiff failed to demonstrate in any way that Ford breached his duty of supervision. Although the handbook specifies the requirement that teachers must supervise the students “at all times,” plaintiff did not establish “a specific act or omission [of Ford] that indicated a deviation from the proper standard of care.” . . . For example, plaintiff did not offer any evidence about whether a teacher’s duty of supervision “at all times” requires the teacher’s constant physical presence
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with each student, as plaintiff suggests. Indeed, even the case law from other jurisdictions that plaintiff cites to support the proposed standard of care for teachers in supervising their students does not contemplate that a teacher’s physical absence from a student is necessarily a breach of the duty to supervise. . . . Additionally, plaintiff failed to offer any evidence about the supervisory expectations of teachers over late students, particularly in consideration of the unique nature of Ford’s duties and teaching environment in a shop-style class held in both a classroom and an adjoining lab, or of Ford’s deviation from the standard of care expected of teachers in such situations. . . . Although Officer Medeiros [injured student’s Father] testified that Ford told him after the incident that he was surprised that it had not happened sooner, there was no evidence to suggest that Ford knew or should have known that the three students were in the laboratory at that particular moment. Indeed, Ford testified that “[i]f they came in the door unannounced late intentionally, how would I know they were there?” Therefore, the handbook’s unclarified and somewhat aspirational directive to teachers to supervise students “at all times” and Ford’s uncontradicted testimony as to his long-standing classroom practices are insufficient to sustain plaintiff’s burden to any reasonable jury. Moreover, in our view, the cases plaintiff cites from other jurisdictions applying the standard of care “ ‘which a person of ordinary prudence, charged with [comparable] duties, would exercise under the same circumstances’ ” offer little guidance to establish that Ford breached his duty of supervision because they are factually distinct from this case. We therefore disagree with plaintiff’s argument that “ample” evidence existed on which a reasonable jury could find that Ford breached his duty of supervision because plaintiff did not present any evidence about how an ordinarily prudent teacher would act in the same circumstances. After reviewing the case law from other jurisdictions holding that teachers breached a duty to supervise, it is our opinion that these cases do not support a conclusion that plaintiff established sufficient evidence that a reasonable jury could find that Ford breached his duty. . . . After viewing the evidence in a light most favorable to the nonmoving party as we must, we
hold that there are no factual issues on which reasonable people might draw different conclusions. Accordingly, the plaintiff cannot prevail on a cause of action for negligence and the trial justice’s grant of the defendants’ motion for judgment as a matter of law was proper. For the foregoing reasons, we affirm the judgment of the Superior Court and remand the papers in this case to that tribunal. Court held for teacher.
CASE NOTES 1. Foreseeability. The test of foreseeability was well stated in McLeod v. Grant County School District No. 128, 42 Wash. 2d 316, 255 P.2d 360 (1953), a case that held the school district answerable in damages to a girl who was attacked in an unlighted room adjacent to the school gymnasium. The court said: Whether foreseeability is being considered from the standpoint of negligence or proximate cause, the pertinent inquiry is not whether the actual harm was of a particular kind which was expectable. Rather, the question is whether the actual harm fell within a general field of danger which should have been anticipated. 42 Wash. 2d at 321, 255 P.2d at 363.
The court further stated: The harm which came to appellant was not caused by the direct act of omission of the school district, but by the intervening act of third persons. The fact that the danger stems from such an intervening act, however, does not of itself exonerate a defendant from negligence. If, under the assumed facts, such intervening force is reasonably foreseeable, a finding of negligence may be predicated thereon. 42 Wash. 2d at 320, 255 P.2d at 362.
2. A school district will be held liable for foreseeable injuries proximately related to lack of supervision. Schools are under a duty to adequately supervise to prevent foreseeable injuries. A New York court has observed that obviously “school personnel cannot reasonably be expected to guard against all sudden, spontaneous acts that take place.” It applied this principle where a female student was murdered by a male student in a wooded area on school property. The court held that the school district was not liable for negligence because the school did not have “actual
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Negligence
or constructive notice” or knowledge of the danger to the decedent. Marshall v. Cortland Enlarged City School District, 697 N.Y.S.2d 395 (N.Y. App. Div. 1999). 3. Duty. The establishment of a duty is necessary to determine the corresponding standard of care the defendant owes to the plaintiff. The Oregon Supreme Court has explained: “Duty plays an affirmative role when an injured plaintiff invokes obligations arising from a defendant’s particular status or relationships, or from legislation, beyond the generalized standards that the common law of negligence imposes on persons at large. In cases based solely on common law negligence, ‘no duty’ is a defensive argument asking a court to limit the reach of these generalized standards as a matter of law. Duty remains a formal element of the plaintiff’s claim only in the sense that the plaintiff loses if the defendant persuades a court to phrase such a limit in terms of ‘no duty.’ ” Fazzolari v. Portland School District No. 1J, 303 Or. 1, 734 P.2d 1326 (1987). 4. Foreseeability and Duty. Foreseeability is a judgment about a course of events, a factual judgment that one often makes outside any legal context. It therefore ordinarily depends on the facts of a concrete situation and, if disputed, is decided as an issue of fact. “Duty” expresses the formal link between factual conduct and legal liability; its content must be located in the law, not in facts or in morals, manners, or other values unless these are incorporated into law. When “duty” refers to legally obligatory conduct, it provides a person injured by noncompliance a premise to claim a legal remedy; at other times, the concept is invoked defensively to limit the reach of liability even though harm was caused by conduct falling short of a legal obligation. Nylander v. Oregon, 292 Or. 254, 257–58, 637 P.2d 1286, 1287–88 (1981). 5. Care and Duty. The care required of the school district must be commensurate with the duty owed. Dangerous conditions near or about a school may require that the school district exercise extra care in protecting students from injury. Where a student was injured on a construction site near a school, the court held that daily warnings to students about the dangerous conditions were insufficient and that the
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school was negligent because it did not post school employees to guard the construction site. District of Columbia v. Royal, 465 A.2d 367 (D.C. 1983). Standard of Care Increases with Hazards. The school district has a duty to maintain hazardfree conditions for students. A Massachusetts court held that glass panels, which were not shatterproof, constituted a dangerous condition rendering the city of Boston liable when a student lacerated tendons and injured nerves in his hand when he put his hand through a glass panel. Johnson v. City of Boston, 22 Mass. App. Ct. 24, 490 N.E.2d 1204 (1986). Adequate Supervision. The adequacy of supervision is measured in terms of the required standard of care. To illustrate, a student was awarded damages for an injury occurring when the student slipped and cut his face on rocks or glass on the playground during a fight with another student. The court found that the playground had not been adequately supervised and that the school district had allowed a hazard to exist that could injure students. The presence of a hazard created a heightened standard of care. Laneheart v. Orleans Parish School Board, 524 So.2d 138 (La. Ct. App. 1988). Adequate Supervision on a Field Trip. In another example, a student on a field trip was hit by an automobile while crossing a street and sued two teachers for negligence. The court noted that the teachers had admonished the students to be careful in crossing the street, that the student was 13 years old, and that the street was not unreasonably dangerous. The court concluded that the teachers had not acted unreasonably and had no duty to personally escort students across streets. King v. Kartanson, 720 S.W.2d 65 (Tenn. Ct. App. 1986). Ultrahazardous Activities. Trampolining is specifically listed by Illinois statute as an ultrahazardous recreational activity requiring instruction and supervision by the teacher commensurate with the danger involved. For an instructor to be unprepared in teaching the use of a mini-trampoline and to omit to exercise proper supervision may render the defendant school district and instructor liable in damages for willful and wanton misconduct. Murray v. Chicago Youth Center, 224 Ill. 2d 213, 864 N.E.2d 176 (2007).
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Educators Have a Duty to Exercise Reasonable Care in Supervising Students During Dismissal Time After School Hours
Jerkins v. Anderson Supreme Court of New Jersey, 2007. 191 N.J. 285, 922 A.2d 1279.
Chief Justice ZAZZALI delivered the opinion of the Court. Nine-year-old Joseph Jerkins was dismissed from school on an early-dismissal day, walked off school grounds without an adult, and was struck by a car a few blocks from school later that afternoon. The accident paralyzed Joseph from the neck down. He and his family filed a complaint alleging that the school district and principal breached their duty of reasonable supervision with respect to Joseph’s dismissal from school. . . . In this appeal, we must determine whether schools have a duty of reasonable supervision during dismissal and, if so, we must define the scope of that duty. We find that because a school’s duty to exercise reasonable care for the children in its custody is integral to our public education system, the duty does not summarily disappear when the school bell rings. Accordingly, we hold that schools in New Jersey must exercise a duty of reasonable care for supervising students’ safety at dismissal. The duty requires school districts to create a reasonable dismissal supervision policy, provide suitable notice to parents of that policy, and effectively comply with the policy and subsequent and appropriate parental requests concerning dismissal. We therefore substantially affirm the decision of the Appellate Division and remand the matter to the trial court for further proceedings consistent with this opinion. Joseph was a third-grade student at the South Main Street elementary school in Pleasantville, New Jersey. He transferred to the school in October of 2000. The school is located on a busy thoroughfare and is part of the Pleasantville
School District, a “walking district” with no bus service. According to plaintiffs, Joseph regularly walked to and from school with either his adult brother, another family member, or a babysitter. On the morning of June 15, 2001, an earlydismissal day, Charles Jerkins, Jr., Joseph’s adult brother, walked Joseph to school. Joseph and his classmates were released from school at approximately 1:30 p.m. Joseph left school grounds unattended, played with friends, and, according to his father, may have gone swimming. Although the intervening events are unclear due to Joseph’s inability to recall details of that afternoon, at 3:50 p.m., he was struck by a car, driven by Soweto Anderson and owned by Kemba Anderson, at an intersection several blocks from the school and in a different direction from his home. The accident severely injured Joseph, rendering him a quadriplegic. That same afternoon, Charles, Jr., arrived at the school at around 2:50 p.m., the regular pick-up time. He did not see Joseph at his normal meeting location and learned from a parent in the school lobby that there had been an early dismissal. Charles, Jr., proceeded to search for Joseph at school and at home, but later learned that Joseph had been injured in an automobile accident. The school district had a four-page policy memorandum titled “Pupil Safety” that addressed a wide range of student safety topics, including supervision of students at dismissal time. The memorandum stated that “[t]he chief school administrator shall seek the cooperation of parents/guardians to prevent any children [from] being unsupervised on school property during lunch hour and during morning arrival and afternoon dismissal times.” The memorandum did not, however, outline how dismissal supervision would be administered by the schools. Instead, the school adhered to a practice that all school personnel supervise dismissal. On a typical school day, the school’s five hundred students were dismissed at 2:50 p.m. Teachers escorted the students from their classrooms to designated exits at the sounding of the school bell, and “[t]he teacher[s] remain[ed] at their designated duty stations to insure that the children leave the school premises.” According
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Negligence
to the school principal, all school personnel— including teachers, teachers’ aides, and security personnel—supervised dismissal to ensure that the children left school before the adults. The principal personally supervised early-dismissal days to “make sure that there were no children whose parents did not pick them up and they were still outside.” Because the school was in a “walking district,” students walked home from school at dismissal unless they were picked up or were enrolled in the after-school program. If a student was instructed by a guardian not to walk home, but was not picked up, the student could ask a school official to contact a guardian. If the school could not reach the guardian, the child would be allowed to remain at the after-school program. Parents, on a case-by-case basis, also could call the school to provide instructions to the school if they anticipated being late. Joseph was not registered in the after-school program, and no guardian had requested that the school release him only to the custody of an adult. Joseph’s family members stated that they did not know that June 15 was a scheduled earlydismissal day. The school, however, identified numerous occasions when it informed students and their guardians of the school calendar, including the scheduled June 15 early dismissal. For example, the school provided a handbook, which included the district calendar, to all students at the start of the school year. Joseph’s father registered Joseph in October, a month into the school year. According to the principal, parents who register students during the school year, such as Joseph’s father, should receive the handbook together with other paperwork during the registration process. Although Joseph’s father acknowledged that he received a registration packet when he registered Joseph, he did not remember receiving the school handbook. The handbook contained a form to be signed and returned by the student’s parent or guardian confirming its receipt. The school claims that it discarded all the signed forms at the end of the academic year, and, therefore, could not produce a form signed by Joseph’s guardian. In addition to the student handbook, the school informed parents of the June 15 early dismissal by providing an annual calendar to
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parents at back-to-school night and distributing copies of the annual calendar to students to bring home. A calendar for June also was included in the June 2001 monthly newsletter, which was mailed to all Pleasantville households, provided to every student at school, and was available in the school’s front office. Further, the school distributed a monthly schedule of events to each student to take home, and retained additional copies of the schedule at the school. Finally, near the end of the academic year, the school sent home a “reminder notice” with each student that reiterated the early-dismissal days for June. The father acknowledges receiving documentation from the school during the year, but does not recall whether he received a school newsletter, annual calendar, monthly calendar, or reminder notice. Jerkins family members assert that they were not made aware of the early-dismissal days, including June 15, through any school communications. The family contends that it usually learned of the school schedule through Joseph. Joseph’s brother stated that Joseph came home early from school on June 14—the day before the accident— and told him and their father that there had been a half-day at school that day. However, Joseph’s father and brother both stated that Joseph did not inform them that—nor did they inquire whether—there would be an early dismissal the next day, June 15. . . . The Appellate Division reversed and remanded, finding it foreseeable that a nineyear-old child, who was not met by an adult at dismissal, would remain unsupervised for hours and later be injured. The panel then considered the factors that courts apply when determining whether a duty exists, namely, the relationship between the parties, the nature of the attendant risk, a defendant’s ability and opportunity to exercise reasonable care, and the public interest. . . . Whether a duty of care exists is a question of law that must be decided by the court. In making that determination, the court must first consider the foreseeability of harm to a potential plaintiff, and then analyze whether accepted fairness and policy considerations support the imposition of a duty. We will now examine foreseeability, and each of the fairness and policy considerations, in turn.
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Foreseeability of injury, as it affects the existence of a duty, refers to “the knowledge of the risk of injury to be apprehended. “The risk reasonably to be perceived defines the duty to be obeyed; it is the risk reasonably within the range of apprehension, of injury to another person, that is taken into account in determining the existence of the duty to exercise care.” The ability to foresee harm “does not in itself establish the existence of a duty, . . . but it is a crucial element in determining whether imposition of a duty on an alleged tortfeasor is appropriate.” During the school day, children face many foreseeable dangers. . . . Those dangers continue at dismissal because children are susceptible to numerous risks, including negligent conduct, when leaving school property. And, the younger the child, the greater the risk, for younger children are less able—and less likely—to discern danger. . . . It is therefore foreseeable that a young child, exiting school grounds without parental or other supervision, may be vulnerable to harm. Beyond foreseeability, the question whether a duty exists is “one of fairness and policy that implicates many factors.” The inquiry involves identifying, weighing, and balancing four factors: “the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution.” The court must examine all of the attendant circumstances in light of those and other relevant considerations and must engage in a fact-based and principled analysis. First, with respect to the relationship of the parties, parents entrust their children to the care of schools, and “[e]ducators have ‘[n]o greater obligation . . . than to protect the children in their charge from foreseeable dangers, whether those dangers arise from the careless acts or intentional transgressions of others.’ ” School officials have a general duty “to exercise reasonable supervisory care for the safety of students entrusted to them, and [are accountable] for injuries resulting from failure to discharge that duty.” The relationship between the school, children, and parents encompasses the school’s responsibility to ensure the safety of the children in its charge. It logically flows from that relationship, particularly the caretaker role the school assumes, that school officials must reasonably supervise
children throughout the school day, including dismissal time. Because “parents . . . relinquish their supervisory role over their children to teachers and administrators during school hours,” and thus “transfer to school officials the power to act as guardians of those young wards,” school officials have a duty to students until those officials have successfully monitored the students through dismissal. Second, regarding the nature of the attendant risk, children face many potential dangers at dismissal. Younger children, in particular, are unable “to understand and appreciate the perils that may threaten [their] safe being.” Indeed, “[c]hildren have a known proclivity to act impulsively without thought of the possibilities of danger,” and “[i]t is precisely th[at] lack of mature judgment which makes supervision so vital.” Because a nine-year-old child may have difficulty appreciating and understanding dangers, the risk of harm to such a child without supervision is significant. The nature of that risk, which is reduced by supervision, supports the existence of a duty of care at dismissal. Concerning the third Carvalho factor—the defendant’s opportunity and ability to exercise care—school officials are already required to exercise reasonable care in supervising students during the school day. . . . Consistent with that school-day duty of care, educators generally have both the opportunity and the ability to supervise the actual process of dismissal. Schools are thus well-suited, and well-equipped, to fulfill that oversight responsibility during dismissal. Finally, with respect to the public interest in imposing a duty on schools to supervise dismissal, our State has a strong interest in protecting children. . . . The Legislature declared in New Jersey’s Public School Safety Law that “the safety and welfare of the public school students of this [S]tate while attending sessions of the public schools is a matter of prime concern to the citizens of this [S]tate.” N.J.S.A. 18A:17–42. Because that public interest is not quantifiable, our concern for the protection of children is not limited to those hours that school is in session. . . . The public interest is not served if the duty of care during school hours arbitrarily ceases when the school bell rings. On the contrary, because it is consistent with the State’s
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Negligence
recognized goal of ensuring student safety during school hours, public policy strongly supports the school’s duty to ensure reasonable supervision of students at dismissal. Additionally, as part of our consideration of those fairness and policy factors, we recognize that “[w]hen the defendant’s actions are ‘relatively easily corrected’ and the harm sought to be prevented is ‘serious,’ it is fair to impose a duty.” . . . As we have observed above, because the risk to children is significant, and because the additional burden on the school to supervise dismissal is minimal, the weighing of those considerations favors a duty of care for educators to reasonably supervise children during the dismissal process. In sum, the question whether a duty exists is “one of fairness and policy that implicates many factors.” After evaluating “the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution,” we find that those considerations support the conclusion that educators have a duty to exercise reasonable care in supervising students during dismissal. Our case law also supports the existence of a duty to reasonably supervise students at dismissal. . . . Thus, . . . our courts recognized a duty of care that extends beyond the classroom and refused to impose a rigid time frame on that duty. Cases from other jurisdictions buttress the existence of a duty of care during dismissal. . . . Accordingly, we find that dismissal is a part of the school day and that case law from New Jersey and other jurisdictions supports the existence of a duty to exercise reasonable care in supervising children during dismissal. In view of our finding that schools have a duty of care to supervise children during dismissal, we now examine the nature and scope of that duty. From the precedent supporting the existence of a duty at dismissal, it naturally follows that the duty is defined by a standard of reasonableness. . . . That standard is both flexible, assuring fairness for all parties, and comprehensive, because “proper supervision depends largely upon the circumstances attending the event.” . . . The reasonableness standard is designed to address
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a clear and precise question: whether, under the totality of the circumstances, a defendant’s conduct comported with that of a reasonable educator in like circumstances. Therefore, consistent with our jurisprudence, a reasonableness standard should be applied to evaluate New Jersey educators’ efforts to supervise students at dismissal. In light of that reasonableness standard, we now consider the specific elements of the duty to exercise reasonable care in a manner that both delineates the school district’s responsibilities and accounts for others’ responsibilities to children, particularly the responsibility owed by parents to their children. There are, simply put, three elements to the school’s duty of care in this context: (1) the school must adopt a reasonable policy concerning dismissal and the manner in which students of different ages will be dismissed; (2) the school must provide adequate notice of that policy to all parents or guardians; and (3) the school must effectively implement that policy and adhere to parents’ reasonable requests regarding dismissal. First, satisfaction of that duty requires school districts to adopt a policy governing dismissal practices. That policy should include, at a minimum, sufficient detail about the adult supervision and patrols present during dismissal, the assigned duties and locations of those adults at dismissal, and procedures for early-dismissal days. We leave it to the sound discretion of educators to formulate a specific policy that satisfies the school district’s responsibilities and is tailored to the district’s unique circumstances. Second, in order for the school to implement its responsibilities, school districts must notify parents of the adopted dismissal policy, specifically informing parents of what to expect from the school district regarding the school day’s end, the school calendar, and typical dismissal protocol. . . . [I]n respect of the school district’s transfer of responsibility for students to parents at day’s end, the school district’s notice must inform parents what the usual circumstances at dismissal will be regarding a student’s release to walk home. The school district’s duty is to inform parents that they must instruct the
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school not to allow the child to walk home unescorted if that is the parents’ desire. And, further, the district must provide some means for parents to make known to the district their specific wishes in that regard. It is plainly the parents’ obligation to inform the school of the parents’ decision that the child should not be allowed to walk home unescorted by an adult or designated older child. Third, the duty requires faithful adherence to a reasonable, published dismissal practice, including compliance with a parent’s or guardian’s instructions about releasing a child to walk home alone. If instructed not to permit a child to walk home alone, a district must retain supervision over the child while the student remains on school property awaiting the arrival of the appropriate escort or designated transportation. . . . The school district’s duty is thus discharged through the adoption of, notice to parents or guardians of, and compliance with a reasonable dismissal policy. . . . When viewed in the light most favorable to plaintiff, the sparse record as developed to date in respect of the reasonableness of the school district’s efforts may not foreclose liability here. Therefore, a remand is necessary for the trier of fact to consider those issues. We add only this. Our holding should not be interpreted to suggest that schools are guarantors of students’ safety with respect to all activities during or after dismissal. A school district’s responsibility has temporal and physical limits, and its obligation to act reasonably does not diminish the responsibilities that parents or guardians have to their children. We caution parents and guardians that their conduct under the circumstances—such as failing to read or heed school notices, advise school authorities of changed conditions, or act reasonably and responsibly in dropping off and picking up children—may be relevant to the analysis of breach. That said, a parent’s or guardian’s indifference may not absolve a school district of negligence in a given case. Even if parents or guardians overlook their responsibility, educators have a duty of reasonable care that includes the implementation of appropriate dismissal procedures, effective notice to parents or guardians of those procedures, and compliance with
parents’ instructions, if any, regarding a child’s inability to walk home alone. At day’s end, the examination whether the school fulfilled that duty is one of reasonableness under the totality of the circumstances. . . . Because this appeal presents factual questions whether defendants breached that duty and whether such a breach proximately caused Joseph’s injuries, we remand the matter to the trial court for further proceedings consistent with this opinion. The judgment of the Appellate Division is affirmed as modified.
School District Did Not Have Reason to Foresee a Gang-Related Shooting of a Student
Brownell v. Los Angeles Unified School District California Court of Appeals Second District, 1992. 4 Cal. App. 4th 787, 5 Cal. Rptr. 2d 756.
BOREN, Associate Justice. The Los Angeles Unified School District (LAUSD) appeals following a $120,000 jury verdict arising from an incident in which a student, Ernest P. Brownell, III, was shot and wounded by gang members. The shooting occurred immediately after school hours and on a public street adjacent to school property. Brownell alleged negligent supervision in that LAUSD personnel had dismissed the students after school without first ascertaining if the street in front of the school was free of any gang members. . . . Among the group of people was another student, Keesha Pierson, who was herself waiting for some friends with whom she was going to walk home. At trial, Pierson testified as to the ensuing events. After the school day ended on January 28, 1985, Brownell went out the main door of Johnson High School and stood in front of the school on the sidewalk along 42nd Street among a group of 15 to 20 people. . . . After Brownell had stood outside for approximately five minutes, several youths wearing red gang colors
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Negligence
associated with the Bloods gang ran or walked quickly across the street and gathered around Brownell. One of the gang members swung at Brownell, causing him to go into the middle of the street where another gang member pulled out a gun and shot him. The incident happened very fast. The gang members were not in front of the school when Pierson or Brownell first came out of the school. Pierson had no idea during that day at school that there was going to be an incident like that after school. Brownell, who had never been a member of a gang, was apparently shot because he was mistaken by members of the Bloods for a member of a rival gang, the Crips. Johnson High School is located in an area known as a Crips neighborhood. Before Brownell was shot, a gym teacher at the high school told Brownell and other class members about an altercation at the school which had occurred at some unspecified time and involved one of Brownell’s attackers, Lymus Ali, and another student. Ali had told the teacher that “he can’t come to the school no more because there’s some Crips here, and that he was a Blood.” Ali had only been a student at Johnson High School for one or two days when he was threatened and told the gym teacher he could no longer attend the school. The member of the Bloods who shot Brownell, Douglas Smith, was not a student at Johnson High School, and Brownell had never encountered Smith before Smith shot him. At the time Brownell was shot, he and the other students had been dismissed from school for the day. Mary Maddox, dean and counselor at Johnson High School, and Wilma Manyweather, the principal of the school, were inside the school near the doors passing out bus tickets to the students. They normally gave out the tickets at the school gate, but they did so inside the building that day because it was raining. On the day Brownell was shot, neither Maddox nor Manyweather had heard any rumors or threats to any of the students or detected any other indications of trouble. As Maddox explained, “Usually when something was about to happen [in such a small school] you could feel it all day long, and the kids would be whispering and stuff like that. But I don’t recall any of that happening on that day.”
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Johnson High School had a population of approximately 200 students. The students at Johnson High School were referred there from other high schools where they had had behavior problems, such as inability to get along with other students, truancy, destructiveness in the classroom, and involvement in gangrelated activities. The school had no school police or security guards, but had campus aides who could contact the school administrators or school police by walkie-talkie. It was the policy of the school to prohibit the display on campus of gang colors and paraphernalia associated with gangs. During 1985, the year Brownell was shot, the school removed such gang-related items from students on almost a daily basis and also on occasion confiscated weapons from students. There had been no prior shootings at Johnson High School. . . . LAUSD contends that it has no duty of care to students going to or from school regarding accidents which occur off school premises. Indeed, as a general principle, “school districts are not legally responsible for accidents that students may suffer once they have been released from school. . . .” It is well settled that although a school district is not an insurer of its pupils’ safety, school authorities have a duty to supervise the conduct of students on school grounds and to enforce rules and regulations necessary for their protection. . . . The standard of due care imposed on school authorities in exercising their supervisorial responsibilities is that degree of care which a person of ordinary prudence, charged with comparable duties, would exercise under the same circumstances. . . . As the court explained in Hoyem, in the context of a student who claimed negligent supervision after he absented himself from the school grounds during school hours and was subsequently injured by a motorist, “We require ordinary care, not fortresses; schools must be reasonably supervised, not truant-proof.” . . . In the present case, we find that the school district exercised due care and, under any view of the evidence, satisfied its supervisorial responsibilities in regard to protecting students from potential gang-related violence. It is a tragic and sad commentary upon our society when an innocent student attending high school is
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assaulted and shot by gang members upon leaving school premises. Nonetheless, a school cannot and should not be an insurer of the safety of students, particularly after school and off school premises, when it has exercised ordinary prudence and due care appropriate to the circumstances. . . . LAUSD exercised reasonable and ordinary care and satisfied its duty to supervise adequately students in view of (1) the general precautions the school always took to minimize gang-related problems (e.g., prohibiting wearing gang colors and confiscating weapons), and (2) the absence of any advance indication to school personnel of potential gang violence pertinent to the incident involving Brownell. . . . Imposing . . . a duty of visual precaution is unwarranted and impractical, as indicated by the very sudden and unexpected nature of the attack upon Brownell. Even if school personnel happened to observe the mere presence of gang members near the school, it would apparently not constitute an unusual or alarming phenomenon, since gang members were present in the school and lived in the neighborhood of the school. We find that school personnel of ordinary prudence under the circumstances described should not be required to engage in such visual precaution, absent either (1) any specific indication of a real and imminent gangrelated threat at the particular time and place of the shooting, or (2) prior incidents reflecting not necessarily this identical type of assault but that “the possibility of this type of harm was foreseeable.” . . . Here, LAUSD did not fail to take reasonable precautions against any foreseeable risk and fulfilled its duty of reasonable care. The judgment is reversed, and the superior court is directed to dismiss the complaint. Each party is to bear its own costs on appeal.
CASE NOTES 1. Duty Owed Off School Grounds. A school district’s duty may extend off campus if negligent on-campus supervision is the proximate cause of off-campus injury. Thus, it is conceivable that a student who is injured while “playing hooky” may be able to recover damages against the school district if the school district could have (1) foreseen that the child would
sneak away from school and did nothing about it and (2) foreseen that the surrounding circumstances—traffic, crime, etc.—could lead to injury. Whether such circumstances are present and foreseeable is a jury question. Thus, there is no precise dividing line between on-campus and off-campus liability of the school district. See Dailey v. Los Angeles Unified School District, 2 Cal. 3d 741, 87 Cal. Rptr. 376, 470 P.2d 360 (1970). 2. Duty. A Florida court has provided a good explanation of the duty owed by the school to the student: To sustain a cause of action in negligence, a complaint must allege ultimate facts which establish a relationship between the parties giving rise to a legal duty on the part of the defendant to protect the plaintiff from the injury of which he complains. It must also show that the defendant negligently breached that duty, and that the plaintiff’s injury was proximately caused by the defendant’s negligence. Ankers v. District School Board of Pasco County, 406 So.2d 72 (Fla. Dist. Ct. App. 1981).
3. The Nebraska Supreme Court has held that a school district has a duty to see that students wear protective clothing in a class where they are engaged in arc and acetylene welding projects. The court found that the standards of the American Welding Society that had been adopted by the American National Standards Institute, saying that persons “should” wear special clothing to reduce combustibility, along with opinions of experts, are sufficient for the court to determine that the school is liable for injury sustained by a student who was badly burned when a loose-fitting cotton shirt he was wearing caught fire while he was operating a welding torch. The court concluded that the school should have foreseen such an occurrence and that the school’s failure to require the protective clothing was the proximate cause of the injury. Norman v. Ogallala Public School District, 609 N.W.2d 338 (Neb. 2000). 4. The Doctrine of Proximate Cause. In Holler v. Lowery, a Maryland case, the court said: There is no mystery in the doctrine of proximate cause. It rests upon common sense rather than legal formula. Expressed in the simplest terms it means
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The Tort of Bullying that negligence is not actionable unless it, without the intervention of any independent factor, causes the harm complained of. It involves of course the idea of continuity that the negligent act continuously extends through every event, fact, act and occurrence related to the tortious conduct of the defendant and is itself the logical and natural cause of the injury complained of. In the statement of the doctrine an intervening cause means not a concurrent and contributing cause, but a superseding cause, which is itself the natural and logical cause of the harm. 175 Md. 149, 161, 200 A. 353, 358 (1938).
5. Proximate Cause. A school district’s responsibility does not extend off school grounds so as to incur liability unless a failure of reasonable care on the part of the school is the proximate cause of injury. Where a student was injured in an auto crash after he had obtained keys to a car, left school, and taken other students joyriding, the court ruled that the failure of the school to notify parents of the students’ truancy was not the proximate cause of the injury. Palella v. Ulmer, 136 Misc. 2d 34, 518 N.Y.S.2d 91 (1987). 6. The Connecticut Supreme Court has defined proximate cause as “an actual cause that is a substantial factor in the resulting harm.” This definition calls into play the “substantive factor” test. This test, the court says, “reflects the inquiry fundamental to all proximate cause questions; that is, whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant’s negligence.” Purzyski v. Town of Fairfield, 708 A.2d 937 (Conn. 1998); Doe v. Manheimer, 563 A.2d 699 (1989). 7. Duty May Transcend Another’s Act. The school district’s duty to a student is not absolved by mere wrongful conduct of a third party. The California Supreme Court has held that the fact that another student’s misconduct was the immediate precipitating cause of injury does not compel a conclusion that negligent supervision by the teacher was not the proximate cause of a student’s death. Neither the mere involvement of a third party nor the party’s own wrongful conduct is sufficient in itself to absolve the defendants of liability, once a negligent failure to provide adequate supervision is shown. Dailey v. Los Angeles
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Unified School District, 2 Cal. 3d 741, 87 Cal. Rptr. 376, 470 P.2d 360 (1970). 8. Intervening Cause. An intervening act, by definition, may intercede between the original act and the injury in such a way as to break the chain of causality. A California court has explained: where [an] injury was brought about by a later cause of independent origin . . . [the question of proximate cause] revolves around a determination of whether the later cause of independent origin, commonly referred to as an intervening cause, was foreseeable by the defendant or, if not foreseeable, whether it caused injury of a type which was foreseeable. If either of these questions is answered in the affirmative, then the defendant is not relieved of liability towards the plaintiff; if, however, it is determined that the intervening cause was not foreseeable and that the results which it caused were not foreseeable, then the intervening cause becomes a supervening cause and the defendant is relieved from liability for the plaintiff’s injuries. Akins v. County of Sonoma, 67 Cal. 2d 185, 60 Cal. Rptr. 499, 430 P.2d 57 (1967).
The intervening act of a student throwing a bamboo high-jump crossbar, after school hours, and striking another student in the eye was the sole proximate cause of injury. Highjumping equipment is not an “inherently dangerous” instrumentality that imposes a duty on teacher or school to provide supervision during nonschool hours. Bush v. Smith, 154 Ind. App. 382, 289 N.E.2d 800 (1972). Intervening negligence of a third party does not break proximate cause, relieving the original tortfeasor of his or her negligence, if intervening negligence is foreseeable. Leahy v. School Board of Hernando County, 450 So.2d 883 (Fla. Dist. Ct. App. 1984).
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The Tort of Bullying
Bullying is bellicose behavior by a person or persons that hurts or threatens to hurt another in the same peer group.74 Bullying can be divided into (a) physical offenses (such as hitting, shoving, pushing, and destruction of property), (b) verbal offenses (such as gossiping, teasing, taunting), (3) nonverbal behavior (notes, facial expressions, and/or pictures,
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conveying threats), and (4) “cyberbullying,” words and pictures conveyed by Internet, e-mail, and various electronic devices.75 Bullying and harassing may be defined as the same offenses.76 Bullying and cyberbullying cases by their nature involve a spectrum of common law, statutory, and constitutional issues ranging from the common law torts of intentional interference and negligence to issues of statutory “true threats,” as well as constitutional free speech issues. True threats of violence, as reviewed in Chapter 10, involve statements or messages, delivered orally, in writing, or electronically, “where the speaker means to communicate a serious expression of intent to commit an act of unlawful violence to a particular individual or group of individuals.” 77 A true threat is a serious communication, “not uttered in jest, idle talk, or political argument.”78 Thus, some cyberbullying may be “unprotected speech,” subject to regulation and penalty, whereas other messages may be constitutionally protected speech.
CYBERBULLYING A California court, 2010, has defined cyberbullying: “[O]nline bullying, called cyberbullying, happens when teens use the Internet, cell phones, or other devices to send post text or images intended to hurt or embarrass another person. Contrary to what cyberbullies may believe, cyberbullying is a big deal, and can cause a variety of reactions in teens. . . . Many youth experience a variety of emotions when they are cyberbullied. Youth who are cyberbullied report feeling angry, hurt, embarrassed, or scared. Children have killed each other and committed suicides after having been involved in a cyberbullying incident.” D.C., a Minor v. R.R., a Minor
explained previously in this chapter, involves an action against the tortfeasor who by definition intends to harm another student. The latter involves negligence of school districts, school officials, teachers, or the perpetrator ’s parents, all of whom may have failed to exercise the requisite standard of care in preventing the harm.
INFLICTION OF EMOTIONAL DISTRESS Redress for damages against the perpetrator of bullying and cyberbullying is to be found in the intentional tort of “infliction of emotional distress.” The Restatement (Second) of Torts 46, states the rule as follows: “One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.”
Beyond these common-law torts of intentional interference and negligence, some state legislatures have enacted anti-bullying statutes for the prevention of bullying.79 A second category of such offenses falls within the realm of criminal law, assault and battery, misdemeanors, and felonies that mete out punishments via the criminal courts. A third category of offense may be found in federal constitutional and statutory law where a school district’s failure to restrain bullying may lead to federal sanctions. As discussed later in this chapter, Section 1983 of the Civil Rights Act of 1871 is invoked if a public school has been “deliberately indifferent” to the victim’s plight and school officials have failed to prevent the injury.
BULLY LIABILITY Bullying is an intended act. There is no law of bullying, per se; rather, there is a developing jurisprudence in school law that emanates from litigation involving students in civil and criminal actions that have transpired in recent years in the public schools. The first of these cases in civil law address bullying primarily as the torts of (1) intentional interference (assault and battery), and (2) negligence. The former, as
With regard to the intentional tort of assault and battery, the bully, beyond criminal punishment, may also be liable in damages. Infancy or minority is not a defense to a civil action in assault and battery. A civil assault claim against a bully requires proof of: (a) an action; (b) intent to cause a harmful or offensive contact with another person; and (c) actual contact or an imminent apprehension of contact. As noted previously
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The Tort of Bullying
in this chapter, assault does not require proof of physical contact where battery does require such proof.80 Thus, cyberbullying may constitute assault but not battery.
PARENTAL LIABILITY A civil action for money damages may also lie against the parents of the student aggressor. Under common law, parents may be liable for the torts of their minor children. Section 316 of the Restatement (Second) of Torts states: “A parent is under a duty to exercise reasonable care so [as] to control his minor child as to prevent it from intentionally harming others or from so conducting itself as to create an unreasonable risk of bodily harm to them if the parent (a) knows or has reason to know that he has the ability to control his child, and (b) knows or should know of the necessity and opportunity for exercising such control.81 Of particular importance to the problem of bullying is the common law that holds that a parent may be liable for his or her minor child’s (1) intentional tort and/or (2) negligence tort. If a parent knows or has reason to know that his or her child is a bully and does not exercise control to prevent harm to other children, then a liable action against a parent may be viable. For example, Illinois courts have cited Section 316 of the Restatement (Second) Torts and ruled to “impose a duty on parents when they are in a position to exercise immediate control over their child to prevent foreseeable harm.”82 Using this rationale, the Illinois courts have held that a parent is not liable for negligent supervision of his child who injured another person while riding his bicycle83; yet, on the other hand, have held liable a parent for negligent supervision of her three-year-old child who set off a silent alarm at work, twice in a six-day period, causing injury to the plaintiff, a co-worker.84 In cases of parental liability, the plaintiff must show that the parent knew of his child’s truculent and aggressive tendencies and the parent had an “immediate opportunity” to prevent the injury.85 Some states have reinforced this common law rule by statute. 86 For example, Louisiana statute 87 provides that: The father and the mother, and after the decease of either, the surviving parent, are responsible for damage occasioned by their minor or
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unemancipated children, residing with them, or placed by them under the care of other persons, reserving recourse against those persons.88
Under this statute a parent may be liable for the torts of the child, whether intentional, as in the case of bullying, or for injury caused by negligence of the child. In interpreting this statute, the Louisiana Supreme Court has held that it does not matter whether the child is incapable, by age or other reason, of legal delict (legal offense), the parent is still liable for injury caused by the child. The Louisiana court said that: This legal fault (of the parent) is determined without regard to whether the parent could or could not have prevented the act of the child, i.e., without regard to the parent’s negligence. It is legally imposed strict liability.89
The statute, thus, makes the parent strictly liable for either intentional torts or for negligence of the child. Therefore, parents may have responsibility for their minor children by common law and possibly by means of state legislation.
SCHOOL DISTRICT LIABILITY In most litigation having to do with “bullying,” the legal issues will usually involve claims by the victim student that the school district was negligent because it failed in its duty to properly supervise and protect the student from harm. Beyond such common-law negligence cases, plaintiffs have also pursued federal constitutional tort actions seeking damages under Section 1983 of the Civil Rights Act (mentioned previously and expanded upon later in this chapter). The reality of bullying litigation is that a plaintiff’s lawyer will institute the claim that has the greatest likelihood of economic success for the victim, and, of course, for the lawyer as well. School districts usually have deeper pockets than either the bully or the bully’s parents, and it doesn’t take long for any self-respecting attorney to figure it out. Not unimportant to the litigation dance is the fact that lawyers, for the most part as rational beings, are aware that school districts may also carry liability insurance that protects the school districts and school officials against liability in damages for various
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civil wrongs. Too, plaintiff’s attorneys are well aware that most damage actions are settled by insurance companies before trial. Thus, most complaints in this realm are settled before a trial for a fraction of the damages originally sought by the plaintiff. However, when appellate litigation does ultimately ensue, a school district will not be liable for the transgressions of bullies unless the acts were foreseeable by the school personnel. Liability will not be imposed upon a school district or a school official if the injuries were caused by sudden and impulsive acts that were not preceded by conduct of the bully that would lead a reasonable person to believe that further harmful behavior might be in store. For example, one New York court, in declining to hold a school official liable for a bullying incident, ruled that a school official would be held responsible only if there was forewarning by “specific, prior knowledge of the danger that caused the injury.”90 A similar result was reached by an Ohio court that found that even though the offending student had been disruptive at times, the earlier incidents were either “horse play” or “unprovoked” conflicts, and that there were, therefore, no grounds for the school officials to have reasonably foreseen that the offender would commit criminal assault on the victim.91 As pointed out elsewhere in this book, teachers and school administrators have a qualified or conditional privilege against liability for their discretionary acts. Qualified privileges normally absolve the teacher or administrator from liability for omission or commissions in a range of situations. Such immunity, however, does not extend to failure to perform ministerial acts. Ministerial acts are those acts required by regulation or law. In a case involving the question of immunity where bullying had occurred, the Georgia Supreme Court ruled that a general requirement of a school safety plan in the state constitution does not impose a ministerial duty on schools to have a contingent ministerial plan for safety from bullying; and, therefore, the defendant teachers and administrators were protected by qualified immunity, because the only duties involved were discretionary.92
Supervision of children is normally a discretionary function. Where a student was assaulted by a classmate in a woodshop and sued the school district and teacher for negligent supervision, the plaintiff attempted to show that the teacher was not exercising a discretionary function at the time that the offense occurred but rather was performing the ministerial function of working on his grade book. The Minnesota Supreme Court did not agree with the plaintiff’s legal logic and ruled that the teacher had immunity, as his acts or omissions were discretionary and not ministerial. 93 In yet another action labeled as a “bullying” case, a student committed suicide at home and left a suicide note and mid-term grades next to his body. The boy’s parents sued the school district for negligence claiming that the suicide was the result of bullying at school. The student had been subjected to bullying but the offenses had not been reported to school personnel. The court held that without the benefit of prior knowledge of bullying the school personnel could not have foreseen either the bullying or its consequences.94 Finally, the law related to “bullying” in public schools basically boils down to litigation in tort law involving, first, possible actions by the victim against the bully and/or against the bully’s parents. Such actions involve the civil wrong of assault and/or battery, an intentional tort. If a claim is made against the parent of the bully, the action would be based on the negligent supervision. Second, redress for the victim may be sought against a teacher, school official, and/or the school district; however, in order to succeed in this type of action, the plaintiff must necessarily show that the defendant school personnel’s acts exceeded the bounds of their qualified immunity. The victim or parent may also launch a claim against the school district using constitutional rationale, denial of substantive due process in concert with Section 1983. Student-on-student harassment also offends Title IX of the Civil Rights Act for which damages are available if the school district officials are deliberately indifferent to the victim’s plight.95 Title IX liability is explained further below in this chapter and in other chapters in this book.
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The Tort of Bullying
As to the steps that prudent school officials may take to help stem bullying and harassment, the U.S. Department of Education96 recommends the following: ■ ■ ■ ■ ■
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Encourage students and parents to notify school officials when bullying occurs. Interview the victim and ascertain the facts. Establish a system of required reporting and information to document occurrences. Provide advice to victims of all options available to them. Evaluate the victim’s requests for confidentiality to determine if it can be honored without limiting the school’s ability to remedy the harassment. Take prompt remedial action appropriate to the offense and the age and identity of the parties. Provide interim protection (such as separating the parties, referrals to victim assistance sources, and enforcement of the policy’s “anti-retaliation provisions.”
School Board Is Not Liable for “Bullying” Injury to Student in Locker Room When Teacher Was Not Present
Wallmuth v. Rapides Parish School Board Supreme Court of Louisiana, 2002. 813 So.2d 341.
VICTORY, J. We granted this writ to determine whether the Rapides Parish School Board (the “School Board”) is liable to plaintiffs for injuries suffered by an eighth grade student, Joshua Wallmuth (“Wallmuth”), when he was kicked by another student in the locker room after a physical education class. After reviewing the record and the applicable law, we reverse the judgments of the lower courts and hold that the School Board is not liable for Wallmuth’s injuries.
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Wallmuth’s parents filed suit against the School Board and three other students’ parents and guardians and their insurance companies, alleging that on April 18, 1996, in the locker room at Jones Street Junior High, two students, Nathaniel Smith and David Zeno, held Wallmuth while another student, Chris Davidson, kicked Wallmuth in the knee, severely injuring him. . . . At trial, Wallmuth testified that on April 18, 1996, he was in Coach David Brasher’s physical education class. On that date, the students were playing volleyball. He testified that Zeno, Smith, and Davidson were on one team and he was on another, that his team was winning, that the other three students were angry about it, and shouted at Wallmuth that they were going to “get [him] after class.” He testified that the class continued to play volleyball throughout the rest of the class period until Coach Brasher told them that they had five minutes to go into the locker room and get dressed for their next class. Wallmuth testified that his locker was in the back of the locker room, in an area that was not visible from the door of the locker room. He testified that as he went into the locker room, he was not concerned for his safety because he thought the threats from the three other students had died down. However, after he reached his locker and started to get dressed, he heard the three boys approach him and say “get him.” At that point, he testified that “Zeno ran up behind me and stood on top of the bench and was holding my shoulders and pulling my hair” and that “Smith was standing in front of me with his back against the lockers holding my left arm.” He testified that Davidson was just standing there but “then he ran up and kicked me.” Wallmuth testified that the three students ran off but then came back and “Chris Davidson asked me what happened and I told him that he had kicked me, and then they all said that they were sorry and asked me if I was going to tell on them.” Between 30–60 seconds after he [Davidson] was kicked, Coach Brasher came into the locker room on his regular patrol and found him on the floor. Wallmuth testified that Coach Brasher was not in the locker room when the incident occurred and that, in fact, Coach Brasher was “hardly ever” in the locker room when the boys were changing clothes. He testified that when
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the students were dressing out, Coach Brasher spent his time walking between the gym and the locker room, which were connected to each other by a doorway. He further testified that Coach Brasher could not see the area where his locker was located from the locker room door. Finally, Wallmuth testified that “almost every day, somebody [was] getting pushed or shoved into lockers, rolled around, thrown around, I mean, hair being pulled, arms twisted” and that Zeno, Smith, and Davidson were almost always involved. He testified that Coach Brasher was never in the locker room when those things were going on, but when Coach Brasher was in the locker room, none of the above occurred and “they would just go and get dressed and leave.” He testified that that type of activity was directed at him “about ten times” but he never told Coach Brasher about it because he was scared. He had told Coach Brasher on a couple of occasions that someone else had gotten hurt, but Coach Brasher told him not to worry about it. He testified that he did not tell Coach Brasher about the threats he received on the day of the incident because he thought the other three students had forgotten about it, that it had “died over,” and that on other occasions when those students had threatened him, nothing ever happened as a result. Smith testified that there was no supervision in the locker room. He denied holding Wallmuth while he was kicked and claimed he did not know Davidson was going to kick him. He testified that the scuffle was already taking place when he got back to the lockers and that the kick was sudden and surprising. Zeno testified and admitted that he and Smith were “horseplaying” with Wallmuth for two or three minutes but were not mad at him. Zeno testified that Davidson just ran in, kicked Wallmuth, and said “I told you I was going to get you.” He further testified that Davidson had yelled at Wallmuth during the volleyball game that he was going to get him when they got to the locker room but that he never thought Davidson would actually do anything. Zeno testified that Coach Brasher would come in the locker room occasionally but that Coach Brasher had to be three different places at once, the locker room, the gym and the canteen, in order to supervise all the students in the class.
The principal of Jones Street Junior High, Michael Vercher, testified that he did not recall any specific incidents in this physical education class, that he knew of no prior discipline problems concerning Zeno, Smith, or Davidson, and that Coach Brasher received the highest evaluations each year. . . . Coach Brasher testified regarding his usual routine in handling his gym classes. He testified that when he dismissed students from the gym to go into the locker room to get dressed, either before or after class, he would generally stay in the gym until the last student had gone into the locker room, then he would walk through the locker room to make sure “everybody was doing what they were supposed to do.” He also testified that he would walk to the back of the locker room to make sure that a door located at the back of the locker room was secure. He would then stand by the door between the locker room and the gym until all the students were back in the gym. He admitted that he could not see the area of the locker room where this incident took place from that position. However, when questioned about how he first learned about the specific incident involved in this case, he testified that “I was making my normal walk to the backdoor and saw some students moving around the corner of some lockers in a way that was, I thought, unusual . . . so I went back to investigate, and when I got to where Josh’s locker was I saw him sitting on the bench.” He testified that there had been five fights that year in the gym or locker area, none of which resulted in serious injury, but that he could not have done anything to prevent this incident without prior knowledge of the problem. The plaintiffs also presented several other witnesses who were students in other physical education classes. Brian Coughlin and Jeremy Jones, seventh-grade students in another of Coach Brasher’s physical education classes, testified that there were fights in the locker room everyday but that they never told any teachers about it. . . . We will first address the issue presented in the School Board’s application, i.e., whether the lower courts erred in finding independent liability on its part for failure to supervise the students during this physical education class. . . . The trial court found that the School Board was
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The Tort of Bullying
100% liable for Wallmuth’s injuries using the duty-risk analysis . . . finding that “the conduct of the School Board in failing to supervise the students was a cause-in-fact of Joshua Wallmuth’s injuries.” On the other hand, the court of appeal found that the School Board was 70% liable for Wallmuth’s injuries. . . . The court of appeal set out what we believe is the correct standard of liability regarding the liability of a school board for the actions of its students under La. C.C. art. 2320: A school board, through its agents and teachers, owes a duty of reasonable supervision over students. . . . The supervision required is reasonable, competent supervision appropriate to the age of the children and the attendant circumstances. . . . This duty does not make the school board the insurer of the safety of the children. Constant supervision of all students is not possible or required for educators to discharge their duty to provide adequate supervision. . . .
Before liability can be imposed upon a school board for failure to adequately supervise the safety of students, there must be proof of negligence in providing supervision and also proof of a causal connection between the lack of supervision and the accident. “Injury from horseplay between discerning students which, at some stage, may pose an unreasonable risk of harm to the participants does not automatically and of itself render the supervising authority liable.” . . . Furthermore, before a school board can be found to have breached the duty to adequately supervise the safety of students, the risk of unreasonable injury must be foreseeable, constructively or actually known, and preventable if a requisite degree of supervision had been exercised. . . . The court of appeal found that the School Board was liable for Wallmuth’s injuries because, with knowledge that there had been fighting in the locker room, the School Board failed to notify Coach Brasher that he needed to exercise more supervision over that area. . . . In reviewing the jurisprudence throughout this state, we find that the vast majority of courts have found no liability on the part of school boards for fights occurring between students, or accidents at school, either because the school board did not breach its duty of reasonable supervision, or because the school board or school
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personnel could not have prevented the incident from occurring. . . . In this case, the conduct by Davidson was unforeseeable and, by all accounts, happened suddenly and without warning. There had been no prior history of any violence between Wallmuth and the three other students, and Wallmuth testified that he thought Davidson and the other students had cooled off after their threats to “get him” when they got back to the locker room. Wallmuth felt that he was in no danger of harm when he entered the locker room to begin changing clothes, and therefore, did not notify Coach Brasher that these students posed a danger to him. In addition, Zeno and Smith testified that they did not know Davidson was going to kick Wallmuth and that it happened suddenly and without warning. Because this incident was not foreseeable to Wallmuth or any of the other students involved, there is no way that Coach Brasher could have foreseen the incident and prevented it. Therefore, we find that the lower courts were clearly wrong in finding any independent liability on the part of the School Board under either La. C.C. arts. 2315 or 2320. The court of appeal erred in finding that the School Board and the school were aware of a “pattern of rough housing” in the locker room and should have taken action to “insure that there was increased supervision in the locker room so as to prevent future skirmishes.” . . . Because neither Coach Brasher, nor the School Board, had any knowledge of any problems in the locker room involving students in this physical education class, there was no more reason for Coach Brasher to have been in the back of the locker room supervising these students than there was for him to be in the gym or at the door to the locker room supervising any of the other students. Thus, no independent fault is attributable to the School Board. . . . Constant supervision of all students is not possible, nor is it required, for educators to discharge their duty to provide adequate supervision. The School Board is not liable in this case . . . for failing to adequately supervise this physical education class, because the risk that one student would strike and seriously injure another student in the back of the locker room was not foreseeable, nor constructively or actually known.
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Not even the student who was injured thought that he was at risk in the locker room, and no one notified Coach Brasher, or anyone else at the school or the School Board, that Davidson posed a threat to anyone else, or that the students in this physical education class routinely engaged in roughhousing in the back of the locker room. Therefore, neither the School Board nor Coach Brasher acted unreasonably by failing to constantly supervise the students changing clothes in the back of the locker room, rather than patrolling the entire area, including the gym and the locker room. . . . For the reasons stated herein, the judgments of the lower courts are reversed and judgment is rendered in favor of the School Board, dismissing plaintiffs’ claims against it. Reversed and rendered.
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Defenses for Negligence
In all cases involving negligence, the defendant may attempt to show that he or she is not negligent because the injury was a mere accident; that his or her act was not the proximate, or legal, cause of injury; or that some other act intervened and was responsible for the injury. However, aside from these essentials of a tort claim, other rejoinders against negligence can be classified as defenses. The most common of these are: (1) contributory negligence, (2) comparative negligence, (3) assumption of risk, and (4) immunity. Of these defenses, contributory negligence and assumption of risk are most often used in school law cases. Immunity is a defense found in both common and statutory law that derives from the state’s sovereignty. Each of these concepts is briefly explained in the following sections.
CONTRIBUTORY NEGLIGENCE Contributory negligence involves some fault or breach of duty on the part of the injured person, or a failure to exercise the required standard of care for his or her own safety. One court explained contributory negligence as conduct on the part of the injured party that caused or contributed to the injury and would not have been done by a person exercising ordinary prudence under the circumstances.97 The Restatement (Second) of Torts defines contributory negligence in much the same manner: [c]onduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection, and which is legally contributing cause cooperating with the negligence of the defendant in bringing about the plaintiff’s harm.98
As previously pointed out, a child is capable of negligence, and his or her failure to conform to a required standard of conduct for a child of the same age, physical characteristics, gender, and training will result in the court assigning fault to his or her actions. Thus, if an injured child is negligent and his or her negligence contributes to the harm, then a defendant who is also negligent may be completely absolved from liability. If the student has superior knowledge that would be protective, the courts will take it into consideration in adjudging fault. In a case in which students knew that chemicals should not be held near a flame and the students intentionally set fire to the experiment and injury resulted, the court held the students were contributorily negligent because they should have known the consequences.99 However, since a child is not expected to act with the same standard of care as an adult, teachers have more difficulty showing contributory negligence than they would if the plaintiff was an adult. A child is by nature careless and often
Negligence Defenses
Contributory Negligence
Comparative Negligence
Assumption of Risk
Immunity
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Defenses for Negligence
negligent, and knowing this, a teacher should allow for an additional margin of safety. This is especially true with younger children. In fact, one court has said that where a child is concerned, the test to be employed is whether the child has committed a gross disregard of safety in the face of known, perceived, and understood dangers.100 In a case in which contributory negligence was found, a boy climbed on top of wire screening, fell through a hole, and was injured. The jury found the boy to be contributorily at fault because he did not exercise a reasonable degree of care for his own protection.101 Another court has held that a pupil who was injured when he mixed chemicals in a school laboratory was guilty of contributory negligence because he knew the chemicals were dangerous.102 If a plaintiff’s negligence or fault contributes to the injury, the court will bar recovery of any damages at all. Some courts have held that the complete barring of any damages because of contributory fault is perhaps a little drastic and have therefore endeavored to prorate damages based on the degree of fault. This results in what is known as comparative negligence.
COMPARATIVE NEGLIGENCE When contributory negligence on the part of the plaintiff is shown, the defendant is usually completely absolved from all liability. This, some courts and legislatures have felt, works a hardship on the negligent plaintiff, who suffers injury but can recover nothing from the negligent defendant. This concern for the injured party has led legislatures in some states to enact statutes to determine degree of negligence and to allow recovery based on the relative degree of fault. Although the specific provisions of “comparative negligence” statutes vary from state to state, the concept works this way: If the plaintiff’s fault is found to be about equal to the defendant’s, the plaintiff will recover one-half the damages and must bear the remainder of the loss. If the plaintiff’s negligence amounted to one-third the fault and the defendant’s two-thirds, the plaintiff could recover two-thirds of the damages.
ASSUMPTION OF RISK Assumption of risk is another defense against negligence. Here the plaintiff acts in a manner that effectively relieves the defendant of his or
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her duty or obligation of conduct. The plaintiff by expressed or implied agreement recognizes the danger and assumes the risk. The defendant is thereby under no legal duty to protect the plaintiff. With knowledge of the danger, the plaintiff voluntarily enters into a relationship with the defendant and, by so doing, agrees to take his or her chances.103 The plaintiff’s knowledge and awareness of the danger are important factors in this defense. For example, a boy playing basketball was injured when his arm went through a glass pane in a door immediately behind the basketball backboard. The court later said that the boy had not assumed the risk of such an injury. The boy did not know the glass in the door was not shatterproof.104 However, another court held that a boy had assumed the risk when he suffered an injury by colliding with a doorjamb in a brick wall while playing as a voluntary member of a basketball team in a school gymnasium. The boy had played in the gym previously and knew the location of the basket, the door, and the wall and therefore was aware of the danger involved in voluntarily playing in this particular gymnasium.105 In a case where a classmate was sitting on the third baseline during a softball game and was struck by the batter, the court said the child who was struck either assumed the risk or was contributorily negligent.106 Courts have generally established that participants in athletic events, whether intramural or interscholastic, assume the risk of the normal hazards of the game. This rule also applies to spectators attending sports or amusement activities. Spectators assume all the obvious or normal risks of being hurt by flying balls,107 fireworks,108 or the struggles of combatants.109 Everyone has seen spectators knocked down along the sidelines of football games by players careening off the field. A high school girl was injured precisely in this fashion as she was standing by the sidelines and was run over by football players. The court found against the plaintiff, following prevailing precedent, and said that a spectator at a sporting event assumes risks incident to the game. This is especially true when the spectator chooses to stay at an unsafe place despite the availability of protected seating.110 Essential to the doctrine of assumption of risk is that the plaintiff has knowledge of the risks;
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if she or he is ignorant of the conditions and dangers, she or he does not assume the risk. If reasonable precautions are not taken to determine the hazards involved, then she or he has not assumed the risk but may have been contributorily negligent instead. However, neither a participant nor a spectator assumes the risk for negligence or willful or wanton conduct of others. For example, a spectator at an athletic contest does not assume the risk of the stands falling at a football game, nor does she or he assume that when attending a baseball game, a player will intentionally throw a bat into the stands.
IMMUNITY Immunity from tort liability is generally conferred on (1) national and state governments unless abrogated by statute; (2) public officials performing quasi-judicial or discretionary functions; (3) charitable organizations, granted immunity in some states; (4) infants under certain conditions; and (5) insane persons in some cases. Where public schools are concerned, the defense of immunity is usually employed to protect the public school district against liability.111 This governmental or sovereign immunity is a historical and common-law precedent that protects a state agency against liability for its torts. Because of the importance of this concept and its frequent applicability in public school tort cases, governmental or sovereign immunity is treated separately in Chapter 14.
Spectator Who Fell from Bleachers Without Back Supports Was Contributorily Negligent
Funston v. School Town of Munster Supreme Court of Indiana, 2006. 849 N.E.2d 595.
DICKSON, Justice. Contributory negligence is generally a question of fact requiring trial by jury or court, but summary judgment may be proper where the
undisputed facts and resulting inferences establish that the defendant is entitled to judgment as a matter of law. This is such a case. We affirm the trial court’s grant of summary judgment. Howard Funston was injured when he fell from a set of bleachers while watching his son participate in an Amateur Athletic Union (AAU) basketball game at the Munster High School gymnasium. Mr. Funston and his wife, the plaintiffs–appellants, thereafter commenced this action against the School Town of Munster (“the school”), Continental Leisure Sales, Inc. f/k/a Seavey Corp., AAU/Munster Basketball Club, and another defendant that has since been dismissed. Under an agreement with the AAU, Munster High School provided six identical five-row portable aluminum bleacher sets. Each set of bleachers had no back support for the top row of seating, and none of the sets were pushed against a wall. For two games, Mr. Funston sat on the lower seats of two of the six separate but identical sets of bleachers, leaning back on the higher rows of the bleachers for support. During the third game of the day, he sat on the top row of a third set of identical bleachers. In an effort to get comfortable, Mr. Funston crossed his legs and leaned back, falling backwards off the bleachers and sustaining injuries. The school filed a motion for summary judgment, asserting that Mr. Funston was contributorily negligent as a matter of law. The trial court agreed and granted the school’s motion. The Court of Appeals reversed. . . . We granted transfer. The plaintiffs’ claims against the school, a governmental entity, are unlike most Indiana actions for negligence, where a plaintiff’s contributory fault does not bar recovery unless it exceeds fifty percent of the total fault proximately contributing to the damages and otherwise operates only to reduce a plaintiff’s damages in proportion to fault. But the Indiana Comparative Fault Act expressly excludes application to governmental entities, Ind.Code § 34-51-2-2, and thus the common law defense of contributory negligence remains applicable for governmental defendants, such as the school in this case. Therefore, even a slight degree of negligence on the part of Mr. Funston, if proximately contributing to his claimed damages, will operate as
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Defenses for Negligence
a total bar to the Funstons’ action for damages against the school, even though, as against the other non-governmental defendants, any fault of Mr. Funston would only operate to reduce the damages he might obtain. Under the common law defense of contributory negligence, a plaintiff may not recover if guilty of any negligence, no matter how slight, that proximately contributes to the claimed injury. In their appeal from the grant of summary judgment, the Funstons argue that the school failed to establish: (1) that Mr. Funston was contributorily negligent as a matter of law, and (2) that any contributory negligence was a proximate cause of his injuries. A plaintiff is contributorily negligent when the plaintiff’s conduct “falls below the standard to which he should conform for his own protection and safety. Lack of reasonable care that an ordinary person would exercise in like or similar circumstances is the factor upon which the presence or absence of negligence depends.” . . . Expressed another way, “[c]ontributory negligence is the failure of a person to exercise for his own safety that degree of care and caution which an ordinary, reasonable, and prudent person in a similar situation would exercise.” Contributory negligence is generally a question of fact and is not an appropriate matter for summary judgment “if there are conflicting factual inferences.” “However, where the facts are undisputed and only a single inference can reasonably be drawn therefrom, the question of contributory negligence becomes one of law.” The application of these principles has long been expressed as follows: The prevailing Indiana rule is that contributory negligence is generally a question of fact for the jury to determine where the facts are such as to be subject to more than one reasonable inference. However, where the facts are undisputed and only a single inference can reasonably be drawn therefrom, the question of contributory negligence becomes one of law. The undisputed facts are that Mr. Funston fell when he leaned backwards while sitting on the top row of a set of bleachers. He had been at the gym for about four hours, watching two basketball games that morning while sitting on lower rows on other sets of identical bleachers. For the third game, he moved to the top row of one of
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the bleachers. It was clearly visible that there was no back railing for spectators sitting on the top row, but Mr. Funston leaned back anyway. He explained in his deposition: Logically, I would think there would be a back there. I had sat on the other bleachers and I didn’t sit at the top and I had leaned back in several of those bleachers on the next step. . . . I thought there was something back there, . . . I’m not sure what I thought was back there at the time. . . . The Funstons contend in part that “judgment as a matter of law on the issue of contributory negligence is only appropriate when a plaintiff’s ‘knowledge and appreciation of the dangers, inherent in his enterprise and of the defendant’s creation, surpassed or equaled that of the defendant.’ ” . . . A plaintiff’s equal or superior knowledge is not a qualification limiting the common law principle of contributory negligence. It is not a general prerequisite to contributory negligence that a plaintiff’s knowledge and appreciation of the inherent dangers surpassed or equaled that of the defendant. Rather, the existence of such a circumstance will support a finding of contributory negligence as a matter of law. . . . Thus, if it were undisputed that Mr. Funston’s knowledge of the danger was equal or superior to that of the school, this circumstance could compel a finding of contributory negligence as a matter of law. On the other hand, even if we assume for purposes of argument the plaintiffs’ assertion that there is a genuine issue of fact regarding whether Mr. Funston’s knowledge and appreciation of the danger was equal or superior to that of the school’s, this does not preclude a determination that Mr. Funston was contributorily negligent as a matter of law. We do not, however, resolve this case on the equalor-superior-knowledge issue. The plaintiffs primarily argue that a reasonable spectator could be distracted by the game and lean back inadvertently just as Mr. Funston did. They urge that the context of the event makes Mr. Funston’s conduct reasonable. It certainly is understandable that Mr. Funston would be distracted as he engaged his attention on his son’s basketball game. But being understandable does not equate with being completely free of all negligence. We find from the undisputed facts that only a single inference can reasonably
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be drawn: Mr. Funston was negligent to some degree, and this is enough to establish the common law defense of contributory negligence as a matter of law. Even if Mr. Funston was negligent, the plaintiffs alternatively argue that the school failed to establish as a matter of law that any such negligence was a proximate cause of the resulting injuries. An act or omission is said to be a proximate cause of an injury if the resulting injury was foreseen, or reasonably should have been foreseen, as the natural and probable consequence of the act or omission. The Funstons argue that there exists a genuine issue of fact regarding whether the sole proximate cause of Mr. Funston’s injuries was the school’s failure to follow the code and protect against falls from the top of its bleachers. They essentially assert that the facts may be interpreted to show that the school’s negligence, not Mr. Funston’s, was the only proximate cause. We disagree. There can be multiple proximate causes of a resulting event. The defense of proximate cause requires only that a plaintiff’s negligence be “a” proximate cause, that is, one of the proximate causes. It is an undisputed fact that Mr. Funston leaned backwards before ascertaining whether there was something to lean on, a fact easily visible and one that he had ample opportunity to observe. We find that falling backwards and suffering injuries reasonably should have been foreseen as a natural and probable consequence of such acts and omissions, and thus conclude that Mr. Funston’s negligence proximately contributed to his injuries as a matter of law. Upon these facts there is no genuine issue. Finding that the undisputed evidence establishes as a matter of law that Mr. Funston was negligent and that such negligence was a proximate cause of the claimed injuries, we conclude that the trial court was correct to apply the defense of contributory negligence and to grant the school’s motion for summary judgment. Judgment affirmed.
CASE NOTES 1. Standard of Care for Contributory Negligence. A 17-year-old student in Indiana is held to the standard of care of an adult while by Indiana
law a 14-year-old or younger is held to a standard of care of a person of like age. Penn Harris Madison School Corporation v. Howard, 861 N.E.2d 1190 (2007). 2. A school district does not have a special duty to protect nonstudent spectators at a football game. The provision of security by a school district against physical attacks by third parties is a governmental function and no liability arises from the performance of such a function absent a determination that the district had a special duty of protection. A “special duty” is found where a school district assumes an affirmative duty to act on behalf of a “specific” party, and that party justifiably relies on the direct assurances of protection by the officials of the district. The mere addition of security at a high school football game does not give rise to a special duty to protect. Jerideau v. Huntington Union Free School District, 21 A.D. 3d 992, 801 N.Y.S.2d 394 (2005).
Injured Student with Knowledge of Risk Involved Is Contributorily Negligent
Hutchison v. Toews Court of Appeals of Oregon, 1970. 4 Or. App. 19, 476 P.2d 811.
LANGTRY, Judge. Plaintiff appeals from a judgment of involuntary nonsuit, entered on motion of both defendants at the conclusion of the plaintiff’s case. Plaintiff and his friend, Phillip Brown, both fifteen years old, attempted to shoot a homemade pipe cannon which exploded, injuring plaintiff’s hands. They had made the explosive charge by mixing potassium chlorate and powdered sugar. Brown, as plaintiff’s witness, testified that he and the plaintiff had “badgered” defendant Toews, the chemistry teacher at Phoenix High School, for potassium chlorate to use in fireworks experimentation. He said they had asked Mr. Toews for the material about a dozen times.
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Defenses for Negligence
The plaintiff said five or six times. Finally, Mr. Toews had given them some powdered potassium chlorate, which they put in a baby food jar. A day or two later, when Mr. Toews left the separate chemical storage room unattended while he stepped into the adjoining chemistry classroom, Brown took, without Mr. Toews’ knowledge or permission, some crystalline potassium chlorate also stored there. Brown positively identified this crystalline potassium chlorate as the substance used in the explosion. He was the one who mixed the ingredients. The plaintiff equivocated, first indicating that the powdered substance was what was used, but on cross-examination he said, “It looked like crystal.” Brown waited approximately two years after the accident before he revealed to anyone that he had taken the crystalline substance and that it had caused the explosion. The plaintiff did not reveal that he knew the crystalline substance had been taken until after Brown’s disclosure of the true facts. The injury occurred in November 1965. Plaintiff commenced this action for damages against defendant Toews only in June 1966, and filed an amended complaint in August 1967. In these complaints, plaintiff alleged that defendant Toews “supplied” the potassium chlorate to him. . . . Prosser says: [T]he kind of contributory negligence which consists of voluntary exposure to a known danger, and so amounts to assumption of risk, is ordinarily a defense. . . . Prosser, Torts 539, § 78 (3rd ed. 1964).
We think the evidence construed in the light most favorable to plaintiff . . . justifies the judgment of the court. The boys had purchased from a mail order firm in Michigan a pamphlet which gave 100 formulas for explosives. Together, they built the cannon and conducted their experiments. They admitted that they had looked at the warnings in the pamphlet. They had shown the pamphlet to defendant Toews, and he had cautioned them, and told them they should have supervision. He had declined their invitation to supervise them because of another commitment. Among other things, the pamphlet warned: Some of the formulas listed in this booklet are very dangerous to make. Therefore, it is strongly suggested that the making of fireworks be left in the hands of the experienced. . . .
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They had previously experimented with homemade gunpowder in the cannon and in doing so had used up all of their fuses. When they mixed and placed the charge of potassium chlorate and powdered sugar in the cannon, they put the head of a paper match into the fuse hole and tried to light the paper end of the match in order to have time to take cover before the explosion. When Brown tried to light the paper match, wind impeded him. On Brown’s request, plaintiff held his hands around the fuse hole to shield it from the wind. The charge exploded, and the closed pipe end “peeled like a banana.” Plaintiff’s hands were severely injured. The evidence is lengthy, but it is replete with statements from both of the boys that they knew the experiment conducted was dangerous. Plaintiff testified on cross-examination he knew “[t]hat you might get burned if you held onto it, or if you stood too close to it when it did shoot . . . that it might fly up or hit you in the face. . . .” Plaintiff testified he knew that the pamphlet said the formula was very powerful. . . . There are many cases involving tort liability of suppliers of explosives to children. No purpose is served by a detailed discussion of them here. We note that they usually turn on whether the plaintiff had or should have had knowledge and understanding so that he could have avoided the explosion. . . . In the case at bar, the only reasonable conclusion from the evidence was that plaintiff had knowledge of the risk involved, and that he was contributorily negligent as a matter of law. Affirmed.
CASE NOTES 1. In preparation of a project for a science fair, a girl was burned when students attempted to light a defective burner that had gone out and alcohol exploded after the teacher had set the experiment up, checked that it worked correctly, and returned to his regular class. The court, in holding the teacher liable for negligence, said: “[W]here one creates, deals in, handles or distributes an inherently dangerous object or substance . . . an extraordinary degree of care is required of those responsible. . . . The duty is particularly heavy where children are exposed to a dangerous
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condition which they may not appreciate.” The duty was either to positively warn the students not to try to light the burner or to personally supervise; the teacher did neither. Station v. Travelers Insurance Co., 292 So.2d 289 (La. Ct. App. 1974). 2. A trade school welding student was not contributorily negligent when injured by an exploding Freon cylinder. Danos v. Foret, 354 So.2d 667 (La. Ct. App. 1977).
Doctrine of Primary Assumption of Risk Bars Cheerleader’s Recovery for Damages in Negligence Action
Aaris v. Las Virgenes Unified School District California Court of Appeals Second District, 1998. 64 Cal. App. 4th 1112, 75 Cal. Rptr. 2d 801.
YEGAN, Associate Justice. Not so very long ago, a row of docile cheerleaders would say, “rah, rah, rah, sis-boombah”—maybe a leg would kick up into the air, perhaps a jump under the cheerleader ’s own power. This would take the cheerleader a foot or so off the ground. That, however, was yesterday. Today, even appellant recognizes “. . . the acrobatic gymnastic nature of modern cheerleading.” It is not unusual for modern cheerleaders to perform gymnastic stunts which may catapult a cheerleader many feet into the air. What goes up, must come down. This includes cheerleaders. Whenever gravity is at play with the human body, the risk of injury is inherent. While an appellate court has the power to change the law, we cannot change the law of gravity. We sympathize with an injured cheerleader and any student injured while participating in extracurricular activities which are inherently dangerous. Such activities are, however, voluntary. There are benefits and burdens associated with such activities. Unfortunately, some students participating in such activities are injured.
As we shall explain, the doctrine of primary assumption of the risk bars a cheerleader’s negligence lawsuit against the school district. Denning Aaris, . . . [a]ppellant, a sophomore at Agoura High School, injured her knee performing a gymnastic stunt at cheerleader practice. Appellant injured her right knee practicing a gymnastic stunt called the “cradle.” The stunt requires that two cheerleaders face each other to form a “base” and launch a third cheerleader, the flyer, into the air. After the flyer pikes, she descends toward the ground where the base cheerleaders are supposed to catch her. A fourth cheerleader acts as a spotter to assist in the catch. Even this brief description demonstrates the obvious: being a modern cheerleader requires team work, athletic skill, physical strength, and the courage to attempt a potentially dangerous gymnastic stunt. On November 16, 1994, the cheerleaders practiced in the wrestling room. Appellant and Lindsey Goldstein paired off to form the base and launched the flyer, Sharili Brown, into the air. Brown came down awkwardly, scratching their faces. Appellant told Coach Eileen McGrew that they were having problems cradling Brown. Coach McGrew said that they had “bad technique” and “need to keep on trying it over and over again.” The cheerleaders went outside to practice on the athletic field. Appellant felt uncomfortable performing in front of others and asked: “Do we have to do this stunt?” Coach McGrew responded: “You should be doing it every single time.” Appellant’s squad tried to do the cradle. Coach McGrew stood close by to assist. Appellant and Goldstein launched Brown into the air. Brown wobbled and fell on appellant, injuring her leg. Appellant had received stunt training while she was on the freshman high school cheerleading squad. In 1993, she participated in tryouts and made the junior varsity cheerleader team. Appellant received formal instruction in stunt technique and safety, and knew that the stunts were dangerous. Indeed, as a freshman, she injured her left knee performing a toe-touch stunt. At the hearing on the summary judgment motion, the trial court stated: “The facts on this motion show that the plaintiff received adequate safety and technique instruction, but they do not
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Defenses for Negligence
show that the flier had received adequate safety and technique instruction.” The court continued the hearing and ordered the parties to file supplemental papers. School District filed a declaration by the flyer, Sharili Brown, stating: “I attended a four-day cheerleading camp which was held in Santa Barbara. I attended this camp with Ms. McGrew and the cheerleading squads from our school. During the course of the camp, all of the cheerleaders, including myself, received many hours of formal instruction in safety and the use of proper technique while executing basic cheerleading stunts and maneuvers. The instruction we received included demonstration and discussion which concerned the proper technique for executing the ‘cradle.’ ” Coach McGrew declared that the cheerleaders received formal instruction in technique and safety in performing the cradle stunt. “This instruction was provided by myself on a daily basis, as well as by outside professionals who visited the school. All of this instruction was additional to that received at the Santa Barbara camp.” . . . The trial court granted summary judgment ruling that appellant assumed the risk of injury: “It seems clear that modern cheerleading . . . now incorporates elements of gymnastics and tumbling and is done in group form, with body contact. And orthopedic injuries of this type caused by miscalculation or improper athletic form or skill of the co-participants is an inherent risk in the sport or activity of modern cheerleading, as it is practiced in this case.” . . . . . . The question here is one of law, i.e., whether the respondent breached a duty to protect appellant from injury when she performed the gymnastic stunt. . . . In a sports setting, “the existence and scope of a defendant’s duty of care is a legal question which depends on the nature of the sport or activity in question and on the parties’ general relationship to the activity, and is an issue to be decided by the court, rather than the jury.”. . . . Appellant argues that doctrine of primary assumption of risk does not apply where the negligence action is brought against the instructor or coach, as opposed to the sports co-participant. We disagree. “An instructor is not an insurer of the student’s safety. . . .”
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The record shows that Coach McGrew did not increase the risk of harm inherent in the gymnastic stunt. The cheerleaders were told to practice and develop their technique. There was no evidence that Coach McGrew took the team beyond its level of experience and capability and the action is barred by the doctrine of primary assumption of the risk. . . . Here the sports injury occurred on school grounds, during school hours, while Coach McGrew was supervising and training the cheerleaders. The trial court reasonably ruled that there were no triable facts that Coach McGrew failed to properly supervise appellant and her teammates. Education Code section 44807 does not “trump” the doctrine of primary assumption of risk where a high school cheerleader participates in cheerleading stunts as a class elective activity and the activity is supervised by an experienced coach. Appellant maintains that Coach McGrew owed a greater duty of care because some of the cheerleaders had not mastered the cradle stunt. The argument lacks merit and assumes that more supervision would have reduced the risk of harm. Coach McGrew was not an insurer of appellant’s physical safety. . . . We conclude that the gymnastic activity, i.e., the cradle stunt, created the risk of harm. . . . Appellant knew that the stunt was dangerous and practiced the cradle stunt “for several months” before the injury. There are no triable facts that respondent increased the risk of harm beyond that which was inherent in the gymnastic activity. . . . Appellant opines that Coach McGrew could have reduced the risk of harm by instructing the stunt team to use a different flyer. The argument is without merit. “Under primary assumption of risk, the defendant has a duty not to increase the risks inherent in the sport, not a duty to decrease the risks.” . . . Were we to hold that respondent has liability for appellant’s injury, it would fundamentally alter the nature of high school cheerleading, perhaps heralding the return of that docile row of cheerleaders. School districts would be strictly liable for injuries occurring in this extracurricular athletic activity. This would either chill, or perhaps even kill, high school cheerleading. . . . The judgment is affirmed. Costs to respondent.
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Female Student Assumed the Normal, Obvious Risks of Injury in Choosing to Play Tackle Football
Hammond v. Board of Education of Carroll County Maryland Court of Special Appeals, 1994. 100 Md. App. 60, 639 A.2d 223.
MOTZ, Judge. On August 25, 1989, appellant, Tawana Hammond, the first female high school football player in Carroll County history, was injured in her team’s initial scrimmage. Three years later, Tawana and her mother, appellant Peggy Hammond (collectively, the Hammonds), filed suit in the Circuit Court for Carroll County against appellee, the Board of Education of Carroll County (the Board), seeking $1.25 million in compensatory damages. The Hammonds asserted (1) that the high school authorities negligently failed to warn them of the potential risk of injury inherent in playing football and (2) that if they had been so warned Tawana would not have chosen to play football and her mother would not have permitted her to do so. After the parties conducted discovery, the Board moved for summary judgment, which the circuit court (Beck, J.) granted. The record reveals that the underlying material facts are not disputed. Sixteen-year-old Tawana tried out for the Francis Scott Key High School varsity football team in the summer of 1989, prior to the beginning of her junior year in high school. Although Tawana had previously participated in a number of track events and played softball and soccer, she had never engaged in any contact sports. Tawana had watched football on television since she was six years old but did not become interested in football until her freshman year in high school; she had never observed any “really serious” injuries in these televised games, only a “twisted ankle or something.” She saw a half dozen high school games during her freshman and sophomore years and saw no players hurt at those games.
Tawana knew football was a “physical contact sport” and determined she wanted to play it because “[i]t was different.” In order for a student to play sports at Francis Scott Key High School, the student and the student’s parent must sign a document entitled “Francis Scott Key High School Athletic Regulations and Permission Form.” Both Tawana and her father, John Hammond (not a party herein), signed this form on June 18, 1989. The permission form states that the student has read the school handbook and regulations and agrees to abide by them and that the parent has read them and “consents” to the child’s participation in the sport. One sentence in the permission form specifically states that “[w]e do our very best to avoid accidents, but we realize that in the normal course of events, some occur.” In deposition, Tawana testified that she read the permission form and, in particular, this sentence before she started playing football and understood that she “could get a broken leg, [or] broken arm” as a result of playing varsity, tackle football. . . . As practices continued, Tawana had no difficulty in keeping up physically with the other players on the team. On August 25, 1989, Tawana, along with the rest of the Francis Scott Key High School varsity football team, traveled to Anne Arundel County for the team’s first practice scrimmage. Prior to the scrimmage, Tawana was interviewed by a television reporter and stated that “[p]laying football is a tough sport. I do have to admit that.” During the scrimmage, while carrying the ball, Tawana was tackled by a rival player and sustained multiple internal injuries including a ruptured spleen. Her spleen and part of her pancreas were removed, and she was hospitalized for some time. On August 13, 1992, Tawana and her mother filed this suit. The circuit court granted summary judgment to the Board, concluding that (a) it had no duty to warn “of the risk of serious, disabling and catastrophic injury associated with playing on a high-schoolvarsity, tackle, football team”; (b) if there was a duty to warn the Hammonds it was satisfied; and (c) Tawana and her mother assumed the risk of injury as a matter of law. . . . The central theory espoused by the Hammonds, that the school board had a duty to warn them of the severe injuries that might result from
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Defenses for Negligence
voluntarily participating on a varsity high school tackle football team, is one that, as far as we can determine, has never been adopted by any court in this country. There are, to be sure, numerous cases in which minors injured while playing in school sporting events have sued school officials (or others similarly situated) asserting that the officials’ negligence caused the participant’s injuries. . . . In none of these cases, however, have the plaintiffs successfully asserted that the school officials were negligent because of some failure to warn the plaintiffs of the possible dangers involved in voluntarily participating in the contact sport. In the past, plaintiffs have made claims of negligence because of asserted inadequate or improper supervision, . . . instruction or training, . . . and inadequate equipment, . . . but the parties have not cited and we have not uncovered any case in which a plaintiff, in circumstances similar to the Hammonds’, has successfully made a negligence claim based on a failure to warn of possible physical injury. Perhaps this is because permeating the sports injury cases is the recognition that “[p]hysical contact in . . . an athletic contest is foreseeable and expected.” . . . The “general rule is that participants in an athletic contest accept the normal physical contact of the particular sport.” Absent evidence of “mental deficiency,” and there is no claim that Tawana is not at least of average intelligence, minors are held to “sufficiently appreciate the dangers inherent in the game of football,” . . . to know that “football is a rough and hazardous game and that anyone playing or practicing such a game may be injured,” . . . and that “[f]atigue, and unfortunately, injury are inherent in team competitive sports, especially football.” . . . Thus, it is “common knowledge that children participating in games . . . may injure themselves and . . . no amount of supervision . . . will avoid some such injuries, and the law does not make a school the insurer of the safety of pupils at play.” . . . As the Supreme Court of Oregon explained in rejecting a similar claim by a fifteen-year-old injured in a football game, the playing of football is a body-contact sport. The game demands that the players come into physical contact with each other constantly, frequently with great force. . . .
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[T]he ball carrier . . . must be prepared to strike the ground violently. Body contacts, bruises, and clashes are inherent in the game. There is no other way to play it. No prospective player need be told that a participant in the game of football may sustain injury. That fact is self[-]evident. . . . For these reasons, courts have been extremely inhospitable to claims that properly equipped, injured high school players should be able to recover from school officials for injuries sustained during an ordinary, voluntary contact sport game. Thus, in the vast majority of such cases, it has been held that those asserting such claims cannot recover as a matter of law. . . . That principle is well established in Maryland. The Court of Appeals explained more than twenty-five years ago that when a pleading alleges a danger that is “ordinary and obvious,” it has not sufficiently alleged “circumstances which would require the defendants to give a warning.” . . . Here the hazard alleged—the possibility of injury to a voluntary participant in a varsity high school tackle football game—was “the normal, obvious and usual incident” of the activity. . . . In light of our conclusion that the Board had no duty to warn the Hammonds, we need not reach the question of whether Tawana assumed the risk as a matter of law. . . . Although she has not stated a cause of action against the Board, Tawana’s injuries were serious, painful, and permanent. We regret them and sympathize with her. Our holding here, that school officials have no duty to warn a student or the student’s parents that serious injury might result from the student’s voluntary participation on a high school varsity tackle football team, does not mean that such a warning would not be a sound idea as a matter of public policy. Young men—and women—of the same age, who wish to participate in the same team contact sports, vary considerably in weight and size; unfortunately, the sport may occasionally pit the brawniest against the most slender. In view of the very serious injuries suffered by Tawana, school officials may well want to consider issuing a warning of the possibility of such injuries—even though there is no legal obligation to do so. Judgment Affirmed. Costs to be paid by Appellants.
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CASE NOTES 1. Assumption of Risk. A student assumes the normal “foreseeable consequences” of participation in a contact school sport. In a Florida case where some players were not issued football helmets for a nontackle, but contact, practice, plaintiff suffered a bad mouth injury, and the court found that neither the school district nor the coaches could defend by claiming the injured student assumed the risk. The court concluded that there was “no evidence that [the injured student] assumed the risk of participating in a training drill which was improperly supervised and for which he had improper and insufficient equipment.” Moreover, the court found that an intervening cause that is foreseeable cannot insulate a defendant from liability. Leahy v. School Board of Hernando County, 450 So.2d 883 (Fla. Dist. Ct. App. 1984). 2. The student must voluntarily assume the risk of participation in the particular activity. Compulsion or “indirect compulsion” strong enough to compel participation overcomes the defense of assumption of risk. See Benitez v. New York City Board of Education, 73 N.Y.2d 650, 543 N.Y.S.2d 29, 541 N.E.2d 29 (1989). 3. With regard to assumption of risk, the Latin aphorism is applicable: “One who consents to an act does not suffer a compensable injury.” Benitez, 541 N.Y.S.2d at 32. Judge Benjamin Cardozo best stated the assumption-of-risk theory in the “Flopper” amusement ride case. He said: One who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary, just as a fencer accepts the risk of a thrust by the antagonist or a spectator at a ball game the chance of contact with the ball. Murphy v. Steeplechase Amusement Co., 250 N.Y. 479, 482, 166 N.E. 173, 174 (1929).
4. Assumption of risk is integral to athletic competitions where participants are held to assume normal risks by their actual or implied consents to play the game. Normal risks are those “injury-causing events of reasonably foreseeable consequences of the participation.” Participants do not consent to events that may transpire in the activity that are not assumed to be normal and certainly do not assume those risks that are reckless or intentional. Turcotte v.
Fell, 68 N.Y.2d 432, 510 N.Y.S.2d 49, 502 N.E.2d 964 (1986). Awareness of the risk assumed is “to be assessed against the background of the skill and experience of the particular plaintiff, and in that assessment a higher degree of awareness will be imputed to a professional than to one with less than professional experience in the particular sport.” Maddox v. City of New York, 66 N.Y.2d 270, 278, 496 N.Y.S.2d 726, 729, 487 N.E.2d 553 (1985). Players who voluntarily join in extracurricular interscholastic sports assume the risks to which their roles expose them but not the risks that are “unreasonably increased or concealed.” McGee v. Board of Education, 16 A.D. 2d 99, 102, 226 N.Y.S.2d 329, 332 (1962), leave denied, 13 N.Y.2d 596, 243 N.Y.S.2d 1025, 193 N.E.2d 644 (1963).
EXCULPATORY RELEASES To exculpate is to excuse or provide justification for fault. Exculpatory notes or letters are for the purpose of clearing or tending to clear one from wrong or guilt.112 Release letters or permission notes from parents for students to participate in certain school activities have been utilized by many school districts in an effort to absolve a school or teacher from liability should a student be injured. Many school districts require students to sign or have their parents sign such forms as a condition of participation in various school activities, especially athletic programs.113 Such instruments have been viewed to have value as evidence of assumption of risks of certain school activities. Yet these permissions have not been completely satisfying for many legal authorities because the nature of tort law itself does not provide for the parent to waive the right of a child to recover damages for an injury. Nor do such releases relieve the duty of a school official or teacher to act reasonably in protecting the student. The waiver or permission given by the parent is presumed to be contractual, the quid pro quo, for the child’s participation in the school activity. According to the Washington Supreme Court, exculpatory releases by parents are not only legally ineffectual, but for a school district to require them is invalid and against public policy. This court says that such attempts to gain immunity from liability by public agencies violates good public policy because the parents and
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Defenses for Negligence
children as members of the public, who are seeking the public service of education, are placed under a kind of coercion and control of the school district, the provider of public service. In this court’s view, the school possesses a decisive advantage of bargaining strength against any member of the public (parent and or child) who seeks the services.114 Aside from the public policy question as expounded by the Washington court, other state courts have disregarded exculpatory releases because, as a Maine court has said, parents have no authority to release their child’s possible action in tort. 115 A Tennessee court has likewise asserted that “[t]he law is clear that a guardian cannot, on behalf of an infant or incompetent, exculpate or indemnify against liability those organizations which sponsor activities for children and the mentally disabled.” 116 Another Tennessee court held that exculpatory clauses that purport to contract away liability for intentional conduct, recklessness, or gross negligence are unenforceable. 117 Moreover, a Mississippi court has held that students, because they are minors, cannot sign exculpatory releases, and further, no one can sign for them. This court declared, “Minors can waive nothing. In the law they are helpless, so much so that their representatives can waive nothing for them.”118 Thus, because the legality of this kind of agreement is questionable, some commentators have concluded that such permission notes are therefore worth very little. On the other hand, of late, courts have begun to give weight to such release forms as evidence that there may be a valid parental and student assumption of risk that can, in fact, absolve the school district from liability. California courts have accepted parental exculpation of school districts from negligent acts that can harm their children.119 Two other recent cases that have upheld the validity for exculpatory notes address the other side of the argument. In one case, Sharon v. City of Newton, where a cheerleader was injured rehearsing a pyramid formation, the court upheld a consent note as a valid waiver of liability and stated: Our views with respect to the permissibility of requiring releases as a condition of voluntary participation in extracurricular sports activities, and the enforceability of releases signed by parents on behalf of their children for those purposes are also consistent with and further the public policy
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of encouraging athletic programs for the Commonwealth’s youth . . . to hold that releases of the type in question are unenforceable would expose public schools who offer many of the extracurricular sports opportunities available to children, to financial costs and risks that will inevitably lead to the reduction of those programs.120
A North Dakota court, in Knodrad v. Bismarck Park District, affirmed the value of exculpatory notes as waiver of liability where a child was injured in a bicycle accident on the elementary school property while participating in an afterschool program. The court held that a waiver and release, which was clear and unambiguous, signed by the child’s mother was a valid exoneration.121 Therefore, the precedents are sufficiently bifurcated to suggest that school administrators should not place too much reliance on such attempts to fend off possible tort liability claims. Yet regardless of whether such notes are legally binding, they can do no harm and may have the salutary benefit of communicating with parents as to where and how their children are engaged at school. As Fossey suggests, it is always good advice for school administrators to determine what the law is in their own jurisdictions and to follow it accordingly. Also, in the event that a court could recognize the validity of such documents, it is best to keep them simple, brief, and as clear as possible. And of course one should not be deceived into believing that such releases constitute any kind of surety in lieu of liability insurance.122
Releases That Students or Parents Are Required to Sign as a Condition of Engaging in School Activities and That Exculpate School Districts from Liability for Negligence Are Invalid as Violative of Public Policy
Wagenblast v. Odessa School District No. 105-157-166J Supreme Court of Washington (en banc), 1988. 110 Wash. 2d 845, 758 P.2d 968.
ANDERSEN, Justice. In these consolidated cases we consider an issue of first impression—the legality of public school districts requiring students and their
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parents to sign a release of all potential future claims as a condition to student participation in certain school-related activities. The plaintiffs in these cases are public school children and their parents. Odessa School District students Alexander and Charles Wagenblast and Ethan and Katie Herdrick all desired to participate in some form of interscholastic athletics. As a condition to such participation, the Odessa School District requires its students and their parents or guardians to sign a standardized form which releases the school district from “liability resulting from any ordinary negligence that may arise in connection with the school district’s interscholastic activities programs.” The releases are required by a group of small Eastern Washington school districts, including Odessa, which “pooled” together to purchase liability insurance. The Seattle School District also requires students and their parents to sign standardized release forms as a condition to participation in interscholastic sports and cheerleading. When Richard and Paul Vulliet turned out for the Ballard High School wrestling team, they and their parents were required to sign release forms which released the Seattle School District, its employees and agents “from any liability resulting from any negligence that may arise in connection with the School District’s wrestling program.” . . . One issue is determinative of these appeals. Can school districts require public school students and their parents to sign written releases which release the districts from the consequences of all future school district negligence, before the students will be allowed to engage in certain recognized school related activities, here interscholastic athletics? We hold that the exculpatory releases from any future school district negligence are invalid because they violate public policy. . . . Probably the best exposition of the test to be applied in determining whether exculpatory agreements violate public policy is that stated by the California Supreme Court. In writing for a unanimous court, the late Justice Tobriner outlined the factors . . . : Thus the attempted but invalid exemption involves a transaction which exhibits some or all of the following characteristics. It concerns a business of a type
generally thought suitable for public regulation. The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public. The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards. As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services. In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence. Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.
. . . We agree. Obviously, the more of the foregoing six characteristics that appear in a given exculpatory agreement case, the more likely the agreement is to be declared invalid on public policy grounds. In the consolidated cases before us, all of the characteristics are present in each case. We separately, then, examine each of these six characteristics as applied to the cases before us. The agreement concerns an endeavor of a type generally thought suitable for public regulation. Regulation of governmental entities usually means self-regulation. Thus, the Legislature has by statute granted to each school board the authority to control, supervise, and regulate the conduct of interscholastic athletics. In some situations, a school board is permitted, in turn, to delegate this authority to the Washington Interscholastic Activities Association (WIAA) or to another voluntary nonprofit entity. In the cases before us, both school boards look to the WIAA for regulation of interscholastic sports. . . . Clearly then, interscholastic sports in Washington are extensively regulated, and are a fit subject for such regulation. The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public. This court has held that public school students have no fundamental right to participate
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Defenses for Negligence
in interscholastic athletics. Nonetheless, the court also has observed that the justification advanced for interscholastic athletics is their educational and cultural value. . . . Given this emphasis on sports by the public and the school system, it would be unrealistic to expect students to view athletics as an activity entirely separate and apart from the remainder of their schooling. . . . In sum, under any rational view of the subject, interscholastic sports in public schools are a matter of public importance in this jurisdiction. Such party holds itself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards. Implicit in the nature of interscholastic sports is the notion that such programs are open to all students who meet certain skill and eligibility standards. . . . Because of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks the services. Not only have interscholastic sports become of considerable importance to students and the general public alike, but in most instances there exists no alternative program of organized competition. . . . While outside alternatives exist for some activities, they possess little of the inherent allure of interscholastic competition. . . . In this regard, school districts have near-monopoly power. And, because such programs have become important to student participants, school districts possess a clear and disparate bargaining strength when they insist that students and their parents sign these releases. In exercising a superior bargaining power, the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence. Both school districts admit to an unwavering policy regarding these releases; no student athlete will be allowed to participate in any program without first signing the release form as written by the school district. In both of these cases, students and their parents unsuccessfully attempted
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to modify the forms by deleting the release language. In both cases, the school district rejected the attempted modifications. Student athletes and their parents or guardians have no alternative but to sign the standard release forms provided to them or have the student barred from the program. The person or property of members of the public seeking such services must be placed under the control of the furnisher of the services, subject to the risk of carelessness on the part of the furnisher, its employees or agents. A school district owes a duty to its students to employ ordinary care and to anticipate reasonably foreseeable dangers so as to take precautions for protecting the children in its custody from such dangers. This duty extends to students engaged in interscholastic sports. . . . The student is thus subject to the risk that the school district or its agent will breach this duty of care. In sum, the attempted releases in the cases before us exhibit all six of the characteristics. . . . Because of this, and for the aforesaid reasons, we hold that the releases in these consolidated cases are invalid as against public policy. . . . The remaining aspect of these appeals which merits discussion is the Legislature’s role in deciding such matters of public policy. By act of the territorial Legislature of 1869, school districts were made liable for their acts of negligence. At the 1917 session of the State Legislature, a bill to absolutely immunize school districts from negligence passed the Senate, but the bill which was ultimately enacted that year was a compromise; that compromise barred actions against school districts for non-contractual acts or omissions relating to any park, playground, field house, athletic apparatus or appliance or manual training equipment. This compromise statute, in turn, was repealed some years later—by the 1967 Legislature. Thus, since territorial days, the State Legislature has generally followed a policy of holding school districts accountable for their negligence. Our decision today is in general accordance with that policy. Legislative policies may, of course, change with changing conditions. This opinion is not to be construed as precluding school districts from attempting to convince the Legislature that their problems in this area require a legislative
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response of one kind or another. The Legislature through its hearing processes is well suited to making such inquiries and has tools and resources adequate to the task. The decision of the trial court in the Odessa School District case is affirmed and the decision of the trial court in the Seattle School District case is reversed.
CASE NOTES 1. Validity of Exculpatory Releases. Courts in several jurisdictions have held exculpatory releases to be invalid, reasoning that releases signed by a parent waiving child’s future claims violates public policy. Fedor v. Mauwehu Council, Boy Scouts of America, Inc., 21 Conn. Supp. 38, 143 A.2d 466 (1958). A parent cannot waive, compromise, or release minor child’s cause of action. Meyer v. Naperville Manner, Inc., 262 Ill. App. 3d 141, 634 N.E.2d 411 (1994). A release by a parent signed before son’s hockey injury is void as to child’s right to a cause of action. Doyle v. Bowdoin College, 403 A.2d 1206 (Me. 1979). A release signed by a mother of a boy is invalid as to the boy’s cause of action, but is valid as to the mother’s cause of action. Childress v. Madison County, 777 S.W.2d 1, (Tenn. Ct. App. 1989). A release signed preinjury by a parent does not bar a child’s cause of action. Scott v. Pacific W. Mountain Resort, 119 Wash. 2d 484, 834 P.2d 6 (1992). However, courts in other jurisdictions have held releases valid. A parent may execute a release on behalf of a minor child. Hohe v. San Diego Unified School District, 224 Cal. App. 3d 1559, 274 Cal. Rptr. 647 (1990). A mother’s release of a minor child’s claims for negligence is valid and enforceable. Cooper v. United States Ski Association, 32 P.3d 502 (Colo. Ct. App. 2000). A mother has the parental authority to bind a minor child to an exculpatory agreement. Zivich v. Mentor Soccer Club, Inc., 82 Ohio St. 3d 367, 696 N.E.2d 201 (1998). 2. Exculpatory releases may be of assistance to a school district as evidence in a trial in support of the district’s affirmative defense at trial. Such releases, specifying the dangers of the school activity, athletics contests, etc., that state that serious injury or even death could occur
in the normal conduct of the activity may be introduced for the limited purpose that school personnel did not abuse their discretion when injury occurred. Stowers v. Clinton Central School Corporation, 855 N.E.2d 739 (Ind. Ap. 2006). 3. Exculpatory Releases as Contract. Another twist to the issue of exculpatory releases is: Can a person on reaching the age of majority repudiate an exculpatory release that she signed when under-age? The answer is “yes,” as to common law. Common law, as far back as the year 1282, permits disaffirmations of such releases. Williston on Contracts, § 9.2 (4th ed. 1993), citing Y.B. 20 and 21 Edw. at 318 (1292). Under common law, “any contract, except one for necessaries, entered into by an unemancipated minor could be disaffirmed by him before he reached the age of [eighteen] or within a reasonable time thereafter.” Slaney v. Westwood Auto, Inc., 366 Mass 688, 322 N.E.2d 768 (1975). State statutes, of course, may modify this common law rule, but the law usually remains that the contract of a minor is voidable when he reaches the age of majority. Sharon v. City of Newton, 437 Mass. 99, 769 N.E.2d 738 (2002). 4. Public Policy and Exculpatory Releases. The Massachusetts court, in analyzing the issue of exculpatory releases, concluded that such are valid as a matter of public policy. The court said that enforcement of exculpatory releases furthered a public policy of encouraging athletic programs for the health and fitness of the state’s youth. To expose schools and municipalities to liability would discourage this public policy objective. Specifically, the court said: “to hold that releases . . . are unenforceable would expose public schools, who offer many of the extracurricular sports opportunities available to children, to financial costs and . . . risks . . . and will inevitably lead to the reduction of those programs.” Sharon v. City of Newton, 437 Mass. 99, 769 N.E.2d 738 (2002).
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Educational Malpractice
Several courts in recent years have issued opinions on cases that fall under a general classification of educational malpractice. Such cases are
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Educational Malpractice
not a separate area of law, but instead represent an expansion of the traditional tort law concept as applied to the educational setting. Basically, educational malpractice is an attempt to apply tort law to educational outcomes in such a way as to redress a student for knowledge deficiencies allegedly created by some substandard treatment of the student during the educational process. Evidence to support an allegation of intentional tort would seem to be very difficult to provide unless one could show that an educator, for some malicious purpose, set out to prevent a child from obtaining an education. The possibility of maintaining an action for intentional tort was recognized by a Maryland court when it stated: “It is our view that where an individual engaged in the education process is shown to have willfully and maliciously injured a child entrusted to his educational care, such outrageous conduct greatly outweighs any public policy considerations which would otherwise preclude liability so as to authorize recovery.”123 The more common application of tort to redress a student’s educational deficiencies is found in negligence. Here it is maintained that educators failed to act reasonably in meeting a student’s educational needs. Such actions, though, have met with little or no success, as the courts have established an imposing array of precedents denying students damages. The courts have generally denied redress for three reasons: “the absence of a workable rule of care against which defendant’s conduct may be measured, the inherent uncertainty in determining the cause and nature of any damages, and the extreme burden which would be imposed on the already strained resources of the public school system to say nothing of the judiciary.”124 The first reason given is, of course, related directly to the negligence question. How can a court enunciate a standard of care without a clear determination of the actual duty owed to the student? Does the educator have a duty to fill the vessel of the student’s mind with a given amount of knowledge, and if the vessel remains half full, does the educator, student, parent, or society bear the blame?
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The problem of delineating an actionable duty was recognized by a California court in Peter W. when it explained: The “injury” claimed here is plaintiff’s inability to read and write. Substantial professional authority attests that the achievement of literacy in the schools, or its failure, is influenced by a host of factors which affect the pupil subjectively, from outside the formal teaching process, and beyond the control of its ministers. They may be physical, neurological, emotional, cultural, environmental; they may be present but not perceived, recognized but not identified.125
In such a situation, the court could not find that the student had suffered injury within the meaning of negligence law, nor could it identify a workable “rule of care” that could be applied. Neither could the court find a causal relationship between any perceived injury and the alleged negligent commission or omission by the defendant. A New York court drew a conclusion similar to that in Peter W. and further maintained that judicial interference in this area would constitute a “blatant interference” with the administration of the public school system.126 In agreement with these courts, the court in Hunter said: To allow petitioners’ asserted negligence claims to proceed would in effect position the courts of this state as overseers of both the day-to-day operation of our educational process as well as the formulation of its governing policies. This responsibility we are loath to impose on our courts.127
Other courts have likewise rejected plaintiffs’ tort claims in negligence actions.128 In Donohue v. Copiague Union Free School District, a New York Court of Appeals summed up the prevailing view of the courts regarding educational malpractice; this court in rejecting the concept said: To entertain a cause of action for “educational malpractice” would require the courts not merely to make judgments as to the validity of broad educational policies—a course we have unalterably eschewed in the past—but, more importantly, to sit in review of the day-to-day implementation of these policies. Recognition in the courts of this cause of action would constitute a blatant interference with the responsibility for the administration of the public school system. . . .129
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In a similar rejection of the idea of the tort of malpractice applied to public schools, an Ohio appellate court said that an “ ‘educational malpractice’ action cannot be disguised under the legal rubric of ‘breach of duty of good faith or fair dealing,’ ”130 nor can a legal action in educational malpractice be justified as “substandard educational services” under a state Consumer Sales Practice Act.131 In the final analysis, it does not appear that tort actions for educational malpractice will have much traction with the courts in the future. In actuality, with the statutory requirements for educational quality that have been enacted at both the state and federal levels, coupled with state constitutional provisions addressing the ongoing issues of equality and efficiency of public school systems, the necessity for a tort for educational malpractice would appear to be very much diminished.
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Summation of Case Law
Negligence 1. To maintain a cause of action for negligence, a plaintiff must establish four elements: (1) a legally cognizable duty owed by the defendant to plaintiff, (2) a breach of that duty, (3) that defendant’s conduct proximately caused the injury, and (4) there was actual loss or damage to the plaintiff. 2. A plaintiff who asserts a cause of action based on negligence has the burden to establish a standard of care and prove, by a preponderance of the evidence, that the defendant deviated from that standard of care. Duty and Foreseeability 1. In determining whether a duty of care exists, a court must first consider the foreseeability of the harm to a potential plaintiff, and then analyze whether accepted policy considerations support the imposition of a duty. 2. Foreseeability of an injury, as it affects the existence of a duty, refers to the knowledge of the risk of injury to be apprehended. 3. The risk that is reasonably to be perceived defines the duty to be obeyed. It is the risk that can be reasonably anticipated within the range of apprehension.
4. The ability to foresee harm does not in itself establish the existence of a duty, but it is a crucial element in determining whether the imposition of a duty on an alleged tortfeasor is appropriate. 5. Beyond foreseeability, the question of whether a duty exists is one of fairness and policy that implicates many factors. Inquiry involves identifying, weighing, and balancing four factors: (1) the relationship of the parties, (2) the nature of the attendant risk, (3) the opportunity and ability to exercise care, and (4) the public interest in the proposed solution. Reasonable Supervision 1. Parents entrust their children to the care of schools, and educators have no greater obligation than to protect the children in their charge from foreseeable dangers, whether those dangers arise from the careless acts or intentional transgressions of others. 2. School officials have a general duty to exercise reasonable supervisory care for the safety of students entrusted to them and are accountable for injuries resulting from failure to discharge that duty. 3. The relationship between a school, children, and parents encompasses the school’s responsibility to ensure the safety of the children in its charge. It logically flows from that relationship that school officials must reasonably supervise children throughout the school day, including after-hours dismissal time. 4. Because parents relinquish their supervisory role over their children to teachers and administrators during school hours, and thus transfer to school officials the power to act as guardians, school officials have a duty to the students until those officials have successfully monitored the students through after-hours dismissal. 5. Because it is consistent with a state’s recognized goal of ensuring student safety during school hours, public policy strongly supports a school’s duty to ensure reasonable supervision of students at dismissal extending after formal school hours. 6. The duty of educators to exercise reasonable care in supervising students during dismissal requires school districts to create a reasonable dismissal supervision policy, to provide suitable notice to parents of that policy, and
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Research Aids
7.
8.
9.
10.
11.
to effectively comply with the policy and any subsequent parental requests concerning the times that children are dismissed from school in the afternoons. A school district may be held liable for injuries suffered by a student off school premises and after school hours if the injury resulted from the school’s negligence while the student was on school premises. Although a school district is not the insurer of students’ safety, school districts have a duty to supervise the conduct of students on school grounds and to enforce rules and regulations necessary for students’ protection. The standard of due care imposed on school authorities in exercising their supervisory responsibilities is that degree of care which a person of ordinary prudence, charged with comparable duties, would exercise under the same circumstances. School personnel are not required to “scout the neighborhood” for gang members before releasing students for the day. This is the law even if school personnel are aware of the presence of gang members near school and the school officials do not have any specific indication of real or imminent gang-related threat at a particular time and place. A school board is not independently liable for injury to a student injured in a fight where a bullying attack took place suddenly and without warning and where there had been no prior history of violence between the attackers and the victim.
Contributory Negligence 1. Under the common-law defense of contributory negligence, a plaintiff may not recover if guilty of any negligence, no matter how slight, that proximately contributes to the claimed injury. 2. “Contributory negligence” is the failure of a person to exercise, for his own safety, that degree of care and caution which an ordinary, reasonable, and prudent person in a similar situation would exercise. Assumption of Risk 1. Absent evidence of mental deficiency, minors are held to sufficiently appreciate the dangers
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of a game and to know that the game is rough and hazardous, and that anyone playing or practicing the game may be injured. 2. A school has no duty to warn of obvious risks involved posed by participation in voluntary contact sport game. Exculpatory Releases 1. Factors to consider in determining whether an exculpatory agreement violates public policy include: (1) whether agreement concerns business of a type generally thought suitable for public regulation, (2) whether the party seeking exculpation is engaged in the performing of a service of great importance to public, (3) whether the party holds itself out as willing to perform the service for any member of the public who seeks it, (4) whether the party invoking the exculpation possesses decisive advantage of bargaining strength, (5) whether the party invoking exculpation confronts the public with a contract of exculpation, and (6) whether as a result of the transaction, the recipient is placed under control of the conveyer, subject to risk of carelessness by the conveyer or agents. 2. To the extent that the release form, requiring a parental signature as a condition for students participating in interscholastic athletics, relieves the school district of the duty of care, the release is invalid whether it is considered to be a release from liability or an assumption of risk.
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Research Aids
Research citations below are abbreviated as: American Law Reports (A.L.R.), American Jurisprudence (Am.Jur.), Corpus Juris Secundum (C.J.S.), and McQuillen Municipal Corporations (McQuillen Mun.Corp.). Explanations for each of these sources of law are found in Chapter 1 of this text. Also, see Appendix B of this book. 38 A.L.R.3d 830. Tort Liability of Public Schools and Institutions of Higher Learning for Injuries Resulting from Lack or Insufficiency of Supervision. 57 Am.Jur.2d Municipal, etc., Tort Liability § 570. Municipal, County, School and State, Tort Liability: Acts of Fellow Students.
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36 A.L.R.3d 330. Tort Liability of Public Schools and Institutions of Higher Learning for Injuries by Acts of Fellow Students. 34 A.L.R.4th 228. Personal Liability of Public School Teacher in Negligence Action for Personal Injury or Death of Student. 14 Causes of Action 505. Cause of Action to Recover for Injury to or Death of Student Participating in Physical Education Class or School Athletic Activity. 67B Am.Jur. Schools § 180. Schools; Teachers and Employees: Tort Liability and Immunity. 4 Am.Jur. Proof of Facts 2d 87. Teacher’s Failure to Supervise Students. 57A Am.Jur.2d Negligence § 124. Elements of Actionable Negligence: Foreseeability or Probability of Harm. 57A Am.Jur.2d Negligence § 469. Negligence: Proximate or Legal Cause. 100 A.L.R.2d 942. Foreseeability as an Element of Negligence and Proximate Cause. 18A McQuillen Mun.Corp. (3rd ed.) § 53.82.10. Municipal Liability for Torts: Acts of Particular Officers. 24 Am.Jur. Proof of Facts 3d 1. Action by Crime Victim Against School Arising Out of Assault or Criminal Act. 114 Am.Jur. Trials 349. Personal Liability of Public School Principal for Injury or Damage to Student by School District Employee Under Principal’s Supervision. 105 Am.Jur. Proof of Facts 3d 93. Establishing Liability of a Public School for Injuries or Damage to a Student Resulting from Bullying or the Nonsexual Harassment by Another Student. 27A Am.Jur.2d Entertainment and Sports Law § 90. Liability for Personal Injuries: Assumption of Risk and Contributory Negligence. 57B Am.Jur.2d Negligence § 954. Comparative Negligence. 78 A.L.R.3d 339. Modern Development of Comparative Negligence Doctrine Having Applicability to Negligence Actions. 57 Am.Jur.2d Municipal, Schools, etc., Tort Liability § 567. Operation of Public Schools: Liability; Chemistry Labs, Shop Work, Manual and Vocational Training. 25 A.L.R.5th 784. Liability of School or School Personnel for Injury to Student Resulting from Cheerleader Activities.
85 A.L.R.4th 344. Validity, Construction, and Effect of Provision Releasing School from Liability for Injuries to Students Caused by Interscholastic and Other Extracurricular Activities. Law Reviews
Benjamin C. Zipursky, “Torts as Wrongs,” 88 Texas Law Review 917, April 2010. Peter J. Maher, Kelly Price, and Perry A. Zirkel, “Governmental and Official Immunity for School Districts and Their Employees: Alive and Well?” 19 Kansas Journal of Law and Public Policy 234, Winter 2010. Anne M. Payne, “Personal Liability of Public School Principal for Injury or Damage to Student by School District Employee Under Principal’s Supervision,” 114 Am.Jur. Trials 349, 2009. Mary A. Lentz, Lentz School Sec. § 5:17, Negligence and Liability, December 2009. Lawrence T. Kajs, Cheryl A. Vital and Sherrie Folger, “Legal Issues and Responsible Practices for School Chaperones,” 252 Ed. Law Rep. 1, March 2010.
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Endnotes
1. Warren A. Seavey, Page Keeton, and Robert E. Keeton, Law of Torts (St. Paul, Minn.: West, 1957), p. 1. 2. Theodore F. T. Plucknett, A Concise History of the Common Law, 5th ed. (Boston: Little, Brown, 1956), p. 459. 3. Page W. Keeton, Dan B. Dobbs, Robert E. Keeton, and David G. Owen, Prosser and Keeton on Torts, 5th ed. (St. Paul, Minn.: West, 1984), p. 2. 4. Ibid. 5. Ibid., p. 6. 6. William L. Prosser, Law of Torts (St. Paul, Minn.: West, 1971), p. 1. 7. See: Richard A. Mann and Barry S. Roberts, Smith and Roberson’s Business Law, 12th ed. (Mason, Ohio: Thompson, 2003), pp. 101–103. 8. Reynolds v. Pierson, 29 Ind. App. 273, 64 N.E. 484 (1902); State v. Monroe, 121 N.C. 677, 28 S.E. 547 (1897). 9. Restatement (Second) of Torts (St. Paul, Minn.: American Law Institute Publishers, 1977), p. 15. 10. Ibid. 11. Ibid. 12. Keeton et al., op. cit., p. 46. 13. Johnson v. Sampson, 167 Minn. 203, 208 N.W. 814 (1926). 14. State v. Ingram, 237 N.C. 197, 74 S.E.2d 532 (1953). 15. Prosser, op. cit., p. 37. 16. Frazer v. St. Tammany Parish School Board, 774 So.2d 1227 (La. Ct. App. 2001); Robinson v. Dunn, 683 So.2d 894, 897 (La. Ct. App. 1996), writ denied, 687 So.2d 410 (La. 1997).
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Endnotes 17. Suits v. Glover, 260 Ala. 449, 71 So.2d 49 (1954). 18. State ex rel. Burpee v. Burton, 45 Wis. 150 (1878). 19. Gardner v. State, 4 Ind. 632 (1853). 20. Vanvactor v. State, 113 Ind. 276, 15 N.E. 341 (1888). 21. Cooper v. McJunkin, 4 Ind. 290 (1853). 22. Gardner v. State, op. cit. 23. Frank v. Orleans Parish School Board, 195 So.2d 451 (La. Ct. App. 1967). 24. Cooper v. McJunkin, 4 Ind. 290 (1853); Danenhoffer v. State, 69 Ind. 295 (1879). 25. See Riddick v. School Board of City of Portsmouth, 238 F.3d 518 (4th Cir. 2000); Gruenke v. Seip, 225 F.3d 290 (3d Cir. 2000). 26. Neal v. Fulton County Board of Education, 229 F.3d 1069 (11th Cir. 2000). 27. Wallace v. Shoreham Hotel Corp., 49 A.2d 81 (D.C. 1946). 28. Ette v. Linn-Mar Community School District, 656 N.W.2d 62 (Iowa, 2003). 29. Barnett v. Collection Service Co., 214 Iowa 1303, 242 N.W. 25 (1932). 30. Ibid. 31. Fertich v. Michener, 11 N.E. 605 (Ind. 1887). 32. Willoughby v. Lehrbass, 388 N.W.2d 688 (Mich. App.1986). 33. Harris v. County of Forsythe, 921 F. Supp. 325 (1996) and Hassan v. Lubbock Ind. School Dist., 55 F.3d 1075 (5th Cir. 1995). 34. Harwood v. Johnson, 326 N.C. 231, 388 S.E.2d 439 (1990). See also Restatement (Second) of Torts § 35 (1964). 35. Prosser, op. cit, p. 315. 36. Restatement (Second) of Torts, §§ 519–520, pp. 35–39. 37. Keeton et al., op. cit., p. 534. 38. Restatement (Second) of Torts, § 519, p. 35. 39. Ibid., § 520, p. 37. 40. Ibid., § 520, p. 36. 41. Ibid., § 520, p. 37. 42. Keeton et al., op. cit., § 79, p. 563. 43. Restatement (Second) of Torts, § 510, p. 20 and § 520, pp. 45–46. 44. Ibid. 45. Ibid. 46. Nottingham v. Akron Board of Education, 81 Ohio App. 3d 319, 610 N.E.2d 1096 (1992). 47. See Kern Alexander and Erwin Solomon, College and University Law (Charlottesville, Va.: Michie, 1972), pp. 590–602. 48. Prier v. Horace Mann Insurance Co., 351 So.2d 265 (La. Ct. App. 1977). 49. Lewis v. St. Bernard Parish School Board, 350 So.2d 1256 (La. Ct. App. 1977). 50. Keeton, et al., op. cit. p. 173. 51. Ibid., § 32, pp. 173–174. 52. Ibid. 53. Lehmuth v. Long Beach Unified School District, 53 Cal. 2d 544, 2 Cal. Rptr. 279, 348 P.2d 887 (1960). 54. Michigan Central Railroad Co. v. Hasseneyer, 48 Mich. 205, 12 N.W. 155 (1882). 55. Johnson v. St. Paul City Railway Co., 67 Minn. 260, 69 N.W. 900 (1897); Kitsap County Transportation Co. v. Harvey, 15 F.2d 166 (9th Cir. 1927).
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56. In criminal law, the courts have applied the rule as established in M’Naghten’s Case, 10 Ct. & F. 200, 8 E.R. 718 (1843), which holds the defense of insanity can be established only by showing that the accused was “laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know what he was doing was wrong.” 57. Williams v. Kearbey, 13 Kan. App. 2d 564, 775 P.2d 670, 672 (1989). 58. Morris v. Douglas County School District, No. 9, 241 Or. 23, 403 P.2d 775 (1965). 59. Osborne v. Montgomery, 203 Wis. 223, 234 N.W. 372 (1931). 60. Hoyem v. Manhattan Beach City School District, 150 Cal. Rptr. 1, 585 P.2d 851 (1978). 61. Circillo v. Milwaukee, 34 Wis. 2d 705, 150 N.W.2d 460 (1967). 62. Connett v. Freemont County School District No. 6, 581 P.2d 1097 (Wyo. 1978). 63. Prosser, op. cit., p. 127. 64. The Restatement (Second) of Torts, § 464, states that “[a]ge is only one of the elements to be considered, along with experience and judgment, the latter involving discretion and power of self-control, being predominant.” 65. Cureton v. Philadelphia School District, 798 A.2d 279 (Pa. 2002); City of Philadelphia v. Duda, 141 Pa. Commw. 88, 595 A. 2d 206, 211 (1991), petition for allowance of appeal denied, 532 Pa. 658, 615 A.2d 1314 (1992), quoting Kuhns v. Brugger, 390 Pa. 331, 340, 135 A.2d 395, 401 (1957). 66. Ohman v. Board of Education of City of New York, 300 N.Y. 306, 90 N.E.2d 474 (1949), reargument denied, 301 N.Y. 662, 93 N.E.2d 927 (1950). 67. Eastman v. Williams, 124 Vt. 445, 207 A.2d 146 (1965). 68. Scott v. Greenville Pharmacy, 212 S.C. 485, 48 S.E.2d 324 (1948). 69. Restatement (Second) of Torts, § 430. 70. Prosser, op. cit., p. 252. See Woodsmall v. Mt. Diablo Unified School District, 188 Cal. App. 2d 262, 10 Cal. Rptr. 447 (1961); Munson v. Board of Education, 17 A.D.2d 687, 230 N.Y.S.2d 919 (N.Y. App. Div. 1962), aff’d, 13 N.Y.2d 854, 242 N.Y.S.2d 492, 192 N.E.2d 272 (N.Y. 1963). 71. McDonnell v. Brozo, 285 Mich. 38, 280 N.W. 100 (1938). 72. Meyer v. Board of Education, 9 N.J. 46, 86 A.2d 761 (1952). 73. Mikes v. Baumgartner, 277 Minn. 423, 152 N.W.2d 732 (1967). 74. 116 Am.Jur. Trials 293 (2010). 75. Anne M. Payne, “Establishing Liability of a Public School District for Injuries or Damage to a Student Resulting from Bullying or Other Nonsexual Harassment by Another Student,” 105 Am.Jur. Proof of Facts 3d 93 (2009). 76. Ibid. 77. Virginia v. Black, 538 U.S. at p. 359, 123 S. Ct. 1536 (2003). 78. U.S. v. Fuller, 387 F.3d 643 (7th Cir. 2004). 79. Ibid. 80. 116 Am.Jur. Trials 293, § 15. 81. Restatement (Second) of Torts, § 316, at pp. 123–124. 82. Lott v. Strang, 245 Ill. 154, 727 N.E.2d 407 (4th Dist. 2000).
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Tort Liability
83. Appelhaus v. McFall, 259 Ill. Dec. 124, 757 N.E.2d 987 (2nd Dist. 2001). 84. Duncan v. Rzonca, 88 Ill. Dec. 288, 478 N.E.2d 603 (2nd Dist. 1985). 85. Bland v. Candioto, 2006 WL 2735501 (N.D. Ill. 2006). 86. Restatement (Second) of Torts, op. cit. 87. Louisiana Civil Code Article 2318. 88. Ibid. 89. Turner v. Bucher, 308 So.2d 270 (La. 1975). 90. Smith v. Half Hollow Hills Central School District, 349 F. Supp. 2d 521 (E.D. N.Y. 2004). 91. Aratari v. Leetonia Exempt Village School District, 2007 WL 969402 (Ohio Ct. App. 2007). 92. Murphy v. Bajjani, 282 Ga. 197, 647 S.E.2d 54 (Ga. 2007). 93. Larrison v. John Marshall High School, 2007 WL 152174 (Minn. Ct. App. 2007). 94. Jasperson v. Anoka-Hennepin Ind. School District, No. 11, 2007 WL 3153456 (Minn. Ct. App. 2007). 95. Mohammed v. School District of Philadelphia, 196 Fed. Appx. 79 (3rd Cir. 2006). 96. See U.S. Department of Education, Office for Civil Rights & National Association of Attorneys General, “Protecting Students from Harassment and Hate Crime (Jam 1999). See also Anne M. Payne, “Establishing Liability of a Public School District for Injuries or Damage to a Student Resulting from Bullying or Other Nonsexual Harassment by Another Student,” 105 Am.Jur. Proof of Facts 3d 93, pp. 24–25 (August 2009). 97. Walsh v. West Coast Coal Mines, 31 Wash. 2d 396, 197 P.2d 233 (1948). 98. Restatement (Second) of Torts, § 463. 99. Rixmann v. Somerset Public Schools, 83 Wis. 2d 571, 266 N.W.2d 326 (1978). See also Lemelle v. State ex rel. Board of Secondary and Elementary Education, 435 So.2d 1162 (La. Ct. App. 1983). 100. Cormier v. Sinegal, 180 So.2d 567 (La. Ct. App. 1965). 101. Basmajian v. Board of Education, 211 A.D. 347, 207 N.Y.S. 298 (N.Y. App. Div. 1925). 102. Wilhelm v. Board of Education of City of New York, 16 A.D.2d 707, 227 N.Y.S.2d 791 (N.Y. App. Div. 1962). 103. Prosser, op. cit., p. 303. See Passantino v. Board of Education of City of New York, 41 N.Y.2d 1022, 395 N.Y.S.2d 628, 363 N.E.2d 1373 (N.Y. 1977). 104. Stevens v. Central School District No. 1, 25 A.D. 2d 871, 270 N.Y.S.2d 23 (N.Y. App. Div. 1966). 105. Maltz v. Board of Education of New York City, 32 Misc. 2d 492, 114 N.Y.S.2d 856 (1952). 106. Benedetto v. Travelers Insurance Co., 172 So.2d 354 (La. Ct. App. 1965). 107. Brisson v. Minneapolis Baseball and Athletic Association, 185 Minn. 507, 240 N.W. 903 (1932). 108. Scanlon v. Wedger, 156 Mass. 462, 31 N.E. 642 (1891). 109. Dusckiewicz v. Carter, 115 Vt. 122, 52 A.2d 788 (1947). 110. Cadieux v. Board of Education of the City School District for the City of Schenectady, 25 A.D.2d 579, 266 N.Y.S.2d 895 (N.Y. App. Div. 1966). 111. Barr v. Bernhard, 562 S.W.2d 844 (Tex. 1978). 112. See Black’s Law Dictionary, Rev. 4th ed. (St. Paul, Minn.: West, 1968).
113. Richard Fossey, “School District’s Negligence Release Forms: Are They Worth the Paper They’re Printed On?” 177 Ed. Law Rptr. 755 (2003). 114. Wagenblast v. Odessa School District, 758 P.2d 968 (Wash. 1988). 115. Doyle v. Bowdoin College, 403 A.2d 1206 (Me. 1979). 116. Childress v. Madison County, 777 S.W.2d 1 (Tenn. Ct. App. 1989). 117. Adams v. Roark, 686 S.W.2d 73 (Tenn. 1985). 118. Khowry v. Saik, 203 Miss. 155, 33 So.2d 616 (Miss. 1948). 119. Hole v. San Diego Unified School District, 224 Cal. App. 3d 1559, 274 Cal. Rptr. 647 (1990); Arias v. Las Virgenes Unified School District, 64 Cal. App. 4th 1112, 75 Cal. Rptr. 2d 801 (1998). 120. Sharon v. City of Newton, 769 N.E.2d 738 (Mass. 2002). 121. Knodrad v. Bismarck Park District, 655 N.W.2d 411 (N.D. 2003). 122. Fossey, op. cit. 123. Hunter v. Board of Education of Montgomery County, 292 Md. 481, 439 A.2d 582 (1982). 124. Ibid. 125. Peter W. v. San Francisco Unified School District, 60 Cal. App. 3d 814, 131 Cal. Rptr. 854 (1976). 126. Donohue v. Copiague Union Free School District, 47 N.Y.2d 440, 418 N.Y.S.2d 375, 391 N.E.2d 1352 (1979). 127. Hunter v. Board of Education of Montgomery County, 439 A.2d at 585. 128. See D. S. W. v. Fairbanks North Star Borough School District, 628 P.2d 554 (Alaska 1981); Smith v. Alameda County Social Services Agency, 90 Cal. App. 3d 929, 153 Cal. Rptr. 712 (Cal. Ct. App. 1979); Hoffman v. Board of Education of City of New York, 49 N.Y.2d 121, 424 N.Y.S.2d 376, 400 N.E.2d 317 (N.Y. 1979); Aubrey v. School District of Philadelphia, 63 Pa. Commw. 330, 437 A.2d 1306 (1981). 129. Donohue v. Copiague Union Free School District, 418 N.Y.S.2d 375, 391 N.E.2d 1352 (1979). 130. Lawrence v. Lorain County Community College, 127 Ohio App. 3d 546, 713 N.E.2d 478 (1998). 131. Livoisi v. Hicksville Union-Free School District, 2nd Dept., N.Y. 263 A.D.2d 447, 693 N.Y.S.2d 617 (1999).
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Quoted Box Citations
Lawrence M. Friedman, A History of American Law, 3rd ed. (New York: A Touchstone Book, Simon & Schuster, 2005), p. 222. Teacher ’s Absence from Classroom. Cirillo v. City of Milwaukee, 150 N.W.2d 460; See: 57 Am.Jur.2d Municipal, County and School—Tort Liability § 571. Proximate or Legal Cause. Johnson v. School District of Millard, 253 Neb. 634, 573 N.W.2d 116 (1998). Cyberbullying. D.C., a Minor v. R.R., a Minor, 182 Cal. App. 4th 1190, 106 Cal. Rptr. 3d 399 (2010).
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CHAPTER 13
Defamation and Student Records Many things that are defamatory may be said with impunity through the medium of speech. Not so, however, when speech is caught upon the wing and transmuted into print. What gives the sting to the writing is its permanence of form. The spoken word dissolves, but the written one abides, and “perpetuates the scandal.” —Benjamin N. Cardozo
CHAPTER OUTLINE ■
INTRODUCTION
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STUDENT RECORDS
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DEFAMATION DEFINED
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FAMILY EDUCATIONAL RIGHTS AND PRIVACY ACT
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DEFAMATION IN PUBLIC SCHOOLS
Private Damages
Defamation Per Se and Per Quod
Parental Rights
Privilege
Posting of Grades
Malice
Student-Graded Work
Good Faith
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SUMMATION OF CASE LAW
Truth
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RESEARCH AIDS
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PUBLIC OFFICIALS AND FIGURES
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Introduction
Although defamation is considered to be a tort, it descends from a different historical lineage than the common-law tort of negligence. The AngloSaxon law of defamation has traces of historical development in Germanic and Roman law.1 In early Anglo-Saxon law, insulting words raised by one person against another were punished by
penalties as severe as removing the offender’s tongue2 or as light as requiring the offender to hold his nose and call himself a liar.3 The word defamation is a technical term derived from the Latin diffamatus, signifying a person of sufficiently notorious and evil reputation that the church was justified in accusing and placing him on trial. If the defendant was acquitted and his ill
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fame was determined to be unfounded, then his accusers could be tried for the calumny of committing a crime of false and hateful accusation.4 In 1275, defamation became a criminal offense in the first of a long line of statutes that forbade insult of the king or his court.5 This statute, known as scandalum magnatum, the slander of magnates, punished those who published false news producing discord between the king and his subjects. Because the nature of this offense was criminal and offenses were generally considered sedition, application did not extend beyond offenses against the crown.6 Gradually, though, the common-law courts developed defamation as a civil wrong, reasoning that “libelling calumniation is an offense against the law of God.”7 The law of defamation was greatly abused by the Star Chamber and upon the abolition of that court in 1641, the law lay dormant for some years. In the latter part of the seventeenth century, the distinction between spoken and written defamation was established and became a permanent division in the law of defamation. The law of libel, written word, was developed as a supplement to the law of slander, spoken word.
Elements of Defamation Defamatory Words
Publication (oral or written)
Falsity
It was reasoned that spoken words imputing ill fame could be thoughtlessly conveyed in the heat of discussion and could, in many cases, be ignored; libel, however, because it was written, and presumably more carefully considered, suggested the presence of malice and was actionable for special damages.8 The elements of common-law defamation were well established by the eighteenth century, and the American courts generally followed the rationale and precedents of the early English courts. Today, the most important changes have occurred in state statutes, expanding or redefining certain elements of the law.
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Defamation Defined
Defamation is the imputation of immorality, dishonesty, or dishonorable conduct to another by spoken or written word. Criticism is distinct from defamation in that it is addressed to public matters and does not follow a person into private or personal affairs. A true critic never resorts to personal denigration or ridicule but confines his or her commentary to the merits of the particular issue under consideration. A communication is defamatory if it “tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.”9 Keeton, Dobbs, Keeton, and Owen define defamation as that “which tends to injure ‘reputation’ in the popular sense; to diminish the esteem, respect, goodwill or confidence in which the plaintiff is held, or to excite adverse, derogatory or unpleasant feelings or opinions against him.”10 The Restatement (Second) of Torts distinguishes libel and slander as follows: (1) Libel consists of the publication of defamatory matter by written or printed words, by its embodiment in physical form or by any other
Defamation
Malice (actual or implied)
Injury
Libel (written)
Slander (oral)
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Defamation in Public Schools form of communication that has the potentially harmful qualities characteristic of written or printed words. (2) Slander consists of the publication of defamatory matter by spoken words, transitory gestures or by any form of communication other than those stated in Subsection (1). (3) The area of dissemination, the deliberate and premeditated character of its publication and the persistence of the defamation are factors to be considered in determining whether a publication is a libel rather than a slander.11
On their faces, libel as written communication and slander as oral communication are easily distinguishable. However, other forms of communication, such as acts or gestures, motion pictures, and radio or television, complicate the dichotomy. Some courts simply maintain that defamation designed for visual perception is libel and defamation designed for all other forms of communication is slander.12 The courts are in agreement that “the broadcasting of defamatory matter by means of radio or television is libel.”13 Courts generally accept the following definitions: Libel is a malicious publication, expressed either in printing or writing or by signs and pictures, and slander is the speaking of base and false words, possibly emphasized by gestures, both of which tend to injure a party’s situation in society.14
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Defamation in Public Schools
Teachers and school administrators are particularly susceptible to actions in defamation because of the sensitivity of the personal information that they come into contact with each day. Teachers, as a matter of routine, process and communicate information that relates to pupil performance, the misuse of which could potentially harm the student’s reputation and stigmatize his or her future. The problem of the administrator is even more complex in that he or she communicates information concerning teacher performance to other administrators or to school board members. Public interest in education, though, makes it essential that proper pupil and teacher evaluations be made and that public school officials and employees not be subjected to constant fear of personal liability.
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DEFAMATION PER SE AND PER QUOD Words that in and of themselves, without extrinsic proof, injure a person’s reputation are actionable per se. With defamation per se, the plaintiff’s cause of action is complete when he or she proves that the words have been articulated and conveyed. The words actionable per se mean that the publication is of such a nature as to make the publisher liable for defamation, regardless of whether special harm15 is attributable to the publication, unless the information is true or the defamer is privileged. If such fault exists, the fact that the false and defamatory matter was published is actionable per se. A complaint by plaintiff that is actionable per se enables the aggrieved party to recover for actual harm. To support the complaint, the plaintiff is not required to prove actual injury or out-of-pocket monetary loss, but rather must merely show that the words were of such kind as to impair his or her reputation or standing in the community or to cause personal anguish, suffering, or humiliation. The plaintiff need not prove that he or she suffered special harm or direct loss. A Maine court has helped define defamation per se: We recognize that a good deal of confusion exists in the use of such terms as “libelous or slanderous per se” and “actionable per se.” Courts and commentators often use these terms interchangeably, sometimes referring to technical common law pleading requirements that obviate the need to allege special damage and at other times referring to the nature of evidence at trial that obviates the need to prove special damages. . . . Specifically, the term slander per se refers to words that on their face without further proof or explanation injure the plaintiff in his business or occupation, i.e., are defamatory per se.16
Under American common law today, an action for defamation per se will lie without proof of special harm (damage) where (1) words impute (a) a criminal offense punishable by imprisonment or (b) that plaintiff is guilty of a crime involving moral turpitude; (2) words impute to the plaintiff an existing venereal or other loathsome or communicable disease; (3) words impute to the plaintiff conduct, characteristics, or a condition incompatible with proper conduct of his or her lawful business, trade, or profession,
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or a public or private offense; and (4) words impute unchastity to a woman. If the plaintiff is unable to sustain the complaint under one of these categories, he or she must resort to proving special harm or actual damages by the communication 17 of defamation per quod. Defamation per quod requires that the plaintiff’s complaint show actual damage. The plaintiff must show that publication of the defamation was the legal cause of special harm. Special harm requires proof of actual economic or pecuniary loss. The distinction between defamation per se and per quod may rest on whether a crime is imputed. For example, the law holds that it is defamation per quod and special damages must be proven if the words imputed to an offender appear to harm the teacher’s reputation but do not relate to conduct of a crime, moral turpitude, or unchastity or do not damage the teacher in his or her profession. To say that a male teacher seduced a female student would, of course, be defamation per se. On the other hand, where a defendant had accused a headmaster of committing adultery with the school custodian’s wife, the court found that the words had not been uttered in the context of the school or in reference to the plaintiff as schoolmaster; the charge could be defamation per quod, requiring a showing of special and actual damage, a burden that the plaintiff could not sustain. Since a teacher’s reputation among students and the community is so vital to the performance of his or her professional responsibilities, it is easy to see how, in the majority of cases, false imputations against a teacher could fall into the category of defamation per se.18
PRIVILEGE Because of this important public interest, the courts have generally recognized that statements regarding school matters are qualifiedly privileged if made by persons having a common duty or interest in the information and acting in good faith.19 “In the absence of malice, a school official is not liable to a teacher for performing the duties of his office.”20 A teacher likewise has a qualified or conditional privilege when acting in good faith in school matters, but the qualified privilege is not unlimited, and no privilege attaches to a teacher’s entry in a school register
to the effect that a certain pupil “was ruined by tobacco and whiskey.”21 Absolute privileges are afforded only those individuals who perform vital governmental functions that the courts have defined as judicial proceedings, legislative proceedings, and certain executive proceedings. With the judiciary, absolute privilege extends only to the particular statements that are relevant or pertinent to the case at bar.22 In the legislature, complete privilege extends to statements made in the course of debate, voting, or reports on work performed in committees. 23 Public officers holding executive positions also have absolute immunity for communications made in connection with the performance of their official duties. Privileges
Absolute Privilege
Qualified or Conditional Privilege
An absolute privilege is not dependent on factual circumstances regarding truth or malice. Absolute means complete protection. On the other hand, a conditional or qualified privilege presumes truth and no malice, but can be overcome, and is actionable where evidence is to the contrary. For example, a statement made by a school board member at a school board meeting referring to the fact that marijuana cigarettes had been found in a student’s car was privileged, and the board member could not be found liable for defamation. The court reasoned that the board member held a conditional privilege that could not be overcome absent a showing of malice. The court said: Privileged communications are divided into two classes, namely, those which are absolutely privileged, and those which are qualifiedly or conditionally privileged. In cases where absolute privilege obtains there is no liability. Depending upon the circumstances of the case, there may or may not be liability with respect to qualifiedly or conditionally privileged communications. The distinction between the two classes is said to be that the protection of absolute privileged communications
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Defamation in Public Schools is not at all dependent upon their bona fides, while qualifiedly or conditionally privileged communications are merely freed from the legal imputation of malice, and become actionable only by virtue of the existence of express malice.24
The state superintendent of public instruction is most commonly clothed with an absolute privilege. A case in point is where a Nebraska court applied the absolute privilege rule to the state superintendent’s statement to the county supervisor accusing the plaintiff of playing poker and being under the influence of liquor. The absolute privilege permitted the superintendent to prevail.25 If a statement is made by the defendant in response to an inquiry by the plaintiff, then a conditional privilege may be elevated to the status of an absolute privilege. The Missouri Supreme Court invoked this rule when a superintendent responded to a question by a teacher in a hearing before the school board: When plaintiff asked the defendant at the board meeting why she was not going to be reemployed the following school year, the superintendent should be at liberty to say to her, “Miss Williams, you have disobeyed school rules and regulations, you are insubordinate and are insufficient and inadequate with your students.” In that situation [the superintendent] is absolutely protected in his explanation to plaintiff.26
The fact that a superintendent has a conditional privilege does not mean he is protected to make negative and reckless commentary about a teacher. The superintendent, in a telephone conversation, had stated that the former teacher was “more concerned with living up to the terms of his contract rather than going the extra mile” and that the teacher “did not turn students on.” The evidence indicated, to the contrary, that the teacher had been a relatively good teacher, receiving affirmative evaluations and a complimentary letter from the superintendent himself. In light of such facts, the jury’s conclusion that the superintendent’s comments were made with “falsity” and “reckless disregard of their truth or falsity” was affirmed by the appellate court, overcoming his conditional privilege.27 Although courts generally hold that school superintendents have a conditional or qualified
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privilege, some courts have maintained that public policy requires that superintendents be given an absolute privilege in evaluating teacher activities before a school board. Similarly, school board members have been held to have absolute privilege in evaluating a school superintendent’s performance.28 Whether allegedly defamatory statements are made within the scope of school interests is highly relevant to the protection of privilege. For example, in 2003, an Illinois court held that a school principal “is absolutely immune from liability for defamation if the statements were made while acting within the scope of official duties.” 29 Comments made about the plaintiff within the scope of a school meeting, where the agenda includes a related subject, are immune from liability. 30 As such, the privilege cannot be overcome with a showing of malice, or where there is evidence of improper motivation or knowledge of falsity. 31 Immunity, therefore, is highly dependent on whether the statements are made within the scope of the job. Teachers and other school instructional personnel are also covered by a conditional privilege when acting in the capacity of their employment and in the interest of the school. In a case where a teacher and assistant principal were responsible for investigating suspected drug involvement of students and for counseling students and their parents, their communications to parents of a high school student concerning the sale of drugs in plaintiffs’ place of business was qualifiedly privileged. The comments by the teacher and assistant principal were made in good faith, on an occasion that properly served their duty, and under circumstances that were fairly warranted. This court defined “qualified privilege” in this way: “A communication, although it contains criminating matter, is privileged when made in good faith upon any subject in which the party communicating has an interest, or in reference to which he has a right or duty, if made to a person having a corresponding interest, right, or duty, and made upon an occasion to properly serve such right, interest, or duty, and in a manner and under circumstances fairly warranted by the occasion and the duty, right, or interest, and not so made as to unnecessarily or unduly injure another, or to show express malice.”32
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Parents’ Qualified Privilege. Parents and patrons of a school may have a qualified privilege in disclosing information at school board meetings if the disclosures are relevant to the school’s and the public’s interests. School patrons, who presented school trustees with a letter charging that a teacher failed to keep proper order and discipline and allowed older boys to take improper privileges with female students, were held as a matter of law to have a qualified privilege. According to the court, the central issue is whether the complaint was presented with malicious intent. According to the court, the jury should be instructed to find whether malice was present and had actually been intended to injure the teacher, not merely to correct the school situation.33 The same conclusion was reached in another jurisdiction when the court was called upon to rule on the qualified privilege of residents and patrons of a school district. The court held them to be protected by a qualified privilege when they presented a petition to the school board stating, “[W]e do not think she [plaintiff teacher] is a competent teacher and has but little control over the school.” The court said that if the occasion, the motive, and the cause be proper, the publication or communication does not imply malice. To overcome a qualified privilege, malice must be proved by the person claiming to have been defamed, and the mere falsity of the alleged defamatory matter is not sufficient.34 The general precedent to follow, therefore, is that officials, teachers, and others dealing in the public interest context have at least a qualified privilege. This conditional immunity can even extend to parents presenting a petition before a school board to the effect that a teacher is “incompetent.”35
MALICE A qualified privilege does not protect against malice. Malice in a legal sense characterizes all acts that are done with evil disposition and unlawful motive with intent to injure or cause harm to another. The law distinguishes two general forms of malice. The first is called malice in law or implied malice and is defamation per se. Here there is no excuse for the conveyance of hurtful information. Unsolicited, derogatory commentary, oral or written, falls into this
category. Actual malice is the second form and is dependent on the defendant’s motive for making the statement. A qualified or conditional privilege does not protect a defendant who has acted with malice. Malice is ill will or absence of good faith. It has a planned purpose and motivation to cause injury to the reputation of the plaintiff.36
QUALIFIED PRIVILEGE The effect of the qualified privilege is to justify defamatory statements when they are made without actual malice. A qualified privilege negates any presumption of implied malice flowing from a defamatory statement and places the burden of proof on the issue upon the plaintiff. —Margaret E. O’Neill
GOOD FAITH A qualified privilege protects the teacher or school official when statements are made in good faith and without malice. One court explained such privileges in this way: If a communication comes within the class denominated absolutely privileged or qualifiedly privileged, no recovery can be had. Privileged communications are divided and defined as follows: (1) that the communication was made by the defendant in good faith, without malice, not voluntarily but in answer to an inquiry, and in the reasonable protection of his own interest or performance of a duty to society; (2) that the defendant must honestly believe the communication to be true; (3) there must have been reasonable or probable grounds known to him for the suspicion; (4) that the communication, if made in answer to an inquiry, must not go further than to truly state the facts upon which the suspicion was founded, and to satisfy the inquirer that there were reasons for the suspicion.37
Under this definition, it is clear that the communication must be made in good faith, without malice, upon reasonable grounds, in answer to inquiry, and, importantly, it must be made with regard to assisting or protecting the interests of either of the parties involved or in performing a duty to society. The school official’s or employee’s communication is qualifiedly privileged if it is
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Defamation in Public Schools
prompted by a duty owed to either the public or a third party and is made in good faith and without malice.
TRUTH Falsity is the basic ingredient in the tort of defamation. Conveyance of truth is not defamation. The Restatement (Second) of Torts states succinctly that [t]o create liability for defamation there must be publication of matter that is both defamatory and false. There can be no recovery in defamation for a statement of fact that is true, although the statement is made for no good purpose and is inspired by ill will toward the person about whom it is published and is made solely for the purpose of harming him.38
Therefore, truth of a defamatory statement affords a complete defense to defamation regardless of whether ill will or malice is present. Truth as an absolute defense against defamation emanated from the famous Peter Zenger case in 1735. Prior to this case, defamation of a public official was largely indefensible. One will recall that Zenger was indicted for printing an edition of the New York Weekly Journal that called the governor of New York a “rogue” and accused him of destroying the liberties of the citizenry. Zenger’s lawyer argued that the charges were true and a jury agreed, acquitting Zenger. Although the Zenger affair was so imbued with politics that its importance was mitigated, the case nevertheless established that truth was a legitimate defense to libel and that truth was a matter of fact to be decided by a jury, not a matter of law to be decided by a judge. After the Zenger case, it was popularly maintained that “[t]ruth ought to govern the whole affair of libels.”39 Under common-law tort where the plaintiff is a private person, a defamatory statement is presumed to be false; the defendant must prove that the statement was true. The burden of proof is on the defendant, but, if the plaintiff is a “public official” or “public figure,” the burden of proof shifts. The “public person” must present clear and convincing proof to the court that the defendant published false, defamatory information with knowledge of its falsity or with reckless disregard for the truth. Thus, if a teacher has been the brunt of a defamatory statement, then the burden of proving truth is on the defendant because a teacher is
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generally considered to be a private person. If, for example, a parent or student published defamatory information about a teacher, the burden would be on the parent or student to prove the statement is true. One could probably conceive of a situation in which a teacher could be a public figure if he or she had won fame for some reason, but this is generally not the case. So long as the teacher does not acquire the esteemed status of a public personage, then the burden of proving truth would be on the defendant if a publication harmed the teacher.
An Action in Defamation by a Teacher Against a School Principal Cannot Prevail from a Statement of Opinion by the Principal Based on His Subjective View That Does Not State or Imply Falsity or Malice
Tatum v. Orleans Parish School Board Court of Appeals of Louisiana, Fourth Circuit, 2008. 982 So.2d 923.
DAVID S. GORBATY, Judge. In this appeal, plaintiff contends that the trial court erred in granting defendant’s motion for summary judgment. For the reasons set forth below, we affirm. Plaintiff was employed as a temporary teacher at Walter L. Cohen Senior High School. At the end of the school year, the principal, Leroy Gray, sent a memorandum to Cossette West, an administrator in the Orleans Parish School Board’s human resources department, concerning plaintiff ’s assignment. In its entirety, the letter stated: Mr. Vernon Tatum was assigned to Cohen School during the 1988–89 and 1989–90 school sessions. He served as a school site substitute teacher in 1988–89 and a science teacher in 1989–90. It is recommended that Mr. Tatum not be returned to Cohen School. Thank you for your consideration.
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Plaintiff filed the instant lawsuit entitled “Defamation of Character and/or Tort Against the Orleans Parish School Board.” Thereafter, the Orleans Parish School Board filed a Motion for Summary Judgment, seeking dismissal on the grounds that no defamation occurred. The trial court granted the motion as it pertained to defamation, dismissing that claim with prejudice, “reserving unto plaintiff any other causes of action that may have been asserted in his Petition, as amended.” Plaintiff subsequently filed this appeal. . . . [P]laintiff argues that the trial court erred in dismissing his defamation claim. . . . The following elements must be proven to prevail on a claim of defamation: (1) defamatory words; (2) publication; (3) falsity; (4) malice, actual or implied; and (5) resulting injury. Louisiana jurisprudence is clear that a cause of action fails if the plaintiff fails to prove even one of these elements. Defamatory words have been defined as words that “tend to harm the reputation of another so as to lower him in the estimation of the community or to deter third persons from associating with him.” Generally, a communication is defamatory if it tends to harm the reputation of another so as to lower the person in the estimation of the community, to deter others from associating or dealing with the person, or otherwise exposes a person to contempt or ridicule. An action in defamation does not lie from a statement of opinion based on the speaker or writer ’s subjective view, and that does not state or imply underlying facts. The test for determination of whether a statement is fact or opinion is whether “ordinary persons hearing or reading the matter complained of would be likely to understand it as an expression of the speaker’s or writer’s opinion, or as a statement of existing fact.” In sum, an expression of opinion is actionable only if “it implies the existence of underlying facts ascertainable by a reasonable person with some degree of certainty, and the implied factual assertions are false, defamatory, made with actual malice, and concern another.” In McGowen v. Prentice, 341 So.2d 55 (La. App. 3 Cir. 1977), the court held that a school principal’s recommendation not to rehire the plaintiff teacher was not defamatory. In that case, C. A.
Prentice, Jr., the principal of Jeanerette Senior High School, recommended in a letter that Joann McGowen, a non-tenured teacher, not be rehired. One of the reasons Prentice later said that she and another teacher should not be rehired was because they were “both nuts.” The letter Prentice sent to George Crowson, the assistant superintendent of the Iberia Parish school system read in its entirety: This is in response to your letter of April 23, 1974 regarding JoAnn P. McGowen. In view of the circumstances and facts relating to this teacher, I reluctantly but firmly recommend that, in the interest of Jeanerette High School, she not be rehired for the 1974–1975 school year.
In reviewing McGowen’s claim, the Third Circuit found that the letter was not defamatory. The court reasoned that “The major thrust of plaintiff’s evidence is that Prentice was wrong in recommending against her re-hiring, but that question is for the school board and the school officials, not for the courts. Therefore, we conclude, as did the trial court, that the defendant did not defame the plaintiff in recommending that she not be rehired.” We likewise conclude that the statement made by Gray was not defamatory. In the instant case, the alleged defamatory statement consists of a memo concerning a personnel matter: the assignment of a teacher for the next school year. It was merely a recommendation that plaintiff not return to that school, without giving any reason. Nothing Gray said in the memorandum could be construed as lowering the plaintiff in the eyes of others. There are many reasons why such a recommendation might have been made, other than the personal vendetta alleged by plaintiff. Furthermore, plaintiff has not alleged that the statement “It is recommended that Mr. Tatum not be returned to Cohen School” is false. No issues of material fact remain that should preclude the granting of the motion for summary judgment. Accordingly, for the foregoing reasons, the judgment of the trial court is affirmed.
CASE NOTE In a case where an experienced school principal in Los Angeles with an excellent reputation and long experience was reassigned to a “desk job”
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Defamation in Public Schools
after a series of violent disturbances by students at his school, the school superintendent was quoted in the media as stating “stronger leadership was needed at the school and that the principal had retirement plans that did not fit with the district’s needs.” The principal sued the superintendent and school district for defamation and invasion of privacy. The appellate court held for the superintendent noting that he “had an official duty to communicate with the press about matters of public concern” regarding the violent incidents at the school; the statements were privileged, and, further, the communications were protected opinions. Morrow v. Los Angeles Unified School District, 149 Cal. App. 4th 1424, 57 Cal. Rptr. 3d 885 (Cal. Ct. App. 2007).
Negative Recommendation Is Protected by a Conditional Privilege
Hett v. Ploetz Supreme Court of Wisconsin, 1963. 20 Wis. 2d 55, 121 N.W.2d 270.
GORDON, Justice. Hett brought this action to recover damages for injury to his professional reputation from an allegedly libelous publication by Ploetz. . . . From 1956 to 1959 Hett had been employed as a speech therapist in the school system of the city of Cudahy, Wisconsin. His schedule required that he travel to six different schools and teach those pupils who were in need of his specialty. . . . Based upon their analysis of Hett’s qualifications, the principals of the six schools in which Hett taught reported to Ploetz that they did not recommend renewal of Hett’s contract for the 1959–1960 school year. While the principals did not recommend Hett’s retention for that year, Ploetz decided that because he had been the superintendent for only six months it would be unfair to Hett to recommend his dismissal.
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Ploetz informed Hett that his contract was not going to be renewed and told him that it would be in his best interest to resign so that a dismissal would not appear on his record. Hett resigned. . . . On November 9, 1959, Hett applied for a position as a speech therapist at the Southern Wisconsin Colony and Training School, Union Grove, Wisconsin. In his application he stated that the reason he left the Cudahy school system was that there was a lack of advancement opportunities. He listed Ploetz as a reference and gave permission to the Southern Colony officials to communicate with Ploetz. . . . The plaintiff contends that he was libeled by the defendant’s response to an inquiry from a prospective employer of the plaintiff. Hett had not only given Ploetz’s name as a reference but had also given express permission to the prospective employer to communicate with Ploetz. We must resolve two questions. The first is whether any privilege insulates the defendant’s letter; the second is whether an issue of malice exists for trial. It is clear that Ploetz’s allegedly defamatory letter was entitled to a conditional privilege. Ploetz was privileged to give a critical appraisal concerning his former employee so long as such appraisal was made for the valid purpose of enabling a prospective employer to evaluate the employee’s qualifications. The privilege is said to be “conditional” because of the requirements that the declaration be reasonably calculated to accomplish the privileged purpose and that it be made without malice. . . . Lord Blackburn has said: Where a person is so situated that it becomes right in the interests of society that he should tell to a third person facts, then, if he bona fide and without malice does tell them, it is a privileged communication.
The public school official who expresses an opinion as to the qualifications of a person who has submitted an application for employment as a school teacher should enjoy the benefits of a conditional privilege. As previously noted, the employee had given Ploetz’s name as a reference and had authorized that an inquiry be made of him. The letter contains certain factual matters as well as
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expressions of opinion. The factual portions are not contradicted by any pleading before this court. Thus, the following statement contained in the letter written by Ploetz stands unchallenged: Last year, our six Principals and Elementary Coordinator unanimously recommended that he be no longer retained in our system as a speech correctionist. He, therefore, was not offered a contract to return this year.
The expression of opinion of which Hett complains is contained in the following portion of the defendant’s letter: We feel that Mr. Hett is not getting the results that we expected in this very important field. I, personally, feel that Mr. Hett does not belong in the teaching field. He has a rather odd personality, and it is rather difficult for him to gain the confidence of his fellow workers and the boys and girls with whom he works.
In our opinion, the record before us establishes that this expression of opinion is not founded in malice. The background of the relationship of Hett and Ploetz satisfactorily demonstrates that the latter’s negative recommendation was grounded on the record and not upon malice. Ploetz was not an intermeddler; he had a proper interest in connection with the letter he wrote. . . . The plaintiff has failed to recite any evidentiary facts which are sufficient to raise questions for trial. His allegations that the letter contains defamatory material are mere conclusions. No presumption of malice has arisen; no showing of express malice has been presented. In Otten v. Schutt (1962), 15 Wis. 2d 497, 503, 113 N.W.2d 152, 155, this court stated: The law relating to defamatory communications is based on public policy. The law will impute malice where a defamatory publication is made without sufficient cause or excuse, or where necessary to protect the interests of society and the security of character and reputation; but where the welfare of society is better promoted by a freedom of expression, malice will not be imputed. . . .
Public policy requires that malice not be imputed in cases such as this, for otherwise one who enjoys a conditional privilege might be reluctant to give a sincere, yet critical, response to a request for an appraisal of a prospective employee’s qualifications.
. . . A thorough examination of the entire record compels our conclusion that the respondent is entitled to the benefit of a conditional privilege. Judgment affirmed.
CASE NOTES 1. Per Se and Per Quod. To recover in an action for defamation, the plaintiff must establish the four basic elements of defamation: (1) a communication with a defamatory imputation, (2) malice, (3) publication, and (4) damages. Whether a communication is defamatory is a matter of law. Some words are not actionable in themselves yet may become actionable as “defamatory imputation” when they make some allusion to some extrinsic fact or are understood to be used in a different sense from their normal meaning. Such words are deemed to be actionable per quod, acquiring a defamatory meaning when placed in context or connected with extrinsic facts or circumstances. If words are directly defamatory in nature without resort to extrinsic facts or circumstances, then they are said to be actionable per se. McQueen v. Fayette County School Corp., 711 N.E.2d 62 (Ind. Ct. App. 1999). 2. Libel cannot be proved where the published material was clearly understood as “parody, satire, humor or fantasy.” In a case where a female teacher by the name of Salek was offended by a photograph in the school yearbook of a male teacher, holding his hand to his head, captioned “Not tonight Ms. Salek,” Salek sued the school principal, claiming libel. Plaintiff’s expert witness testified that the average reader of the yearbook would conclude that there was an ongoing sexual relationship between the plaintiff and the male teacher. The court denied relief, saying that the determination of “whether the photograph was defamatory must be made after consideration of the context in which it appeared in the yearbook.” Here the court concluded the intent was obvious jest. Salek v. Passaic Collegiate School, 255 N.J. Super. 355, 605 A.2d 276 (1992). 3. A New York court held that a school social worker has an absolute privilege for the social worker’s report to the child protection
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Defamation in Public Schools
agency. The same court ruled that a qualified privilege existed covering the information conveyed between the social worker and the school district committee to establish appropriate individualized education programs for disabled children. Dunajewski v. Bellmore-Merrick Central High School District, 138 A.D. 2d 557, 526 N.Y.S.2d 139 (N.Y. App. Div. 1988). 4. The Oklahoma Supreme Court found that defamatory statements about the school librarian made by the president and dean of the medical school at a session of the board of regents were absolutely privileged. See Hughes v. Bizzell, 189 Okla. 472, 117 P.2d 763 (1941). 5. In defining “good faith,” the Florida Supreme Court quoted an older Florida case, saying: Good faith, a right, duty, or interest in a proper subject, a proper occasion, and a proper communication to those having a like right, duty, or interest, are all essential to constitute words spoken that are actionable per se, a privileged communication, so as to make the proof by the Plaintiff of express malice essential to liability. In determining whether or not a communication is privileged, the nature of the subject, the right, duty, or interest of the parties in such subject, the time, place, and circumstances of the occasion, and the manner, character, and extent of the communication should all be considered. When all these facts and circumstances are conceded, a court may decide whether a communication is a privileged one, so as to require the Plaintiff to prove express malice. . . . Abraham v. Baldwin, 52 Fla. 151, 42 So. 591 (1906).
Qualified Privilege Protects Parents Who Convey Information About Teachers
Desselle v. Guillory Court of Appeals of Louisiana, 1981. 407 So.2d 79.
SWIFT, Judge. . . . [In this consolidated case, teachers Kenneth Maillet, Maxwell Desselle, and Garland Desselle, plaintiff-appellants, appeal a defamation decision regarding a high school student’s allegations of teachers’ molesting students.] In July of 1979,
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Mrs. Jane Guillory was a counselor at a summer church camp for girls. She participated in a conversation with several of the girls who told her about incidents which they had heard or witnessed concerning certain teachers, including the plaintiffs, at Bordelonville High School. When Mrs. Guillory discussed with one of her church deacons the information, which included allegations that the teachers were fondling students, he advised her to inform the school principal. The following month Mrs. Guillory took up the matter with Mr. Jimmy Bordelon, the principal of the high school, who assured her that he would observe the teachers’ behavior. On March 6, 1980, Mrs. Guillory visited with Mr. Bordelon to discuss a poor grade on a test given to her daughter by Maxwell Desselle. Mr. Desselle was called in to talk to Mrs. Guillory about it. They had a heated discussion concerning the test and the defendant also made a comment to the effect that she had something else on Desselle. After he returned to his classroom Mrs. Guillory told the principal that the teachers had continued to molest the children. She testified that prior to this visit Abigail Farbes had informed her that it was still going on. The principal told Mrs. Guillory he did not believe such rumors and had not observed any such behavior. Mrs. Guillory then informed the principal she would take her information to the superintendent. That same afternoon Mrs. Guillory had a conversation with Mrs. Jeannette Huffmaster. When Mrs. Guillory informed her of what she had heard, Mrs. Huffmaster told her that she had seen Maxwell Desselle pat a girl on the buttocks in the presence of Mr. Bordelon. On March 7, 1980, Mr. Bordelon met with the plaintiffs and informed them of what Mrs. Guillory had said. The four then went to the Guillory home to discuss the matter. At this meeting an argument ensued and at least one of the plaintiffs threatened to sue the Guillorys for defamation. Later that night Mrs. Guillory called her attorney who advised her to obtain written statements from the girls who had given her the information about the teachers. Mrs. Guillory went to the homes of Abigail Farbes, Joan Hess, Tammy Lemoine, Beverly Martin and Terry Bringold to obtain such statements. She said she explained the situation and alleged incidents to
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their parents and got their permission before asking the girls to write “letters” as to what they saw or heard about the matter. Three of these persons and her daughter did so. On March 10, 1980, Mrs. Guillory and Mrs. Huffmaster drew up a petition calling for an investigation by the Evangeline Parish School Board into wrongdoings at Bordelonville High School. The petition did not contain the names of the plaintiffs or of any specific facts concerning the alleged wrongdoings. These ladies then visited five or six homes in an attempt to obtain signatures on the petition. The school board directed a representative to make an investigation. Upon his failure to obtain any testimony of wrongdoing, the board concluded there was no basis for action against any teacher and closed the case. The recorded statements taken by the representatives were destroyed and the interested parties were notified in writing of the board’s decision. . . . Beverly Martin testified she had told Mrs. Guillory that she had heard students say that some of the teachers played with the students. In particular, she had heard Kenneth Maillet would take girls in the bathroom after practice, but they wouldn’t tell her what they did. She also told her that Garland Desselle was friendly with the girls and would allow them to sit in his lap and that he felt one girl during P.E. In addition she told Mrs. Guillory of an incident when Maxwell Desselle kissed her under the mistletoe. Abigail Farbes testified she had told Mrs. Guillory that Maxwell and Kenneth Maillet would flirt around with girls and that Beverly had told her that Maxwell Desselle once had grabbed Beverly and gave her a passionate kiss. Joan Hess testified that before the Mardi Gras trip she had her majorette uniform on under her jeans and part of the uniform was showing. She stated Mr. Maillet tugged at the jeans and a button came undone from the jeans. Joan further testified she told Kaye Guillory, the defendant’s daughter, that Kenneth Maillet tugged at her jeans, pulling a button off. Tammy Lemoine testified that in the written statement given Mrs. Guillory she said she heard that Kenneth Maillet and another girl “had something going on” and that Garland Desselle said “he was going to get some meat” from two girls “one of these days.”
The testimony as to the content of the statements Mrs. Guillory made to the principal and the parents of high school students is in dispute. Mr. Bordelon, the principal, said Mrs. Guillory told him the teachers were fondling and molesting girls, although she never used the word “intercourse.” Clara Laborde and Peggy Hess stated Mrs. Guillory had told them that one of the plaintiffs, Kenneth Maillet, had unzipped Mrs. Hess’ daughter’s pants before a Mardi Gras band trip and that the plaintiffs were molesting the girls. She also said some teachers were starting this in the elementary grades and taking them to bed by the time they reached the high school grades. Mrs. Guillory testified that she did not accuse the plaintiffs of anything, but merely told Mrs. Hess and Mrs. Laborde what she had heard from the girls and said she felt the plaintiffs might be having sexual relations with the students. Having heard things about these men, such as one girl having seen Kenneth Maillet with his pants down in the bathroom one night after basketball practice, she was trying to determine if they were true. She also stated at trial that she thought the parents had a right to know and she never intended to do any harm to the men allegedly involved. The plaintiffs emphatically denied ever molesting or having intercourse with any high school students. Kenneth Maillet did not recall any incident where he unbuttoned a girl’s jeans or did anything improper. Maxwell Desselle said he had harmlessly kissed Beverly Martin at a Christmas dinner. Mr. Bordelon and Maxwell Desselle denied the occurrence of Mr. Desselle patting a girl on the buttocks. Concerning the statement Mr. Guillory made to James Armand, Mr. Armand stated Mr. Guillory told him certain teachers were molesting girls on a school trip and named the three plaintiffs. Mr. Guillory disputed this by saying he told him some of the girls had stated to his wife that some of the teachers were “messing around.” He testified he did not intend any harm. The issues presented by this appeal are: (1) whether or not the jury erred in rendering a verdict in favor of the defendants and (2) whether or not the jury erred in awarding the defendants attorney’s fees under LSA-C.C. Article 2315.1.
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Public Officials and Figures
In order to maintain an action in defamation, the plaintiff must establish the following elements: (1) defamatory words; (2) publication; (3) falsity; (4) malice, actual or implied; and (5) resulting injury. The available defenses against an action in defamation are: (1) privilege and (2) truth. The appellants argue that the evidence presented sufficiently proved the elements necessary for an action in defamation and the defendants failed to bear their burden of proving privilege or truth. Assuming the evidence was sufficient to prove the first three elements of defamation, we find that a qualified privilege existed between Mrs. Guillory and each person she discussed the rumors with. A qualified privilege exists as to a communication, even if false, between parties sharing an interest or duty. However, to be a good defense such communication must be made in good faith and without malice. In the present case Mrs. Guillory had discussions with the school principal and with several parents of girls attending Bordelonville High School concerning the alleged actions of certain teachers. The interests shared by each of these persons were to protect the welfare of their children at school and to provide good teachers in the public schools. There was sufficient evidence for the jury to have found that Mrs. Guillory was in good faith and without malice in her communications to the principal and the parents. Several high school girls told her that certain teachers were playing with the female students. She had heard that one of the plaintiffs was taking girls into the bathroom after practice for an unmentioned purpose; that a teacher was allowing a girl to sit on his lap while he felt her body; that a teacher had unbuttoned the jeans of a girl; and that a teacher had kissed a student and he also had patted a girl on the buttocks. Hearing these things from the girls and a parent, it was not unreasonable for Mrs. Guillory to have believed that improprieties were occurring at the school. From these facts the jury could have concluded that Mrs. Guillory had reasonable grounds to believe her statements were true and were made in good faith and without malice. In such cases they were privileged. . . . From our review of the record we are unable to say that the verdict of the jury favoring the
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defendants on the plaintiffs’ demands is clearly wrong. . . . We do not believe the filing of these suits was frivolous. Our decision is based on the defense of qualified privilege and the record contains no indication of any lack of sincerity on the part of plaintiffs as to their legal position. Therefore the jury award of $3,000 to the Guillorys for attorney’s fees was in error and must be set aside. . . . For these reasons the judgment of the district court is reversed and set aside insofar as it awarded $3,000.00 in attorney’s fees to the plaintiffs. . . . Otherwise, it is affirmed. The costs of this appeal are assessed one-half to plaintiffs and one-half to the defendants. Affirmed in part and reversed in part.
CASE NOTE A father’s statement regarding the competency of a teacher of his child is protected by a qualified privilege. For the teacher to bring a successful action against the parent, it must be shown that the information conveyed by the parent was not only false, but also exhibited malice. The fact that the father communicated his complaint within the established channels of the school was insufficient to show malice. Here the parent wrote a letter to the school principal accusing the teacher of treating his child “most unfairly” and displaying a “remarkable insensitivity and behavior that was most unprofessional” and “inconsistent with good teaching practice.” The court held for the parent, saying that “a qualified privilege extends to all communications made bona fide upon any subject matter in which the party communicating has an interest, or in reference to which he has a duty, to a person having a corresponding interest or duty, and embraces cases where the duty is not a legal one but is of a moral or social character of imperfect obligation.” Swenson-Davis v. Martel, 135 Mich. App. 632, 354 N.W.2d 288 (1984), citing Timmis v. Bennett, 352 Mich. 355, 89 N.W.2d 748 (1958).
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Public Officials and Figures
Teachers, guidance counselors, principals, and other school officials who have an obligation as a part of their employment to obtain and dispense information on behalf of the schoolchildren
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are protected by a conditional privilege, meaning that an aggrieved plaintiff student would have to prove malice before liability could be determined and damages obtained. Conversely, the question arises, what is the protection of teachers or other school employees for imputations or defamation cast against them? If, for example, a newspaper article defames a teacher, what are the teacher’s rights in maintaining an action for libel? Are school personnel viewed as private persons or as public personages when they themselves bring actions against newspapers, parents, or other publishers of defamatory information? In answer, first it should be made clear that a private person may recover in an action for defamation where a public person cannot. Under common law, a private person’s reputation is protected against false imputations by a publisher, and the publisher is strongly strictly liable without consideration of fault. Keeton et al. explain, with regard to defamation of private persons, that “the intentional publisher of defamatory matter (at common law) published at his own peril in assessing truth or falsity of the matter published. Moreover, the burden of proving the truth of the matter rested on the defendant-publisher.”40 With regard to public persons, however, the situation is different. The U.S. Supreme Court has interpreted the First Amendment to bestow a privilege on defendant-publishers for imputations made against public persons. A constitutional privilege is thereby extended to the defendant-publisher that effectively shifts the burden of proof to the defamed plaintiff to prove that the defendant intended harm to the plaintiff. The public person must prove that the published material was false and the defendant acted in reckless disregard for the truth or with malice. The precedent that elaborated this “constitutional privilege to defame,” as Keeton et al. put it,41 is New York Times Co. v. Sullivan, a highly significant decision rendered by the Supreme Court in 1964.42 Since the New York Times case, the law of defamation as it pertains to freedom of speech and press has changed considerably. This and subsequent cases hold the interest of the publisher to be of vital importance to a free and informed society. The position of the press
is elevated above the normal law of defamation, and special rules apply, as defined by the New York Times case. In this case, a paid advertisement in the New York Times signed by a number of prominent individuals criticized the behavior of the Montgomery, Alabama, police in dealing with racial unrest. The police chief, Sullivan, claimed that the derogatory reference to police behavior amounted to defamation of him personally. The Alabama Supreme Court held that the publication was libel per se and that the New York Times was liable for half a million dollars without the plaintiff showing special damage or fault on the part of the Times. The U.S. Supreme Court reversed the lower court, holding that the guarantee of free speech under the First Amendment prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he or she proves that the statement was made with “actual malice” and that the statement was made with knowledge that it was false or in reckless disregard of whether it was false or not. This protection extended to both the newspaper and the private individuals who paid for the advertisement and signed it. Plaintiff in the case was unable to show that the New York Times actually had knowledge of the falsity of portions of the statement. Before the New York Times case, the common law of libel established three rules that, taken together, effectively required a publisher to ensure the absolute accuracy of statements made in criticism of any person: (1) The burden of proof was always placed on the publisher because defamatory statements were presumed to be false; (2) false information was presumed to be published with malice regardless of whether it was merely a misstatement, a mistake, or bad luck; and (3) the aggrieved party did not need to prove actual harm to his or her reputation—damage to his or her reputation was presumed by the simple fact of publication. These common-law rules of defamation applied to communications between private persons, and these commonlaw standards still prevail where the press is not involved.43 The New York Times case invoked “freedom of press” as a constitutional gloss on the common law and provided much more latitude for
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Public Officials and Figures
the press. Here the Supreme Court weighed the individual’s interest in reputation against the public’s interest in free speech and concluded that special consideration must be given the press when it criticizes public officials. The New York Times case made two major changes in the law: It created the category of public official, and it shifted the burden of proof to the plaintiff to prove that an untruth was conveyed with malice.44 Court decisions following the New York Times case have dealt primarily with two major questions: (1) What is the definition of public official, and how broad is the term? (2) What is the level of privilege of the press, and does it vary as the subject of the defamation becomes more remote from officialdom?45 In Rosenblatt v. Baer,46 the Supreme Court further defined “public official,” saying: It is clear, therefore, that the “public official” designation applies at the very least, to those among the hierarchy of government employees who have, or appear to have, substantial responsibility for or control over the conduct of governmental affairs.47
The definition of “public officials” in the New York Times case was broadened in Curtis Publishing Co. v. Butts48 to include “public figures”: The Supreme Court has characterized a “public figure” in the following manner: For the most part those who attain [the status of a public figure] have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. In either event, they invite attention and comment.49
The defendant-publisher’s assertion of a privilege cannot be so broad as to include all public employees. The Supreme Court has said specifically that the status of “public official” cannot “be thought to include all public employees.”50 In order to be classed as a public official, the public employee must be found to have a “substantial responsibility for control over the conduct of the governmental affairs.”51 In Gertz v. Robert Welch, Inc., the Supreme Court, in 1974, further clarified the meaning of
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“public figure” as one who assumes a role of importance in public affairs, that is, of general importance to the people.52 The Supreme Court more specifically defined a public figure as being one of two types: (1) “those who are public figures for all purposes because they have achieved such a significant role in the resolution of issues of importance as to make most true and discreditable conduct and characteristics matters of legitimate public interest, relating as such information does to credibility, trustworthiness, and integrity”; and (2) those who are public figures only because they have voluntarily injected themselves into the resolution of particular controversies or issues of importance to the general public.53 Later cases appear to pinpoint three aspects of the public figure that are necessary to permit a defendant to exercise a constitutional privilege for a questionable communication. First, the plaintiff must have voluntarily entered into a public issue or controversy; second, the issue must have been one the resolution of which could affect the general public or a substantial portion of the public in a meaningful way; and third, the defamation must have grown out of or have been related to the particular issue. If a plaintiff is adjudged to be a public official or a public figure, the publisher of the defamation is protected by a privilege that requires a showing of malice to be overcome. The burden of proof is on the plaintiff to give evidence of malicious intent on the part of the defendant, a burden that has in most cases been very difficult to sustain. Where a private individual is libeled by the press, liability of the press may be incurred by merely showing that the statement was untruthful. It is not necessary to show malice, nor is it required that the plaintiff show that the newspaper knew the publication was false. Whenever liability is imposed against the press for false publication, the damages must be limited to the actual injury sustained; general or punitive damages are not available. Teachers and Principals as Public Figures. Teachers are not usually considered to be public officials or public figures even though some courts have held to the contrary.54 Thus, imputations against a teacher by the student press are actionable if the teacher shows the student publisher
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was at fault by directing the defamation toward the teacher. As with teachers, the precedents are mixed in determining whether school principals are public officials or public figures. It probably all depends on the specific situation in which the principal is involved. The classification of principals would therefore most readily be determined, as Justice Powell suggested in Gertz, on a case-by-case basis. He said that “it is preferable to reduce the public-figure question to a more meaningful context by looking to the nature and extent of an individual’s participation in the particular controversy giving rise to the defamation.”55 Board Members and Superintendents as Public Figures. Board members and superintendents hold public positions, board members as officials and superintendents usually as employees. Both have substantial enough responsibility over conduct of public affairs, public taxation, and public services as to cast them into the class of public officials or public figures. Therefore, precedent suggests that both board members and superintendents would typically be classified as “public figures” because they have voluntarily injected themselves into issues that are of general importance to the public or into issues in which a large segment of the public has an interest.
Newspaper Article Accusing Coach of Being a Liar Is Not Entitled to Separate Constitutional Privilege for “Opinion”
Milkovich v. Lorain Journal Co. Supreme Court of the United States, 1990. 497 U.S. 1, 110 S. Ct. 2695.
Chief Justice REHNQUIST delivered the opinion of the Court. Respondent J. Theodore Diadiun authored an article in an Ohio newspaper implying that petitioner Michael Milkovich, a local high school wrestling coach, lied under oath in a judicial proceeding about an incident involving petitioner and his team which occurred at a wrestling
match. Petitioner sued Diadiun and the newspaper for libel, and the Ohio Court of Appeals affirmed a lower court entry of summary judgment against petitioner. This judgment was based in part on the grounds that the article constituted an “opinion” protected from the reach of state defamation law by the First Amendment to the United States Constitution. We hold that the First Amendment does not prohibit the application of Ohio’s libel laws to the alleged defamations contained in the article. This case is before us for the third time in the odyssey of litigation spanning nearly 15 years. Petitioner Milkovich, now retired, was the wrestling coach at Maple Heights High School in Maple Heights, Ohio. In 1974, his team was involved in an altercation at a home wrestling match with a team from Mentor High School. Several people were injured. In response to the incident, the Ohio High School Athletic Association (OHSAA) held a hearing at which Milkovich and H. Don Scott, the Superintendent of Maple Heights Public Schools, testified. Following the hearing, OHSAA placed the Maple Heights team on probation for a year and declared the team ineligible for the 1975 state tournament. OHSAA also censored Milkovich for his actions during the altercation. Thereafter, several parents and wrestlers sued OHSAA in the Court of Common Pleas of Franklin County, Ohio, seeking a restraining order against OHSAA’s ruling on the grounds that they had been denied due process in the OHSAA proceeding. Both Milkovich and Scott testified in that proceeding. The court overturned OHSAA’s probation and ineligibility orders on due process grounds. The day after the court rendered its decision, respondent Diadiun’s column appeared in the News-Herald, a newspaper which circulates in Lake County, Ohio, and is owned by respondent Lorain Journal Co. The column bore the heading “Maple beat the law with the ‘big lie,’ ” beneath which appeared Diadiun’s photograph and the words “TD Says.” The carryover page headline announced “ . . . Diadiun says Maple told a lie.” The column contained the following passages: A lesson was learned (or relearned) yesterday by the student body at Maple Heights High School, and by anyone who attended the Maple-Mentor wrestling meet of last Feb. 8.
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Public Officials and Figures A lesson which, sadly, in view of the events of the past year, is well they learned early. It is simply this: If you get in a jam, lie your way out. If you’re successful enough, and powerful enough, and can sound sincere enough, you stand an excellent chance of making the lie stand up, regardless of what really happened. The teachers responsible were mainly Maple wrestling coach, Mike Milkovich, and former superintendent of schools, H. Donald Scott. . . . Anyone who attended the meet, whether he be for Maple Heights, Mentor, or impartial observer, knows in his heart that Milkovich and Scott lied at the hearing after each having given his solemn oath to tell the truth. But they got away with it. Is that the kind of lesson we want our young people learning from their high school administrators and coaches? I think not. . . .
Petitioner commenced a defamation action against respondents in the Court of Common Pleas of Lake County, Ohio, alleging that the headline of Diadiun’s article and the 9 passages quoted above “accused plaintiff of committing the crime of perjury, an indictable offense in the State of Ohio, and damaged plaintiff directly in his life-time occupation of coach and teacher, and constituted libel per se.” . . . Subsequently, . . . the Ohio Court of Appeals in the instant proceedings affirmed a trial court’s grant of summary judgment in favor of respondents, concluding that “it has been decided, as a matter of law, that the article in question was constitutionally protected opinion.” . . . We granted certiorari . . . to consider the important questions raised by the Ohio courts’ recognition of a constitutionally required “opinion” exception to the application of its defamation laws. We now reverse. Since the latter half of the 16th century, the common law has afforded a cause of action for damage to a person’s reputation by the publication of false and defamatory statements. . . . . . . Defamation law developed not only as a means of allowing an individual to vindicate his good name, but also for the purpose of obtaining redress for harm caused by such statements. . . . As the common law developed in this country, apart from the issue of damages, one usually needed only allege an unprivileged publication
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of false and defamatory matter to state a cause of action for defamation. See, e.g., Restatement of Torts § 558 (1938); Gertz v. Robert Welch, Inc., 418 U.S., at 370, 94 S. Ct., at 3022 (WHITE, J., dissenting) (“Under typical state defamation law, the defamed private citizen had to prove only a false publication that would subject him to hatred, contempt, or ridicule”). The common law generally did not place any additional restrictions on the type of statement that could be actionable. Indeed, defamatory communications were deemed actionable regardless of whether they were deemed to be statements of fact or opinion. See, e.g., Restatement of Torts, supra, §§ 565–567. As noted in the 1977 Restatement (Second) of Torts §§ 566, Comment a: Under the law of defamation, an expression of opinion could be defamatory if the expression was sufficiently derogatory of another as to cause harm to his reputation, so as to lower him in the estimation of the community or to deter third persons from associating or dealing with him. . . . The expression of opinion was also actionable in a suit for defamation, despite the normal requirement that the communication be false as well as defamatory. . . . This position was maintained even though the truth or falsity of an opinion—as distinguished from a statement of fact—is not a matter that can be objectively determined and truth is a complete defense to a suit for defamation.
However, due to concerns that unduly burdensome defamation laws could stifle valuable public debate, the privilege of “fair comment” was incorporated into the common law as an affirmative defense to an action for defamation. “The principle of ‘fair comment’ afford[ed] legal immunity for the honest expression of opinion on matters of legitimate public interest when based upon a true or privileged statement of fact.” 1 F. Harper & F. James, Law of Torts § 5.28, p. 456 (1956) (footnote omitted). As this statement implies, comment was generally privileged when it concerned a matter of public concern, was upon true or privileged facts, represented the actual opinion of the speaker, and was not made solely for the purpose of causing harm. See Restatement of Torts, supra, § 606. “According to the majority rule, the privilege of fair comment applied only to an expression of opinion and not to a false statement of fact, whether it was expressly stated or implied from
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an expression of opinion.” Restatement (Second) of Torts, supra, § 566 Comment a. Thus under the common law, the privilege of “fair comment” was the device employed to strike the appropriate balance between the need for vigorous public discourse and the need to redress injury to citizens wrought by invidious or irresponsible speech. In 1964, we decided in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686, that the First Amendment to the United States Constitution placed limits on the application of the state law of defamation. There the Court recognized the need for “a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” . . . This rule was prompted by a concern that, with respect to the criticism of public officials in their conduct of governmental affairs, a state law “ ‘rule compelling the critic of official conduct to guarantee the truth of all his factual assertions’ would deter protected speech.” Gertz v. Robert Welch, Inc., 418 U.S., at 334, 94 S. Ct., at 3004 (quoting New York Times, supra, 376 U.S., at 279, 84 S. Ct., at 725). Three years later, in Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S. Ct. 1975, 18 L. Ed. 2d 1094 (1967), a majority of the Court determined “that the New York Times test should apply to criticism of ‘public figures’ as well as ‘public officials.’ The Court extended the constitutional privilege announced in that case to protect defamatory criticism of nonpublic persons ‘who are nevertheless intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large.’ ” . . . The next step in this constitutional evolution was the Court’s consideration of a private individual’s defamation actions involving statements of public concern. Although the issue was initially in doubt, . . . the Court ultimately concluded that the New York Times malice standard was inappropriate for a private person attempting to prove he was
defamed on matters of public interest. . . . As we explained: Public officials and public figures usually enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy. . . . [More important,] public officials and public figures have voluntarily exposed themselves to increased risk of injury from defamatory falsehood concerning them. No such assumption is justified with respect to a private individual. . . .
Nonetheless, the Court believed that certain significant constitutional protections were warranted in this area. First, we held that the States could not impose liability without requiring some showing of fault. . . . Second, we held that the States could not permit recovery of presumed or punitive damages on less than a showing of New York Times malice. . . . Still later, in Philadelphia Newspapers, Inc. v. Hepps, . . . we held “that the common-law presumption that defamatory speech is false cannot stand when a plaintiff seeks damages against a media defendant for speech of public concern.” . . . In other words, the Court fashioned “a constitutional requirement that the plaintiff bear the burden of showing falsity, as well as fault, before recovering damages.” . . . Although recognizing that “requiring the plaintiff to show falsity will insulate from liability some speech that is false, but unprovably so,” the Court believed that this result was justified on the grounds that “placement by state law of the burden of proving truth upon media defendants who publish speech of public concern deters from speech because of the fear that liability will unjustifiably result.” . . . Respondents would have us recognize, in addition to the established safeguards discussed above, still another First Amendmentbased protection for defamatory statements which are categorized as “opinion” as opposed to “fact.” For this proposition they rely principally on the following dictum from our opinion in Gertz: Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the
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Public Officials and Figures conscience of judges and juries but on the competition of other ideas. But there is no constitutional value in false statements of fact. . . .
Read in context, though, the fair meaning of the passage is to equate the word “opinion” in the second sentence with the word “idea” in the first sentence. . . . Thus we do not think this passage from Gertz was intended to create a wholesale defamation exemption for anything that might be labeled “opinion.” . . . Not only would such an interpretation be contrary to the tenor and context of the passage, but it would also ignore the fact that expressions of “opinion” may often imply an assertion of objective fact. If a speaker says, “In my opinion John Jones is a liar,” he implies a knowledge of facts which lead to the conclusion that Jones told an untruth. Even if the speaker states the facts upon which he bases his opinion, if those facts are either incorrect or incomplete, or if his assessment of them is erroneous, the statement may still imply a false assertion of fact. Simply couching such statements in terms of opinion does not dispel these implications; and the statement, “In my opinion Jones is a liar,” can cause as much damage to reputation as the statement, “Jones is a liar.” As Judge Friendly aptly stated: “[It] would be destructive of the law of libel if a writer could escape liability for accusations of [defamatory conduct] simply by using, explicitly or implicitly, the words ‘I think.’ ” . . . We are not persuaded that . . . an additional separate constitutional privilege for “opinion” is required to ensure the freedom of expression guaranteed by the First Amendment. The dispositive question in the present case then becomes whether or not a reasonable factfinder could conclude that the statements in the Diadiun column imply an assertion that petitioner Milkovich perjured himself in a judicial proceeding. We think this question must be answered in the affirmative. As the Ohio Supreme Court itself observed, “the clear impact in some nine sentences and a caption is that [Milkovich] ‘lied at the hearing after . . . having given his solemn oath to tell the truth.’ ” . . . This is not the sort of loose, figurative or hyperbolic language which would negate the impression
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that the writer was seriously maintaining petitioner committed the crime of perjury. Nor does the general tenor of the article negate this impression. We also think the connotation that petitioner committed perjury is sufficiently factual to be susceptible of being proved true or false. . . . The numerous decisions discussed above establishing First Amendment protection for defendants in defamation actions surely demonstrate the Court’s recognition of the Amendment’s vital guarantee of free and uninhibited discussion of public issues. But there is also another side to the equation; we have regularly acknowledged the “important social values which underlie the law of defamation,” and recognize that “[s]ociety has a pervasive and strong interest in preventing and redressing attacks upon reputation.” . . . Justice Stewart put it with his customary clarity: The right of a man to the protection of his own reputation from unjustified invasion and wrongful hurt reflects no more than our basic concept of the essential dignity and worth of every human being—a concept at the root of any decent system of ordered liberty. . . . The destruction that defamatory falsehood can bring is, to be sure, often beyond the capacity of the law to redeem. Yet, imperfect though it is, an action for damages is the only hope for vindication or redress the law gives to a man whose reputation has been falsely dishonored. 86 S. Ct., at 679–680 (Stewart, J., concurring).
We believe our decision in the present case holds the balance true. The judgment of the Ohio Court of Appeals is reversed and the case remanded for further proceedings not inconsistent with this opinion. Reversed.
CASE NOTES 1. The New York Times malice standard is a higher standard that is required in commonlaw defamation actions. A plaintiff under the common-law standard does not need to show that the defendant made the defamatory statement with knowledge that it was false. Bahr v. Boise Cascade Corp., 766 N.W.2d 910 (Minn. 2009).
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2. The actual malice standard brought by a public figure in a defamation action is subjective. Under this rule the plaintiff (public figure) must prove that the defendant actually had serious doubt as to the truth of the publication. Cottrell v. National Collegiate Athletic Association, 975 So.2d 306 (Ala. 2007), cert denied, 128 S. Ct. 1334, 229 Ed. Law. Rep. 327 (2008). 3. In order to prove actual malice, a public figure must prove that the defendant published a defamatory falsehood with knowledge that it was false or with reckless disregard of whether it was false or not. A public figure does not need to prove that the defamation was published with ill will, spite, or evil motive. Abdel-Hafiz v. ABC, Inc., 240 S.W.2d 492 (Tex. App. Fort Worth 2007). 4. In a New York case, a high school football coach sued a reporter for defamation for an article that indicated that the coach “showed himself to be a big loser” and that he cursed, belittled, and verbally abused the players. Testimony from game officials, cheerleaders, players, and parents verified that the charge against the coach was false. The coach, however, conceded that he was a “public figure,” invoking New York Times malice (actual malice) as the standard of proof against the reporter. The court explained that public figure status triggers three constitutionally based requirements that the plaintiff must meet in order to sustain a judgment against newspaper: ■
■ ■
Plaintiff is required to prove defamatory statements were published with actual malice. Actual malice must be established by clear and convincing evidence. Appellate review must include an independent review of the evidence germane to the actual malice determination to ensure that the determination rests upon clear and convincing evidence.
The court further observed that falsity and actual malice are distinct concepts. “It is one thing to publish a false statement and quite another to do so knowingly and recklessly.” Here the coach was unable to sustain the test of clear and convincing evidence of intentional and reckless disregard. Mahoney v. Adirondack
Publishing Co., 71 N.Y.2d 31, 523 N.Y.S.2d 480, 517 N.E.2d 1365 (1987).
School Principal Is a Public Official Within New York Times Definition
Johnson v. Robbinsdale Independent School District No. 281 United States District Court, District of Minnesota, 1993. 827 F. Supp. 1439.
DOTY, District Judge. This matter is before the court on a motion for summary judgment brought by defendants Karen and Randy Forslund. Based on a review of the file, record and proceedings herein, and for the reasons stated below, the court grants defendants’ motion. . . . Shirley Johnson (“Johnson”) is an AfricanAmerican female. In 1990, Johnson was hired by Robbinsdale Independent School District No. 281 (“the District”) to serve as the principal of the Meadow Lake Elementary School (“Meadow Lake”). . . . At the beginning of the school year, Johnson implemented a new lunch schedule that was unpopular with staff and parents. The Meadow Lake staff complained about Johnson’s lack of communication and procedures being changed without their input. In October 1990, Johnson received an unfavorable evaluation concerning, primarily, her relationship with the staff and communication with parents. The District issued Johnson a notice of deficiency. The notice was revised and corrected in part in December 1990. Johnson filed a grievance challenging her performance appraisal. On December 19, 1990, the District superintendent and forty staff members from Meadow Lake met to discuss concerns regarding Johnson’s performance as principal. The staff alleged that Johnson gave preferential treatment
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Public Officials and Figures
to minority children. The staff accused Johnson of dismissing discipline problems concerning minority children as a “cultural thing,” while punishing white children for similar behavior. After the meeting the District superintendent initiated an investigation.* On December 21, 1990, a group of minority parents along with members of the news media asked to meet with Don Wagner (“Wagner”), director of elementary education for the District. After meeting with Wagner, the parents and media proceeded to Meadow Lake to meet with Johnson. The parents entered the school and disrupted some classrooms. The media interviewed Johnson and broadcast the segment on the evening news. Staff members and parents complained about how Johnson handled the incident; some parents worried about the safety of their children. Sometime in late December or early January, Karen and Randy Forslund wrote a letter to the superintendent and the school board voicing their concerns about Meadow Lake and Johnson. The letter said that the Forslund children “learned prejudice from Johnson” by watching “black children misbehave and having no consequences” while white children were punished for the same situation. The Forslund children apparently “saw black children return from the principal’s office with candy while white children were given yellow slips.” The Forslunds stated that black children had been assaulting white children on the bus. Although parents reported the problem, it continued for a month before Johnson took action by appearing on the bus and telling the students to stop. The Forslunds said they heard that Johnson called a certain teacher a racist during a confrontation with the faculty. The teacher was an acquaintance of the Forslunds and they defended her in the letter.
*In January 1991, the District suspended Johnson with pay and benefits pending the outcome of the investigation. Minority parents and others protested the suspension. On February 19, 1991, Johnson requested reinstatement and filed a charge with the Equal Employment Office Commission alleging racial discrimination. Johnson was reassigned as “principal on special assignment” with no change in pay or benefits. On May 21, 1991, Johnson was served with formal notice that the school board declined to renew her contract for the following year.
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The Forslunds also complained about the lunch schedule imposed for the first few weeks of the school year. In summary, the Forslunds stated: All of these things show me that Shirley Johnson is not a good administrator. She cannot handle the job. In addition to not being able to do the job, she has introduced prejudice to the children and faculty. She should not be whining about her skin color. Her inability to be a principal has caused more harm to Meadow Lake School and its population than her skin color.
Johnson sued Karen and Randy Forslund based on the allegedly defamatory statements made in their letter. The Forslunds move for summary judgment contending that Johnson is a public official within the meaning of New York Times Co. v. Sullivan, 376 U.S. 354, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964), and has provided no evidence of actual malice. In the alternative, the Forslunds claim that Johnson is at least a public figure. Finally, the Forslunds urge this court to hold that the statements in the letter are shielded by a qualified privilege which has not been abused. Johnson contends that she is neither a public official nor a public figure. Johnson admits there is no evidence that the Forslunds acted with actual malice but requests that she be allowed more time to conduct discovery. . . . In New York Times, the Supreme Court recognized that public policy supports a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” . . . To encourage open debate, the Court imposed a constitutional rule which bars a public official from recovering damages for defamatory publications unless the official proves the statements were made with actual malice. The United States Supreme Court has not decided “how far down into the lower ranks of government employees the ‘public official’ designation would extend.” . . . Not every public employee is a public official. . . . The issue before the court is whether a public elementary school teacher is a public official within the meaning of New York Times.
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The question is one of first impression in Minnesota. The public or private status of a plaintiff in a defamation action is one of law. . . . The Minnesota Supreme Court has evinced its intent to define “public official” broadly. The Court has held that government employees who “perform governmental duties, directly related to the public interest, are public officials and, as such, fall squarely within the ‘actual malice’ requirement set forth in New York Times v. Sullivan.” Hirman v. Rogers, 257 N.W.2d 563, 566 (Minn. 1977). The court uses three criteria in evaluating whether a plaintiff is a public official: (1) employees performing governmental duties directly related to the public interest; (2) employees holding a position to influence significantly the resolution of public issues; and (3) employees having, or appearing to the public to have, substantial responsibility for or control over the conduct of government affairs. . . . While there are no Minnesota decisions directly on point, other jurisdictions have considered whether a school principal is a public official. Those courts are divided. . . . The division among courts appears to be based on differing perspectives concerning whether education is an important aspect of government and the responsibility for and control principals have over public education. Courts that have found public official status reason that the apparent importance of principals invokes an independent public interest in their qualifications and performance beyond the general public interest in all government employees. Courts that have not applied the heightened standard conclude that, under normal circumstances, a principal’s relationship with government does not warrant public official status under New York Times. Education of children is of vital importance to our society. . . . Education is an essential government function. . . . Minnesota’s compulsory education statute reflects the centrality of public education. Principals are the persons who control, supervise and govern public schools. Minn. Stat. § 123.34. While principals must adhere to rules set by the board of education and the school board, they have broad authority over the format of educational programs employed in public schools. . . . Thus, principals have significant
governmental power over public education and the students they supervise. The court concludes that Minnesota courts would hold that public school principals are government employees who exercise significant authority in the performance of governmental duties. Thus, the court holds that public school principals criticized for their official conduct are public officials for purposes of defamation law. A contrary holding would stifle public debate about important local issues. . . . It is undisputed that Johnson, as school principal, managed teachers and other school employees and at least appeared to the public to be the person in charge of operating the school. Johnson contends, however, that her job description does not present an accurate picture of her real authority. Johnson claims that her superiors, as well as disloyal subordinates, denied her the power she theoretically had as principal of Meadow Lake. It is clear that in the eyes of the public Johnson was the person in charge of Meadow Lake. The fact that Johnson appeared to have responsibility over the conduct of education at Meadow Lake is sufficient to trigger public official standards. . . . It is not crucial for Johnson to actually exercise the power the public perceived her to possess. Because Johnson is a public official, an essential element of her defamation claim against the Forslunds is clear and convincing proof that the statements were made with actual malice. “Actual malice” means with knowledge that the statements were false or with reckless disregard of whether they were true or false. . . . “Reckless disregard” requires evidence that the defendants “in fact entertained serious doubts as to the truth of the publication.” St. Amant v. Thompson, 390 U.S. 727, 731, 88 S. Ct. 1323, 1325 (1968). Whether the evidence in the record in a defamation case is sufficient to support a finding of actual malice is a question of law. . . . The record reveals no evidence the Forslunds entertained any serious doubts as to the truth of their statements. Most of the information was provided to the Forslunds by their children. There is no evidence to suggest that the Forslunds had any reason to suspect their children’s accounts were not credible. Johnson’s reliance on Hunt v. University of Minnesota, 465 N.W.2d 88 (Minn. App. 1911), is misplaced. . . .
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Public Officials and Figures
The court concludes that Johnson has failed to provide any evidence that the Forslunds made the statements with actual malice. It is not necessary for the court to decide whether Johnson is a public figure or whether an important public issue is involved. If the court were to reach those issues, however, it would answer them affirmatively under the circumstances of this case. Likewise, the privilege issue raised in this case need not be decided. . . . The court concludes that Johnson as a public school principal is a public official for purposes of applying the New York Times v. Sullivan defamation standard. Because Johnson is a public official, the Forslunds are liable for damages for criticizing her official conduct only if Johnson proves with convincing clarity that they made the statements with actual malice. This Johnson has failed to do. Accordingly, it is hereby ordered that the motion of defendants Karen Forslund and Randy Forslund for summary judgment is granted. It is further ordered that the parties shall bear their own costs. The court, finding there is no just reason for delay, directs that judgment be entered as to defendants Karen Forslund and Randy Forslund.
CASE NOTES 1. Teacher as Public Official or Public Figure. The prevailing view of the courts is that teachers are not “public officials” or “public figures.” See Franklin v. Lodge 1108, Benevolent and Protective Order of Elks, 97 Cal. App. 3d 915, 159 Cal. Rptr. 131, 136–37 (1979); Nodar v. Galbreath, 462 So.2d 803, 808 (Fla. 1984); McCutcheon v. Moran, 99 Ill. App. 3d 421, 54 Ill. Dec. 913, 916, 425 N.E.2d 1130, 1133 (1981); Poe v. San Antonio Express-News Corp., 590 S.W.2d 537 (Tex. Civ. App. 1979); Richmond Newspapers, Inc. v. Lipscomb, 234 Va. 277, 362 S.E.2d 32 (1987), cert. denied, 486 U.S. 1023, 108 S. Ct. 1997 (1988). Yet, courts in some jurisdictions have held public school teachers to be “public officials.” Sewell v. Brookbank, 119 Ariz. 422, 581 P.2d 267 (Ariz. Ct. App. 1978); Johnston v. Corinthian Television Corp., 583 P.2d 1101 (Okla. 1978). Each of these decisions rested on the authority of Basarich v. Rodeghero, 23 Ill. App. 3d 889, 321 N.E.2d 739, 742 (1974). This case held that public high school teachers are “public
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officials” or “public figures.” Subsequent Illinois appellate cases, and cases from other jurisdictions, have undermined the authority of Basarich. See McCutcheon v. Moran, 99 Ill. App. 3d 421, 54 Ill. Dec. 913, 425 N.E.2d 1130 (1981); Johnson v. Board of Junior College No. 508, 31 Ill. App. 3d 270, 334 N.E.2d 442 (1975); Kelley v. Bonney, 221 Conn. 549, 606 A.2d 693 (1992); Luper v. Black Dispatch Publishing Co., 675 P.2d 1028 (Okla. App. 1983). The rationale for not classifying teachers as public officials is given by a court in Maine: We find too, that there are countervailing considerations that militate against stripping a public school teacher of the protection afforded by the common law tort of defamation. The Supreme Court noted in Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S. Ct. 2997 (1974) that “[p]ublic officials and public figures usually enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy.” We do not find that a public school teacher usually has this greater access. Like other private individuals, the teacher is vulnerable to injury from defamation, and the state interest in protecting the teacher is greater than the interest in protecting those with readier access to channels of communication. See also Franklin, 97 Cal. App. 3d at 923, 159 Cal. Rptr. at 136 (application of the New York Times rule to a school teacher characterized as “a real and intolerable danger to the freedom of intellect and of expression which the teacher must have to teach effectively”). Moreover, we do not find any “assumption of the risk” by accepting a public teaching position, without more a private individual cannot be said to “have voluntarily exposed [himself] to increased risk of injury from defamatory falsehood.” True v. Ladner, 513 A.2d 257 (Me. 1986).
2. School Board Member as Public Official. A New Mexico appellate court held that a member of a local school board is a “public official” and not merely an employee in a defamation action. According to this court, members of local school boards govern the public school system, a role of utmost importance in a community, and school board policies are subject to scrutiny of the entire community. Thus, this court found that such persons who are elected to make decisions for public education clearly “have, or appear to the public to have,
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substantial responsibility for or control over the conduct of governmental affairs.” Thus, the public interest in openness in public decisions requires that school board members be classified as public officials. Garcia v. Board of Education, 106 N.M. 757, 750 P.2d 118 (1988). 3. School Superintendent as Public Official. The superintendent of a municipal school system was held to be a “public official” in a libel action against a newspaper in Ohio. The court pointed out that the school superintendent is the executive officer for the school board and has substantial public responsibilities for operation of the public school system. The court felt that to hold that the school superintendent is not a “public official” could potentially stifle public debate about important local education issues. Scott v. News-Herald, 25 Ohio St. 3d 243, 496 N.E.2d 699 (1986). 4. School Principal as Public Official or Public Figure. In New York, a principal is a public officer. In this case, a retired school principal sued the school superintendent for alleged defamatory statements published in a local newspaper. The court held that public policy required that the law hold that a public school principal is a public official. Jee v. New York Post Co., Inc., 176 Misc. 2d 253, 671 N.Y.S.2d 920 (1998). Similarly, a Massachusetts court ruled that a school principal is a public official when a principal sued for defamation to recover for injury to his reputation due to an alleged libelous newspaper article in which he was rated “unsuitable” for his position. Andreucci v. Foresteire, 1998 WL 118451 (1998). And, too, a Louisiana court held that a school supervisor is a public official. Presumably the same rationale would apply to the position of school principal. State v. Defley, 395 So.2d 759 (La. 1981). A school principal may be classified as a “public figure” under the definition of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710 (1964), further interpreted by the Supreme Court to the effect that “those who, by reason of the notoriety of their achievements or the vigor and success with which they seek the public’s attention, are properly classed as public figures. . . .” Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S. Ct. 2997 (1974). In following such rationale, a Maryland court found a school principal to be within the
classification of a “public figure–public official.” In this instance, the principal was unable to recover damages from a newspaper of general circulation that had published one article entitled “Rating of Principals,” which had several negative opinions about the principal’s job performance. The court concluded that comments, criticisms, and opinions concerning the involvement of public persons in matters of public interest are protected by a First Amendment privilege. To overcome the privilege, the plaintiff must prove a “reckless disregard” for the truth. An opinion regarding an evaluation of this nature cannot be construed as defamation. Kapiloff v. Dunn, 27 Md. App. 514, 343 A.2d 251 (1975). A Minnesota court, in ruling that a school principal is a public official, reviewed three criteria to determine if a person is a public official: (1) whether the person is employed in a position that performs governmental duties directly related to the public interest; (2) whether the person is employed in a position that can influence significantly the resolution of public issues; and (3) whether the person is employed in a position that has, or appears to the public to have, substantial responsibility for or control over the conduct of governmental affairs. In holding that school principals are public officials, this court said that education is an essential governmental function, that state compulsory attendance laws reflect the centrality of public education, and that principals are the persons who control, supervise, and govern the public schools; thus, principals are “public officials.” Britton v. Koep, 470 N.W.2d 518 (Minn. 1991). See also Hirman v. Rogers, 257 N.W.2d 563 (Minn. 1977). A Mississippi court found that a principal of an attendance center for black students is a public official and could not prevail in a libel action against a newspaper without a showing of malice. Reaves v. Foster, 200 So.2d 453 (Miss. 1967). At least two court decisions in Tennessee have held that school principals are “public officials” within the New York Times definition. The fact that school principals are authority figures, represent government to the students and parents, and make decisions affecting taxpayers supports that conclusion.
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Student Records
Junior-Spence v. Keenan, 190 Tenn. App. LEXIS 130 (1990); Press, Inc. v. Verran, 569 S.W.2d 435 (Tenn. 1978). In a widely publicized matter regarding a Vermont school district deficit and subsequent court action, a school principal alleged he had been defamed and sought damages against a newspaper. The court in ruling that the plaintiff school principal was a “public official” pointed out that he managed teachers and other employees, was in charge of the operation of the public school, disciplined pupils, and certified time cards for payment of employees from public tax funds. Palmer v. Bennington School District, 159 Vt. 31, 615 A.2d 498 (1992). 5. Principal Is Not Public Official or Public Figure. Defamation cases in other jurisdictions have held that school officials are not public officials. An Indiana court reviewed the status of the school principal as a “public official” in a case where a school principal brought suit against a teachers’ union for defamation and intentional infliction of emotional distress. The union defended by arguing that the principal was a public official or figure. The court ruled against the union and held that the principal was not a public official or public figure. Beeching v. Levee, 764 N.E.2d 669 (Ind. 2002). In South Carolina, an assistant principal is not a public official. Where a local minister made racial slurs about an assistant principal and was sued, the minister defended by arguing that the assistant principal was a public official. The court held against the minister. Goodwin v. Kennedy, 347 S.C. 30, 552 S.E.2d 319 (S.C. Ct. App. 2001). In Illinois, school principals appear not to be “public officials” within the New York Times rule. A white school principal sued, claiming that she had been defamed by public assertion that she was a racist, ran the school like a plantation, was insensitive to the community, was a dictator, and was destroying the children’s minds. The court ruled that she was not a public official and therefore was not required to prove malice in order to prevail in the suit. Stevens v. Tillman, 568 F. Supp. 289 (N.D. Ill. 1983), 661 F. Supp. 702 (N.D. Ill. 1986), aff’d, 855 F.2d 394 (7th Cir. 1988), cert denied, 489 U.S. 1065, 109 S. Ct. 1339 (1989); see also McCutcheon v. Moran,
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99 Ill. App. 3d 421, 425 N.E.2d 1130 (1981). In ruling that a school principal is not a “public official,” a Georgia court pointed out that a principal is too far removed from governmental and public policy decision making to warrant such legal classification. Ellerbee v. Mills, 262 Ga. 516, 422 S.E.2d 539 (1992). The Ohio Supreme Court has held that a public school principal is not a public official for purposes of defamation law. East Canton Education Ass’n. v. McIntosh, 709 N.E.2d 468 (Ohio 1999). 6. Coaches and Athletes as Public Officials or Public Figures. A coach in a public university, a mere employee in a university department, subordinate to an athletic director, does not have the status of a “public official.” Neither can the coach be classified as a “public figure” simply because of her or his success as a coach. In one case, the athletic director’s allegations that the coach had misappropriated funds were slanderous, warranting a recovery of damages by the coach. The court found that public school coaches are not public officials or public figures. Moss v. Stockard, 580 A.2d 1011 (D.C. 1990). 7. Actual Malice. A plaintiff who has been determined to be a public official must prove actual malice of a defendant-newspaper. To show that there was ill will or that the defendant failed to inquire more fully into the accuracy of a news article is insufficient to show malice. Johnson v. Southwestern Newspaper Corp., 855 S.W.2d 182 (Tex. Civ. App. 1993); St. Amant v. Thompson, 390 U.S. 727, 88 S. Ct. 1323 (1968).
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Student Records
Teachers, guidance counselors, and principals are generally involved in the release of student information and records to other teachers, professional personnel within the school, prospective employers outside the school, or other educational institutions to which students may be applying for entrance. Considering these areas of pupil information flow and the potential harm that can result, common law suggests certain practices to be appropriate. First, information should not be conveyed to other teachers or administrators unless the motive and purpose are to assist and enhance the
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educational opportunities of the pupil. Transmittal should be made in the proper channels and to persons assigned the responsibility for the relevant educational function. Gossip or careless talk among teachers, which is not calculated to help the student, may be shown to be malicious and not protected by the cloak of qualified privilege. Second, pupil information should be transmitted to prospective employers only upon request. This protects the teacher from the presumption that the transmittal was made with intent to defame the student with malicious intent.56 A qualified privilege has been upheld when a communicator responded to a questionnaire and gave answers only to specific questions.57 It is a good practice not to release information over a telephone unless the identity of the caller is absolutely certain. Third, records should be released to colleges and other institutions only if there is a statutory or regulatory requirement for the transmittals or if the pupil requests the conveyance. Most states have laws or regulations that require the transfer of elementary and secondary school pupils’ records when they change schools. This, of course, facilitates the transition for the pupil as well as for the school, and it provides needed data for placement and is therefore proper. Beyond common-law protection of student privacy, both state and federal statutes may intervene to provide additional safeguards. The Family Educational Rights and Privacy Act (FERPA) was passed in August 1974 as an amendment to the Omnibus Education Bill.58 The Act establishes standards to which school districts must adhere in handling student records. Failure to abide by the law can result in the withdrawal of federal education funds. Additionally, Congress included other privacy provisions in the 1978 General Education Provisions Act (GEPA)59 and in the Education of All Handicapped Children Act (EAHCA) of 1975.60
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Family Educational Rights and Privacy Act61
The federal Family Educational Rights and Privacy Act (FERPA) of 1974 establishes standards for schools to follow in handling student records. 20 U.S.C. § 1232g. Parents are given the right to inspect all records that schools maintain on their children and are extended the opportunity to
challenge the accuracy of the records. Parents must consent before the school can release the student’s records to agencies outside designated educational categories. Consent may also be given by the student, in lieu of the parent, to release his or her own records upon the attainment of age 18 or upon entry to postsecondary school. School districts that do not follow the required procedures risk losing federal funds administered by the U.S. Department of Education. Before FERPA was enacted, students at times had difficulty obtaining access to their school records. This was true in spite of the fact that some courts had held that parents had a right of access to records unless such access was detrimental to the public interest. This right was explained by a New York court in 1961 when it ruled that “absent constitutional, legislative, or administrative permission or prohibition, a parent had the right to inspect the records of his child maintained by school authorities as required by law.”62 This rationale was based on the common-law rule that a person with an interest in public records is entitled to inspect them. Yet, students and parents had little leverage over schools in the control of their records. Challenges to the content of student records usually required litigation to obtain redress for the parent or the student. The FERPA thereafter introduced a required uniformity in the handling of student records, between students and the school and between schools and other educational institutions. Under the FERPA, each school district is required to publish a pupil records policy. Parents and students over the age of 18 must receive annual notification of this policy. The Act requires that each agency or institution establish procedures for granting access to school records within a reasonable period of time after the parental request. The reasonable period of time cannot exceed 45 days. The Act provides that “directory” information, such as date and place of birth, major field of study, participation in activities and sports, weight and height of members of athletic teams, dates of attendance, degrees and awards, and most recent educational institution attended by the student, may be released by the school district without written consent of parents. But the Act also provides the school district must give notice of what
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Family Educational Rights and Privacy Act
categories are included in directory information. After the public notice, a parent may inform the school “. . . that any or all of the information designated should not be released without the parent’s prior consent.” Parental consent is not required for release of education records to: (1) other school officials and/or teachers in the school system who have legitimate educational interests; (2) officials of other schools or school systems in which the student seeks to enroll upon the condition that the student’s parents are notified of the transfer of records, are given a copy, and have an opportunity to challenge the record; (3) authorized representatives of government including state education authorities; (4) financial aid officers in connection with a student’s application for financial aid; (5) state and local officials collecting information required by state statutes adopted before November 19, 1974; (6) organizations conducting studies for, or on behalf of, educational agencies if personal identification of students is destroyed after no longer needed for the study; (7) accrediting organizations; (8) parents of a dependent student as defined by statute; and (9) the Secretary of Education for the purpose of maintaining regulations pertaining to the health and welfare of the student. The policy of the school district must also accommodate other requirements of the Act including several “musts”: 1. Records of individual students containing “personally, identifiable information” must be kept confidential and cannot be released by the school without written consent of the parent or consent from the student if the student is over the age of 18. 2. Parents and guardians of students under age 18 and those students over 18 must have the right to inspect all school records concerning that student. 3. The school district record-keeping system must be described in sufficient detail for parents to locate their child’s records. 4. School district staff members with access to student records must be identified by title. 5. Each child’s file must include a record of access, which must be signed by each staff member whenever they withdraw that student’s file.
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6. Parents must have a right to appeal anything in a student’s file that is considered incorrect, and if the school is not willing to delete the challenged material, the parents may request a hearing and/or provide a written statement to be attached to the challenged material. In addition, treatment records “made or maintained by a physician, psychologist, or other recognized professional or paraprofessional acting in his or her professional capacity or assisting in a paraprofessional capacity” and used in the treatment of an eligible student may be excluded from the definition of “education records” in federal law and are not automatically accessible to the student. An exception to the FERPA is recognized for disclosures that are required by state statutes before enactment of the Act. Further, “personal notes” that are defined as “not education records” are exempted from parental access. Personal notes are notes kept by an individual, such as a guidance counselor, to “jog the memory” when the child is counseled at a later date. These personal notes are not accessible to other school staff members and are available only to substitutes of the original note writers. In an IDEA suit where parents claimed that the child was denied a free, appropriate education, one of the issues the parents claimed was that FERPA had been violated. The assertion was that the classroom teacher had destroyed personal notes about the child at the end of the year. The court said the “personal notes” did not constitute “educational records” under FERPA.63 “FERPA was adopted to address systematic, not individual, violations of students’ privacy by unauthorized releases of sensitive information in their educational records.” 64 “FERPA does not protect information which might appear in school records but would also be ‘known by members of the school community through conversation and personal contact.’ Congress could not have constitutionally prohibited comment on, or discussion of, facts about a student which were learned independently of his school records.” Frasca v. Andrews.65 See also Daniel S. v. Board of Education of York Community High School.66 According to the Fifth Circuit, under the federal statute, grades may only be challenged
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to ensure they are not inaccurate, mathematically incorrect, or do not reflect what the grader intended.67
PRIVATE DAMAGES The redress for a plaintiff claiming that a school district violated provisions of FERPA is limited to injunctive relief from the courts and the denial of federal funds to the school district. The question has also arisen as to whether a school district that had violated FERPA could be required by the courts to pay money damages to an aggrieved student or parent. In 2002, this question was answered in the negative by the U.S. Supreme Court in Gonzaga University v. Doe.68 The Court definitively held in Gonzaga69 that FERPA does not provide for a private right of action, damages, for a plaintiff who prevails against a school district that has violated provisions of the statute. With this determination the Court clearly decided the private damages question that it had side-stepped only a few months earlier in Owasso Independent School District v. Falvo.70 In seeking money damages for violation of a federal statute, a plaintiff must look to two sources for recovery. First, the language of the statute itself as enacted by Congress may specifically provide for damages for an aggrieved party who prevails in a suit under the law. Second, the successful plaintiff must tie violation of the statute to a damages remedy under § 1983 of the Civil Rights Act. The Supreme Court ruling in Gonzaga pointed out that for a federal statute to create private rights for damages it must do so explicitly. The plaintiff must look to the substance of the federal statute as to “whether Congress intended to create a federal right,” under either the statute directly or under § 1983. The Court further pointed out that statutes such as FERPA that are justified under the Spending (General Welfare) Clause cannot by implication give plaintiffs a private right to recover money damages. The Court’s recent decisions have clearly “rejected attempts to infer enforceable rights from the Spending Clause statutes whose language did not unambiguously confer such a right upon the Act’s beneficiaries.” In Gonzaga the Supreme Court determined after a careful reading of FERPA that a private right to damages was not conferred upon the plaintiffs who
prevail in cases where school districts have violated the Act. Thus, plaintiffs cannot gain damages from either (1) the language of the FERPA statute or (2) through application of § 1983. The only remedy that can be had by a prevailing plaintiff is the possible termination of federal funds that would in normal course flow to the offending school district. The Gonzaga case arose from an incident where administrators of Gonzaga University, a Catholic institution, overheard students discussing the alleged sexual misconduct of another student, one John Doe. Later when John Doe applied for his state teacher ’s certificate, the university declined to recommend him because of a lack of moral character. Doe sued the university for damages under FERPA and Section 1983 of the Civil Rights Act, 42 U.S.C. § 1983. As noted above, the Court held that FERPA does not create enforceable individual rights. Parents and students may complain to the U.S. Department of Education Family Policy Compliance Office (FPCO) regarding violations of the Act, but FERPA confers no direct private right of action to sue for damages. Chief Justice Rehnquist’s opinion for the Court, in Gonzaga, pointed out that the nondisclosure provisions of FERPA “fail to confer enforceable rights.” He said that the language of FERPA, unlike that of Title VI of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972, only denies federal funds to the college or school district for improper disclosure of a student’s records, and that such determination is to be made by the U.S. secretary of education and does not permit a private cause of action whereby a student or parent could bring an individual action for damages.
PARENTAL RIGHTS A natural parent has the right to review a student’s records unless prohibited by a court order such as a divorce decree. In a 2002 Second Circuit case where a natural mother claimed a right, under FERPA, to her child’s records, the parents were divorced and the court had given the father “the right to make all decisions regarding the child’s health and safety while in his care during the school year.”71 The court cited the implementing FERPA regulation that specifically addresses the question of non-custodian parent’s rights under the statute: “An educational
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Family Educational Rights and Privacy Act agency or institution shall give full rights under the Act to either parent, unless the agency or institution has been provided with evidence that there is a court order, State statute, or legally binding document relating to such matters as divorce, separation, or custody that specifically revokes these rights.” 34 C.F.R. § 99.4. In other words, the extent of [the parent’s] rights under FERPA must be determined with reference to the rights [the parent] retained under the decree. The divorce decree clearly states that all legal rights over education lie with the father. The decision to bring a FERPA hearing to challenge the content of [the student’s] records certainly falls within the authority given to the natural father to make educational determinations on behalf of [the student]. . . . It is not necessary, . . . for the custody decree to state explicitly that it revokes “FERPA rights,” nor recite the litany of all possible rights that have been abrogated. It is enough that the court determined that [the parent] no longer has authority to make decisions related to the education of her daughter. [The parent’s] right to seek a hearing to challenge the content of her daughter’s academic files has therefore been “specifically revoked” within the meaning of the regulation.72
POSTING OF GRADES It has been a traditional practice to post student grades on the school door or to list them in other ways. A school can release student grades and disclosure is not violated if the scores are scrambled and with names deleted because this protects the privacy of students as required under FERPA. A conflict developed in New York between parents’ rights to view public records under the state’s Freedom of Information Law, or public records act, and FERPA. The public records act required school districts to release public information, whereas FERPA requires that school districts keep individual, personal student information private except upon request of the student’s parent. This conflict was resolved by the definition of what is public as opposed to that which is private and personal. According to this decision, information that is not personally identifiable may be released under public records acts.73
STUDENT-GRADED WORK Can a teacher have students grade each other’s papers or does FERPA prohibit such classroom practices? The U.S. Supreme court answered this question in a unanimous decision in Owasso
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Independent School District v. Falvo, ruling that FERPA does not prohibit the practice of peer grading. 74 The Court reasoned that studentgraded work does not constitute an “education record” as material “maintained” by an educational institution or a person “acting for” the institution. The Court noted that student papers are not “maintained” by the institution and that students are not persons “acting for” the institution in maintaining educational records. The Court further pointed out that a contrary interpretation of FERPA “would impose substantial burdens on teachers across the country” in that it “would force all instructors to take time, which otherwise could be spent teaching and in preparation, to correct an assortment of daily student assignments.” The Court also narrowed the definition of “education records” to exclude student grades that had not yet been collected and recorded in the teacher’s grade book. The decision, however, left open the question as to whether the teacher ’s grade book itself constitutes an “education record” under FERPA. The Court did not decide whether a teacher’s practice of calling out student grades in class is an impermissible release of records in violation of the Act.
Students Scoring Other Students’ Papers Does Not Violate FERPA
Owasso Independent School District v. Falvo Supreme Court of the United States, 2002. 534 U.S. 426, 122 S. Ct. 934.
Justice KENNEDY delivered the opinion of the Court. Teachers sometimes ask students to score each other’s tests, papers, and assignments as the teacher explains the correct answers to the entire class. Respondent contends this practice, which the parties refer to as peer grading, violates the Family Educational Rights and Privacy Act of 1974 (FERPA or Act), 88 Stat. 571, 20 U.S.C. § 1232g. We took this case to resolve the issue.
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Under FERPA, schools and educational agencies receiving federal financial assistance must comply with certain conditions. . . . One condition specified in the Act is that sensitive information about students may not be released without parental consent. The Act states that federal funds are to be withheld from school districts that have “a policy or practice of permitting the release of education records (or personally identifiable information contained therein . . . ) of students without the written consent of their parents.” . . . The phrase “education records” is defined, under the Act, as “records, files, documents, and other materials” containing information directly related to a student, which “are maintained by an educational agency or institution or by a person acting for such agency or institution.” . . . The definition of education records contains an exception for “records of instructional, supervisory, and administrative personnel . . . which are in the sole possession of the maker thereof and which are not accessible or revealed to any other person except a substitute.” . . . The precise question for us is whether peer-graded classroom work and assignments are education records. Three of respondent Kristja J. Falvo’s children are enrolled in Owasso Independent School District No. I-011, in a suburb of Tulsa, Oklahoma. The children’s teachers, like many teachers in this country, use peer grading. In a typical case the students exchange papers with each other and score them according to the teacher ’s instructions, then return the work to the student who prepared it. The teacher may ask the students to report their own scores. In this case it appears the student could either call out the score or walk to the teacher’s desk and reveal it in confidence, though by that stage, of course, the score was known at least to the one other student who did the grading. Both the grading and the system of calling out the scores are in contention here. Respondent claimed the peer grading embarrassed her children. She asked the school district to adopt a uniform policy banning peer grading and requiring teachers either to grade assignments themselves or at least to forbid students from grading papers other than their own. The school district declined to do so, and respondent brought a class action . . . , against the school
district, Superintendent Dale Johnson, Assistant Superintendent Lynn Johnson, and Principal Rick Thomas (petitioners). Respondent alleged the school district’s grading policy violated FERPA and other laws not relevant here. The United States District Court for the Northern District of Oklahoma granted summary judgment in favor of the school district’s position. The court held that grades put on papers by another student are not, at that stage, records “maintained by an educational agency or institution or by a person acting for such agency or institution,” . . . and thus do not constitute “education records” under the Act. On this reasoning it ruled that peer grading does not violate FERPA. The Court of Appeals for the Tenth Circuit reversed. . . . Turning to the merits, the Court of Appeals held that peer grading violates the Act. The grades marked by students on each other’s work, it held, are education records protected by the statute, so the very act of grading was an impermissible release of the information to the student grader. . . . We granted certiorari to decide whether peer grading violates FERPA. . . . Finding no violation of the Act, we reverse. . . . The parties appear to agree that if an assignment becomes an education record the moment a peer grades it, then the grading, or at least the practice of asking students to call out their grades in class, would be an impermissible release of the records under § 1232g(b)(1). . . . Without deciding the point, we assume for the purposes of our analysis that they are correct. The parties disagree, however, whether peer-graded assignments constitute education records at all. The papers do contain information directly related to a student, but they are records under the Act only when and if they “are maintained by an educational agency or institution or by a person acting for such agency or institution.” . . . Petitioners, supported by the United States as amicus curiae, contend the definition covers only institutional records—namely, those materials retained in a permanent file as a matter of course. They argue that records “maintained by an educational agency or institution” generally would include final course grades, student grade point averages, standardized test scores, attendance records, counseling records, and records of disciplinary actions—but not student homework or classroom work. . . .
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Family Educational Rights and Privacy Act
Respondent, adopting the reasoning of the Court of Appeals, contends student-graded assignments fall within the definition of education records. That definition contains an exception for “records of instructional, supervisory, and administrative personnel . . . which are in the sole possession of the maker thereof and which are not accessible or revealed to any other person except a substitute.” . . . The Court of Appeals reasoned that if grade books are not education records, then it would have been unnecessary for Congress to enact the exception. Grade books and the grades within, the court concluded, are “maintained” by a teacher and so are covered by FERPA. . . . The court recognized that teachers do not maintain the grades on individual student assignments until they have recorded the result in the grade books. It reasoned, however, that if Congress forbids teachers to disclose students’ grades once written in a grade book, it makes no sense to permit the disclosure immediately beforehand. . . . The court thus held that student graders maintain the grades until they are reported to the teacher. . . . The Court of Appeals’ logic does not withstand scrutiny. Its interpretation, furthermore, would effect a drastic alteration of the existing allocation of responsibilities between States and the National Government in the operation of the Nation’s schools. We would hesitate before interpreting the statute to effect such a substantial change in the balance of federalism unless that is the manifest purpose of the legislation. This principle guides our decision. Two statutory indicators tell us that the Court of Appeals erred in concluding that an assignment satisfies the definition of education records as soon as it is graded by another student. First, the student papers are not, at that stage, “maintained” within the meaning of § 1232g(a)(4)(A). The ordinary meaning of the word “maintain” is “to keep in existence or continuance; preserve; retain.” Random House Dictionary of the English Language 1160 (2d ed. 1987). Even assuming the teacher’s grade book is an education record—a point the parties contest and one we do not decide here—the score on a student-graded assignment is not “contained therein,” . . . until the teacher records it. The teacher does not maintain the grade while students correct their peers’ assignments or call out their own marks. Nor do
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the student graders maintain the grades within the meaning of § 1232g(a)(4)(A). The word “maintain” suggests FERPA records will be kept in a filing cabinet in a records room at the school or on a permanent secure database, perhaps even after the student is no longer enrolled. The student graders only handle assignments for a few moments as the teacher calls out the answers. It is fanciful to say they maintain the papers in the same way the registrar maintains a student’s folder in a permanent file. The Court of Appeals was further mistaken in concluding that each student grader is “a person acting for” an educational institution for purposes of § 1232g(a)(4)(A). . . . The phrase “acting for” connotes agents of the school, such as teachers, administrators, and other school employees. Just as it does not accord with our usual understanding to say students are “acting for” an educational institution when they follow their teacher’s direction to take a quiz, it is equally awkward to say students are “acting for” an educational institution when they follow their teacher’s direction to score it. Correcting a classmate’s work can be as much a part of the assignment as taking the test itself. It is a way to teach material again in a new context, and it helps show students how to assist and respect fellow pupils. By explaining the answers to the class as the students correct the papers, the teacher not only reinforces the lesson but also discovers whether the students have understood the material and are ready to move on. We do not think FERPA prohibits these educational techniques. . . . Other sections of the statute support our interpretation. . . . FERPA, for example, requires educational institutions to “maintain a record, kept with the education records of each student.” . . . This record must list those who have requested access to a student’s education records and their reasons for doing so. . . . The record of access “shall be available only to parents, [and] to the school official and his assistants who are responsible for the custody of such records.” . . . Under the Court of Appeals’ broad interpretation of education records, every teacher would have an obligation to keep a separate record of access for each student’s assignments. Indeed, by that court’s logic, even students who grade their own papers would bear the burden of maintaining records of access until they turned in the
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assignments. We doubt Congress would have imposed such a weighty administrative burden on every teacher, and certainly it would not have extended the mandate to students. Also, FERPA requires “a record” of access for each pupil. This single record must be kept “with the education records.” This suggests Congress contemplated that education records would be kept in one place with a single record of access. By describing a “school official” and “his assistants” as the personnel responsible for the custody of the records, FERPA implies that education records are institutional records kept by a single central custodian, such as a registrar, not individual assignments handled by many student graders in their separate classrooms. Respondent’s construction of the term “education records” to cover student homework or classroom work would impose substantial burdens on teachers across the country. It would force all instructors to take time, which otherwise could be spent teaching and in preparation, to correct an assortment of daily student assignments. Respondent’s view would make it much more difficult for teachers to give students immediate guidance. The interpretation respondent urges would force teachers to abandon other customary practices, such as group grading of team assignments. Indeed, the logical consequences of respondent’s view are all but unbounded. At argument, counsel for respondent seemed to agree that if a teacher in any of the thousands of covered classrooms in the Nation puts a happy face, a gold star, or a disapproving remark on a classroom assignment, federal law does not allow other students to see it. . . . We doubt Congress meant to intervene in this drastic fashion with traditional state functions. Under the Court of Appeals’ interpretation of FERPA, the federal power would exercise minute control over specific teaching methods and instructional dynamics in classrooms throughout the country. The Congress is not likely to have mandated this result, and we do not interpret the statute to require it. For these reasons, even assuming a teacher’s grade book is an education record, the Court of Appeals erred, for in all events the grades on students’ papers would not be covered under FERPA at least until the teacher has collected them and recorded them in his or her grade
book. We limit our holding to this narrow point, and do not decide the broader question whether the grades on individual student assignments, once they are turned in to teachers, are protected by the Act. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.
CASE NOTES 1. Student Defined. The U.S. Court of Appeals for the Fifth Circuit in Tarka v. Franklin, cited in the previous note, has explained the meaning of the term student under FERPA: The statute itself defines “student” with the following statement: [T]he term “student” includes any person with respect to whom an educational agency or institution maintains education records or personally identifiable information, but does not include a person who has not been in attendance at such agency or institution. 20 U.S.C. § 1232g(a)(6).
Pursuant to the authority granted under subsection (c) of FERPA, the Secretary of Education has adopted regulations for implementing the Act. See [34] C.F.R. § 99.1, et seq. These regulations further define the term student in the following provision: “Student” (a) includes any individual with respect to whom an educational agency or institution maintains education records. (b) The term does not include an individual who has not been in attendance at an educational agency or institution. A person who has applied for admission to, but has never been in attendance at a component unit of an institution of postsecondary education (such as the various colleges or schools which comprise a university), even if that individual is or has been in attendance at another component unit of that institution of postsecondary education, is not considered to be a student with respect to the component to which an application for admission has been made. Tarka v. Franklin, 891 F.2d 102 (5th Cir. 1989).
2. Education Records Defined. The lack of a definition of “education records” initially caused much difficulty for school districts in interpreting and implementing FERPA. The Act was later amended to provide greater clarity.
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Family Educational Rights and Privacy Act
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A federal district court in New Hampshire explained the problem and the necessity of the amendment:
the congressional intent was to fashion a broad definition. Berlanger v. Nashua, New Hampshire, School District, 856 F. Supp. 40 (D.N.H. 1994).
When FERPA was initially enacted in August 1974, it did not define “education records” but provided a non-exclusive laundry list of records and documents which were to be made available to students and parents. “Juvenile records” were not included on this list. See Pub.L.No. 93-380, Title V, § 513(a), 88 Stat. 571, 572 (Aug. 21, 1974). Recognizing that the statute as enacted was causing confusion in the educational community, Congress passed the Buckley/Pell Amendment (the “Amendment”) in December 1974. The Amendment included the current definition of “education records.” The proposed amendments define “education records” in order to make clear what documents and other material parents and students will have access to. . . . [The] intent to be that, except as provided in the definition, parents and students should have access to everything in institutional records maintained for each student in the normal course of business and used by the institution in making decisions that affect the life of the student. 120 Cong. Rec. at 39858–39859.
3. A New York court has held that FERPA (20 U.S.C. § 1232g) implies that both parents have a right to inspect and review the education records of their children. The regulation implementing the Act “allow[s] inspection by either parent, without regard to custody, unless such access is barred by state law, court order or legally binding instrument.” Thus, a natural father, living apart from the child under terms of a separation agreement, has a right to inspect his child’s records despite the fact that the mother had signed a statement indicating that she did not wish or authorize the school district to transmit school records to the father. The court said:
In the Joint Statement the sponsors explained that this definition is a key element in the amendment. An individual should be able to know, review, and challenge all information—with certain limited exceptions—that an institution keeps on him, particularly when the institution may make important decisions affecting his future. . . . This is especially true when the individual is a minor. Parents need access to such information in order to protect the interest of their child. 120 Cong. Rec. 39858, 39862.
The sponsors further stated, The amendment . . . is intended . . . to open the bases on which decisions are made to more scrutiny by the students, or their parents about whom decisions are being made, and to give them the opportunity to challenge and to correct—or at least, enter an explanatory statement—inaccurate, misleading, or inappropriate information about them which may be in their files and which may contribute, or have contributed to, an important decision made about them by the institution. The change from the laundry list of items to the definition of “education records” as it appears today, along with the legislative history of the Amendment, lends support to the conclusion that
It is beyond cavil that a non-custodial parent has not “abandoned” his child simply by reason of noncustody and, . . . while legal custody may be in one or both of the parents, the fact that it is placed in one does not necessarily terminate the role of the other as a psychological guardian and preceptor. Matter of Unido R., 109 Misc. 2d 1031, 441 N.Y.S.2d 325 (1981).
4. FERPA does not give a student the right to bring an action challenging a professor ’s grading process. Under the law, “[s]tudents’ grades, as reflected in educational records, can only be inaccurate or misleading if they do not reflect what the grader intended or if they are mathematically incorrect.” The U.S. Court of Appeals, Fifth Circuit, has said that the provision in the Act referring to “other rights of students,” 20 U.S.C.A. § 1232g(a)(2), cannot be construed as congressional intent to “afford students a federal right, enforced by federal regulations, to challenge their teachers’ or educational institutions’ grading process.” Tarka v. Cunningham, 917 F.2d 890 (5th Cir. 1990). 5. Student Privacy Generally. In addition to FERPA, the Congress has also passed the Protection of Pupil Rights Amendment (PPRA): 20 U.S.C. § 1232h. Thus, student’s privacy is protected by FERPA, PPRA, and the Constitution. The PPRA currently provides, in pertinent part: [n]o student shall be required, as part of any applicable program, to submit to a survey, analysis or evaluation that reveals information concerning
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(1) political affiliations or beliefs of the student or the student’s parent; (2) mental or psychological problems of the student or the student’s family; (3) sex behavior or attitudes; (4) illegal, anti-social, self-incriminating and demeaning behavior; (5) critical appraisals of other individuals with whom respondents have close family relationships; (6) legally recognized privileged or analogous relationship, such as those of lawyers, physicians, and ministers; (7) religious practices, affiliations, or beliefs of the student or beliefs of the student’s parents; or (8) income (other than that required by law to determine eligibility for participation in a program of for receiving financial assistance under such program), without the prior consent of the student . . . or in the case of an unemancipated minor, without the prior written consent of the parent. 20 U.S.C. § 1232h(b).
Following Gonzaga University v. Doe, 536 U.S. 273, 122 S. Ct. 2268 (2002), discussed previously in this chapter, where the Supreme Court held that FERPA bestows no private right of action on parents or students, the U.S. Court of Appeals, in C. N. v. Ridgewood Board of Education, observed that the parties in that case interpreted Gonzaga to also mean that there was no private right of action under PPRA. That, of course, means that individuals cannot sue for damages under the statute. 430 F.3d 159 (3rd Cir. 2005). 6. Privacy of students and parents is not violated by a survey that is confidential, anonymous, and is compiled in aggregate with no identification of individuals. An anonymous survey taken by all middle and high school students regarding their private lives, with results compiled in anonymous and aggregate form, does not violate the constitutional rights of the students or parents. Where a school board selected a survey, in a post-Columbine attempt to understand the forces of stress on youth, and administered it throughout the school district, containing questions about drugs, sex, student life, and culture, students and parents sued the school district claiming invasion of constitutionally protected privacy. The school superintendent had contacted all parents informing them of the survey and assuring them that it was voluntary and anonymous. Directions to the teachers administering the survey were: “Students should be informed that the survey is anonymous and
voluntary. If a student elects not to complete the survey, he/she should hand in the blank copy.” Plaintiffs were unable to prove that the survey was not anonymous and voluntary. The court in holding for the school district noted that, regardless of whether the instrument had been administered as involuntary, there was no violation of the right of privacy or the First Amendment right against compelled speech. In addressing the issue of privacy, the court provided an excellent summation of the meaning of privacy under the Constitution, the court pointed out that there were two types of constitutional privacy, it said: The United States Constitution does not mention an explicit right to privacy and the United States Supreme Court has never proclaimed that such a generalized right exists. The Supreme Court has, however, found certain “zones of privacy” in the amendments to the Constitution, see Roe v. Wade, 410 U.S. 113, 152–153, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973) and from these zones has specified that the constitutional right to privacy “protects two types of privacy interest: ‘One is the individual interest in avoiding disclosure of personal matters, and another is the interest in independence in making certain kinds of important decisions.’ ” Whalen v. Roe, 429 U.S. 589, 599–600, 97 S. Ct. 869, 51 L. Ed. 2d 64 (1977).
With regard to the disclosure of personal matters, the court said: The following factors should be considered: “the type of record requested, the information it does or might contain, the potential for harm in any subsequent nonconsensual disclosure, the injury from disclosure to the relationship in which the record was generated, the adequacy of safeguards to prevent unauthorized disclosure, the degree of need for access, and whether there is an express statutory mandate, articulated public policy, or other recognizable public interest militating toward access.”
The court, however, pointed out that the right to avoid disclosure of personal matters is not absolute. Public health or like public concerns may justify access to information an individual may desire to remain confidential. “Disclosure may be required if the government interest in disclosure outweighs the individual’s privacy interest. As we explained in Westinghouse Electric, in order to decide
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Summation of Case Law
whether an intrusion into an individual’s privacy is justified, we must engage in the delicate task of weighing competing interests.” A balancing test of the interests is therefore required, the interests of individuals against the interests of the state or public school. In holding for the school district the court concluded: “that the survey was administered as anonymous. The survey did not ask students to identify themselves by name or address. While the survey did seek some statistical information that could conceivably be used to trace a student’s identity, the record reflects confidentiality in the administration, collection and storage of the surveys prior to submission to Search Institute for tabulation of results. Once tabulated, the surveys were destroyed. The information, moreover, while publicly disclosed, was revealed only in the aggregate, in a format that did not permit individual identification.” C. N. v. Ridgewood Board of Education, 430 F.3d 159 (3rd Cir. 2005).
7. Both the No Child Left Behind Act of 2001 and the National Defense Authorization Act for fiscal year 2002 “. . . require high schools to provide military recruiters, upon request, access to secondary school students and directory information on those students.” Even if the Local Education Agency (LEA) does not disclose “directory information” under FERPA, which currently under FERPA is a LEA prerogative, it must still provide military recruiters access to secondary school student names, addresses, and telephone listings. Parents must be given the opportunity to opt out of providing directory information by the LEA. This information will be used specifically for armed service recruiting and informing students of scholarship opportunities. Letter signed by Rod Paige, Secretary of Education, and Donald H. Rumsfeld, Secretary of Defense, October 9, 2002.
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Summation of Case Law
Elements of Defamation 1. The following elements must be proven to prevail on a claim of defamation: (1) defamatory words; (2) publication; (3) falsity; (4) malice,
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actual or implied; and (5) resulting injury. In a defamation case, the cause of action fails if the plaintiff fails to prove even one of the elements. 2. Generally, a communication is “defamatory” if it tends to harm the reputation of another so as to lower the person in the estimation of the community, to deter others from associating or dealing with the person, or otherwise exposes a person to contempt or ridicule. 3. In a defamation case, the test for determination of whether a statement is fact or opinion is whether ordinary persons hearing or reading the matter complained of would be likely to understand it as an expression of the speaker’s or writer’s opinion, or as a statement of existing fact. 4. An expression of opinion is actionable in a defamation case only if it implies the existence of underlying facts ascertainable by a reasonable person with some degree of certainty and the implied factual assertions are false, defamatory, made with actual malice, and concerns another. Qualified or Conditional Privilege 1. A privilege is “conditional” or “qualified” because of requirements that declaration be reasonably calculated to accomplish the privileged purpose and that it be made without malice. 2. A public school official who expresses an opinion as to qualifications of person who has submitted application for employment as a school teacher has benefit of conditional privilege. 3. Public policy requires that malice not be imputed in libel action against a former employer who answers a request for appraisal of prospective employee’s qualifications, for otherwise one who enjoys a conditional privilege might be reluctant to give a sincere, yet critical, response. 4. Available defenses against action in defamation are privilege and truth. 5. A qualified privilege exists as to communication, even if false, between parties sharing an interest or duty. However, to be a good defense, such a communication must be made in good faith and without malice.
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Chapter 13
Defamation and Student Records
Public Figure or Official
FERPA
1. Where a statement of “opinion” on matter of public concern reasonably implies false and defamatory facts regarding public figures or officials, those individuals must show that such statements were made with knowledge of their false implications or with reckless disregard of truth in order to recover. 2. Where a statement of “opinion” on a matter of public concern reasonably implies false and defamatory facts involving private figure, the plaintiff must show that false implications were made with some level of fault to support recovery. 3. A public school teacher is not a “public official” under New York Times standard, and is not required to provide New York Times “actual” malice before she can recover compensatory damages in a defamation action against a newspaper publisher and a reporter with regard to a newspaper article concerning her teaching. 4. Where evidence is sufficient to support a finding that a newspaper reporter is negligent in preparation of an article concerning a public school teacher, the reporter and the publisher may be liable for the reporter ’s negligent performance under principles of respondeat superior (the master is liable for the torts of his servant). 5. Criteria to be considered in determining whether defamation plaintiff is public official include whether the plaintiff performs governmental duties directly related to a public interest, whether the plaintiff holds a position of influence in resolution of public issues, and whether the plaintiff has, or appears to the public to have, substantial responsibility for or control over conduct of government affairs. 6. Public elementary school principal is a “public official” required to show actual malice in order to recover damages for defamatory publications criticizing her official conduct. The fact that the principal appears to have responsibility over conduct of education at a school is sufficient to trigger the public official standards, even if the principal did not actually exercise the power the public perceived her to possess.
1. A student assignment paper does not satisfy the definition of “education records” within the Family Educational Rights and Privacy Act (FERPA). When a student paper is peergraded by another student, so that FERPA is not violated by such grading or by calling out the scores, the student papers are not, at that stage, “maintained” within the meaning of FERPA. Each student grader is not “a person acting for” an educational institution. 2. Within the Family Educational Rights and Privacy Act (FERPA), which defines “education records” as records containing information directly related to a student which “are maintained by an educational agency or institution or by a person acting for such agency or institution,” the word maintained suggests FERPA records will be kept in a filing cabinet in a records room at the school or on a permanent secure database. They will be kept there, perhaps, even after the student is no longer enrolled. The phrase “acting for” in the Act connotes agents of the school, such as teachers, administrators, and other school employees. 3. Even if students are acting for the teacher when they correct another student’s paper, that is different from saying they are acting for the educational institution in maintaining a record of the student’s paper, as required for the records to be “education records” as defined by FERPA. 4. FERPA implies that “education records” are institutional records kept by a single central custodian, such as a registrar, not as individual student papers handled by student graders in their separate classrooms.
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Research Aids
Research citations below are abbreviated as: American Law Reports (A.L.R.), American Jurisprudence (Am.Jur.), Corpus Juris Secundum (C.J.S.), and McQuillen Municipal Corporations (McQuillen Mun.Corp.). Explanations for each of these sources of law are found in Chapter 1 of this text. Also, see Appendix B of this book. 50 Am.Jur.2d Libel and Slander § 160, Civil Liability for Defamation of Persons.
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Endnotes
42 Am.Jur.2d Injunctions § 97, Torts: Libelous, Slanderous, or False Statements—Defamation of the Person. 50 Am.Jur.2d Libel and Slander § 261, Effect of Malice: Showing Necessary to Defeat Privilege. 53 A.L.R.2d 8, Libel and Slander: Actionability of Statement Imputing Incapacity, Inefficiency, Misconduct, Fraud, Dishonesty, or the Like, to Public Officer or Employee. 50 Am.Jur.2d Libel and Slander § 502, Criminal Defamation of Persons: Defamation May Be a Crime as Well as Civil Wrong. 19 A.L.R.5th 1, Who Is a “Public Figure” for Purposes of Defamation? 62 Am.Jur.2d Privacy § 155, Distinction between Public and Private Figures. 20 A.L.R.3d 988, Libel and Slander: What Constitutes Actual Malice, within Federal Constitutional Rule Requiring Public Officials and Public Figures to Show Actual Malice. 112 A.L.R. Fed. 1, Validity, Construction, and Application of Family Educational Rights and Privacy Act of 1974 (FERPA) (20 U.S.C.A. § 1232g). 67B Am.Jur. Schools § 359, Federal Assistance and Mandates: Family Educational and Privacy Rights. Law Reviews Katrina Chapman, “A Preventable Tragedy at Virginia Tech: Why Confusion Over FERPA’S Provisions Prevents Schools from Addressing Student Violence,” 18 B.U. Pub. Int. L.J. 349, Spring 2009. Daniel J. Solove and Neil M. Richards, “Rethinking Free Speech and Civil Liability,” 109 Colum. L. Rev. 1650, November 2009. John G. Long, “High Standards for High School Athletes: Defamation Law and Tomorrow’s Stars, 16 Sports Law. J. 255, Spring 2009. Lynn M. Daggett, “FERPA in the 21st Century: Failure to Effectively Regulate Privacy for all Students,” 58 Cath. U. L. Rev. 59, Fall 2008.
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Endnotes
1. Theodore F. T. Plucknett, A Concise History of the Common Law, 5th ed. (Boston: Little, Brown, 1956). 2. III Edgar, 4 (C.946–C.961), cited in Plucknett, Ibid., p. 983. 3. Borough Customs (Selden Society), i. 78; Plucknett, Ibid., p. 483.
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4. Plucknett, Ibid., p. 484. 5. Ibid., p. 485. 6. Ibid., p. 486. 7. Ibid., p. 487. 8. King v. Lake, 1670; see Plucknett, Ibid., p. 497. 9. Restatement (Second) of Torts, Vol. 3 (St. Paul, Minn.: American Law Institute Publishers, 1977), § 558, p. 156. 10. W. Page Keeton, Dan B. Dobbs, Robert E. Keeton, and David G. Owen, Prosser and Keeton on Torts, 5th ed. (St. Paul, Minn.: West, 1984), p. 773. 11. Restatement (Second) of Torts, § 568, pp. 177–78. 12. 50 American Jurisprudence 2d, 516. 13. Restatement (Second) of Torts, § 568A, p. 182. 14. Ibid. 15. Restatement (Second) of Torts, §§ 568–69, pp. 182–83 16. Ramirez v. Rogers, 540 A.2d 475 (Me. 1988). 17. Kern Alexander and M. David Alexander, The Law of Schools, Students and Teachers in a Nutshell (St. Paul, Minn.: West, 2003), pp. 345–347. 18. Ibid. 19. Ibid. § 596; see also 12 A.L.R. 147; 50 A.L.R. 339 20. Barton v. Rogers, 21 Idaho 609, 123 P. 478 (1912). 21. Dawkins v. Billingsley, 69 Okla. 259, 172 P. 69 (1918). 22. William L. Prosser, Law of Torts (St. Paul, Minn.: West, 1971), p. 609. 23. Coffin v. Coffin, 4 Mass. 1, 3 Am. Dec. 189 (1808). 24. Morrison v. Mobile County Board of Education, 495 So.2d 1086 (Ala. 1986). 25. De Bolt v. McBrien, 96 Neb. 237, 147 N.W. 462 (1914). 26. Williams v. School District of Springfield R-12, 447 S.W.2d 256 (Mo. 1969). 27. True v. Ladner, 513 A.2d 257 (Me. 1986). 28. Smith v. Helbraun, 21 A.D.2d 830, 251 N.Y.S.2d 533 (N.Y. App. Div. 1964). 29. Marchioni v. Board of Education of the City of Chicago, 2003 WL 21418238 (U.S. Northern District, Ill. 2003). 30. Geick v. Kay, 177 Ill. Dec. 340, 603 N.E.2d 121 (Ill. App. Ct. 1992). 31. Blair v. Walker, 64 Ill. 2d 1, 349 N.E.2d 385 (Ill. 1976). 32. Chapman v. Furlough, 334 So.2d 293 (Fla. Dist. Ct. App. 1976). 33. Malone v. Carrico, 16 Ky. L. Rptr. 155 (Ky. 1894). 34. 34. Hoover v. Jordan, 27 Colo. App. 515, 150 P. 333 (1915); see also 40 A.L.R.3d 490. 35. Ottinger v. Ferrell, 171 Ark. 1085, 287 S.W. 391 (1926). 36. 50 Am.Jur. Libel and Slander § 5 (2010). 37. Baskett v. Crossfield, 190 Ky. 751, 228 S.W. 673 (1921). 38. Restatement (Second) of Torts, § 581A, p. 235. 39. Oscar Handlin and Lillian Handlin, Liberty and Power 1600–1760, Vol. 1 (New York: Harper and Row), p. 225. 40. Keeton et al., op. cit., p. 804. 41. Ibid. 42. New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710 (1964). 43. Harry Kalven Jr., A Worthy Tradition: Freedom of Speech in America (New York: Harper and Row, 1988), pp. 60–61. 44. Ibid., pp. 70–71. 45. Ibid. 46. Rosenblatt v. Baer, 383 U.S. 75, 86 S. Ct. 669 (1966). 47. Ibid., 383 U.S. at 85, 86 S. Ct. at 676.
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48. Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S. Ct. 1975 (1967). 49. Hutchinson v. Proxmire, 443 U.S. 111, 99 S. Ct. 2675 (1979), quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S. Ct. 2997 (1974); see also True v. Ladner, 513 A.2d 257 (Me. 1986). 50. Hutchinson v. Proxmire, Ibid. 51. Rosenblatt v. Baer, op. cit. 52. Gertz v. Robert Welch, Inc., op. cit. 53. Keeton et al., op. cit., p. 806. 54. See Nodar v. Galbreath, 462 So.2d 803 (Fla. 1984); True v. Ladner, 513 A.2d 257 (Me. 1986). 55. Gertz v. Robert Welch, Inc., op. cit. 56. Solow v. General Motors Truck Co., 64 F.2d 105 (2nd Cir. 1933). 57. Hoff v. Pure Oil Co., 147 Minn. 195, 179 N.W. 891 (Minn. 1920). 58. Education Amendment of 1974, Public Law 93-380, 20 U.S.C. § 1232g (sometimes referred to as the Buckley Amendment). See Appendix B. 59. 20 U.S.C. § 1232h (1978). 60. 20 U.S.C. § 1415(b)(1)(A) (1975). 61. This part on FERPA taken largely from Kern Alexander and M. David Alexander, The Law of Schools, Students, and Teachers (St. Paul, Minn., Thomson/West, 2003), pp. 334–343. 62. Van Allen v. McCleary, 27 Misc. 2d 81, 211 N.Y.S.2d 501 (N.Y. Sup. Ct. 1961).
63. J.P. v. West Clark Community Schools, 230 F. Supp. 2d 910 (S.D. Ind. 2002). 64. Jensen v. Reeves, 45 F. Supp. 2d 1265, 1276 (D. Utah 1999). 65. Frasca v. Andrews, 463 F. Supp. 1043, 1050 (E.D.N.Y. 1979). 66. Daniel S. v. Board of Education of York Community High School, 152 F. Supp. 2d 949 (N.D. Ill. 2001). 67. Tarka v. Cunningham, 917 F.2d 890 (5th Cir. 1990). 68. Gonzaga University v. Doe, 536 U.S. 273, 122 S. Ct. 2268 (2002). 69. Gonzaga University v. Doe, 536 U.S. 273, 122 S. Ct. 2268 (June 20, 2002). 70. Owasso Independent School District v. Falvo, 534 U.S. 426, 122 S. Ct. 934 (February 19, 2002). 71. Taylor v. Vermont Department of Education, 313 F.3d 768 (2nd Cir. 2002). 72. Ibid. 73. Kryston v. Board of Education, East Ramapo Central School District, 77 A.D.2d 876, 430 N.Y.S.2d 688 (N.Y. App. Div. 1980). 74. Owasso Independent School District v. Falvo, op. cit.
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Quoted Box Citation
Qualified Privilege. 50 Am.Jur.2d Libel and Slander § 258.
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CHAPTER 14
School District Liability A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends. —Oliver Wendell Holmes Jr.
CHAPTER OUTLINE ■
INTRODUCTION
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SOVEREIGN IMMUNITY
Official Negligence Under Section 1983 Individual Liability Under Section 1983
State-Agent Immunity ■
ABROGATION OF IMMUNITY
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DISCRETIONARY FUNCTIONS
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INSURANCE WAIVER OF IMMUNITY
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PROPRIETARY FUNCTIONS
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LICENSEES AND INVITEES
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NUISANCE
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ATTRACTIVE NUISANCE
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SECTION 1983, CIVIL RIGHTS ACT LIABILITY
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CONSTITUTIONAL TORTS: DELIBERATE INDIFFERENCE AND STATE-CREATED DANGER
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ELEVENTH AMENDMENT IMMUNITY AND LOCAL SCHOOL DISTRICTS
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SUMMATION OF CASE LAW
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RESEARCH AIDS
“Persons” Under the Act School Board Liability Under Section 1983
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Introduction
All sovereign governments have the inherent prerogative to protect themselves from liability. This power of the state has been exercised by differing means and in varying degrees, ranging from erecting virtually impenetrable shields to near total abrogation of immunity. Although the
common law defines the nature and extent of immunity generally, statutory law may change and modify it as legislatures see fit. The extent of the legal variations in this area is almost limitless, as evidenced by the precedents among the 50 states. Immunity is further complicated by the interaction of the states with the central government in our federal system. Because of the uncertainty of
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the prerogatives of government in the federal system, the Eleventh Amendment of the U.S. Constitution was enacted to define the limitations of federal power on states as well as the boundaries of liability between citizens and states. This chapter discusses both the common law and the statutory precedents regarding aspects of governmental immunity. Considerable attention is given to the Eleventh Amendment as it affects the state and local educational agencies.
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Sovereign Immunity
School districts, as agencies of the state, have historically been immune from tort liability. As a general rule, common law asserts that government is inherently immune unless the legislature specifically abrogates the privilege. The immunity concept evolved to this country from England, where the king could, theoretically, do no wrong. Various legal scholars maintain the concept was a product of the Dark Ages, when custom established that the lord of the fief was also the lawmaker and judge. As such, the lord was solely responsible for all laws and justice, and since he made and implemented the laws, he could not be sued without his permission.1 As the feudal era drew to a close and fiefdoms became consolidated into larger governmental units, immunity became enmeshed with the “divine right of kings,” placing the king in a superior and preferred legal position.2 Sovereign immunity became formalized in English law at least as early as the thirteenth century, at which time the king could not be sued in his own courts.3 Sovereign immunity apparently reached its zenith in fifteenth-century England, where it stabilized as a prerogative of the monarch. Judicial recognition of this power was taken when an English court held in 1607 that the king was not liable for damages to private property caused by the government’s digging for saltpeter that was to be used in the manufacture of gunpowder.4 In spite of his judicial sanction affirming sovereign immunity, the great jurist Coke held in the same year that the king could not sit as a judge in his own case.5 Effectively, this began the whittling away of sovereign immunity. This process would culminate over 250 years later in 1866, when the House of Lords held that a public entity is liable for the damages caused by acts of
its employees.6 Later, this rationale was applied to schools in England when a court held that if negligence occurred resulting in student injury, either the teacher or the school could be liable.7 The sovereign immunity doctrine may have been transported across the Atlantic to the United States directly under the precedent of Russell v. The Men Dwelling in the County of Devon,8 as relied upon by a Massachusetts court in Mower v. The Inhabitants of Leicester in 1812.9 It is unlikely, however, that the concept traversed the Atlantic through a single precedent, especially since the Russell court attributed its holding of nonliability to: (1) the lack of a public treasury; (2) general judicial apprehension that imposing liability would encourage a flow of such actions; (3) the belief that public inconvenience should be avoided; and (4) the fact that no legislation existed imposing such liability. No direct judicial notice was taken of the Crown Prerogative, or the “king can do no wrong” doctrine. It seems more likely that sovereign immunity came to be commonly accepted in this country through the use of English legal books and materials such as Blackstone’s Commentaries, which were used as standard references by early lawyers and judges. Also, of course, many of the notable early American jurists received their legal training in the Inns of Court in London. Regardless of its origin, however, the U.S. Supreme Court and state courts adopted the principle that the sovereign could not be sued without its permission. The Supreme Court in 1869 commented that “[i]t is a familiar doctrine of the common law, that the sovereign cannot be sued in his own courts without his consent.”10 In another case in the same year, the Court stated that “[e]very government has an inherent right to protect itself against suits. . . . The principle is fundamental [and] applies to every sovereign power.”11 The federal government abrogated immunity to a statutorily prescribed extent in the Federal Tort Claims Act of 1946. With regard to tort immunity of public schools themselves, some courts have enunciated the overriding reasoning that desirable public policy dictates immunity. The American Law Reports summarized the public policy rationale as follows: The tort immunity of governmental agencies in their operation of schools has also been supported on public policy grounds, the courts having taken
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Sovereign Immunity the position that public education is for the benefit of all, that the welfare of the few must be sacrificed in the public interest, and that school funds and property may not be diverted to pay private damages, since such diversion may impair public education.12
Beginning at the point of nearly universal adherence to the immunity doctrine, some state courts have moved away from the doctrine. Most significant is the Molitor case, which abolished immunity in Illinois and directly refuted the legal rationale that supported sovereign immunity.13 In Muskopf, the California Supreme Court observed the trend away from immunity: Only the vestigial remains of such governmental immunity have survived; its requiem has long been foreshadowed. For years the process of erosion of governmental immunity has gone on unabated. The Legislature has contributed mightily to that erosion. The courts, by distinction and extension, have removed much of the force of the rule. Thus, in holding that the doctrine of governmental immunity for torts for which its agents are liable has no place in our law, we make no startling break with the past but merely take the final step that carries to its conclusion an established legislative and judicial trend.14
Since Molitor, sovereign immunity has been in a state of considerable change. Some state courts have abrogated immunity only to have it reinstated by the legislatures, whereas other courts have approached the issue in a piecemeal way by creating exceptions for proprietary functions or nuisances, or different standards for licensees and invitees. Several courts have dissected the school program, abolishing immunity for transportation injuries, while maintaining it for the regular school program. Also, a trend exists for courts to sanction a consensual waiver of immunity by school boards through the acquisition of liability insurance. Yet, in spite of the many exceptions, for various reasons the general rule prevails that the state and its agencies are immune from tort liability, such immunity being grounded on the sovereign character of the state.15 Thus, school districts, school boards, and other similar local governmental agencies whose responsibility it is to operate public schools have generally been held to be immune from tort liability, either for their own torts or for those of their agents,
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officers, or employees, while engaged in school functions of a governmental nature. This rule prevails in the absence of abrogation by a state legislative body or by a state court, as in Molitor.
Court Will Defer to the Legislative Authority in Statutorily Establishing Governmental Immunity
Richardson v. Rankin County School District Supreme Court of Mississippi, 1989. 540 So.2d 5.
PRATHER, Justice, for the Court. This appeal revisits the doctrine of governmental immunity abandoned by this Court in Pruett v. City of Rosedale, 421 So.2d 1046 (Miss. 1982), and seeks total and final abandonment of such doctrine again by this Court. Plaintiff Alma Jane Richardson suffered personal injury in an accident between her vehicle and a Rankin County school bus driven by Darlene Collier. . . . Richardson filed her complaint alleging that on May 1, 1986, she was injured as a result of a collision involving her automobile and a school bus owned by the Rankin County School District and being operated by its employee, Darlene Collier. Richardson bases her theory of liability upon the statutory liability of the Rankin County School District, et al., as provided under Miss. Code Ann. § 37-41-37, et seq. (1986 Supp.) and upon the theory of negligence. . . . On March 31, 1987, all of the defendants filed their answer setting forth their defenses, including the defense that the defendants are immune from liability under the theory of sovereign or governmental immunity and denying all material allegations of the complaint and denying that Richardson is entitled to recover any sums whatsoever. . . . The question of whether or not the doctrine of governmental or sovereign immunity should be totally abolished has come before this Court on a number of occasions. Finally, in Pruett v.
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City of Rosedale, 421 So.2d 1046 (Miss. 1982), this Court recognized that the doctrine of sovereign immunity was a creature of the judiciary, and it was time for the judiciary to abolish it. The Court recognized, however, that it was the legislature, not the judiciary, that had the duty and responsibility of controlling and policing sovereign immunity. [T]he control and policing of sovereign immunity is a legislative responsibility and not that of the judiciary. The sovereign immunity doctrine is a creature of the judiciary. . . . As has been said by many of the State’s highest courts, the judicial branch is leaving the matter to the legislative branch. It was judicially created and necessarily should be judicially abrogated.
Pruett made clear that the immunity that was being abolished was the immunity of the sovereign, which means the state, the county, the municipality or any other local subdivision of the sovereign. This Court expressly noted that the abolition of sovereign immunity did not “apply to legislative, judicial and executive acts by individuals acting in their official capacity, or to similar capacities in local governments, either county or municipal.” . . . The legislature, in response to the Pruett decision, enacted what is now codified as Miss. Code Ann. § 11-46-1, et seq. (1988 Supp.) (1984 Immunity Act). The intent of the legislature is clear. Section 11-46-3, Miss. Code Ann. (1988 Supp.) states: The Legislature of the State of Mississippi finds and determines as a matter of public policy and does hereby declare that from and after July 1, 1989, the “state” and, from and after October 1, 1989, its “political subdivisions,” as such terms are defined in Section 11-46-1, shall not be liable and shall be immune from suit at law or in equity on account of any wrongful or tortious act or omission, including libel, slander or defamation, by the state or its political subdivisions, or any such act or omission by any employee of the state or its political subdivisions, notwithstanding that any such act or omission constitutes or may be considered as the exercise or failure to exercise any duty, obligation or function of a governmental, proprietary, discretionary or ministerial nature and notwithstanding that such act or omission may or may not arise out of any activity, transaction or service for which any fee, charge, cost or other consideration was received or expected to be received in exchange therefore.
The Immunity Act grants general legislative immunity to the State and its political subdivisions, including local school districts. It also waives such immunity of the State and its political subdivisions from claims for money damages arising out of the torts of such governmental entities and the torts of their employees while acting within the course and scope of their employment. Such immunity is waived only to the extent of the maximum amount of liability as provided under the provisions of the above quoted statutes. Miss. Code Ann. § 11-46-15 (1988 Supp.) provides the limits of liability of a governmental entity of its employee. . . . Thus, it is clear from the above statute that the Mississippi Legislature has, by appropriate legislation, given the state and its political subdivisions immunity from suit on account of any wrongful or tortious act or omission by any employee of the state or its political subdivisions, except as to the extent of liability permitted by statute. There is no challenge to the constitutionality of the statute itself, only a request that this Court finally abolish governmental immunity. This request infringes upon the policy-making authority of the legislature, and this Court refrains from infringing upon this legislative prerogative. The trial court did not err in granting the Motion for Partial Summary Judgment below, and should, therefore, be affirmed. Affirmed.
CASE NOTES 1. Within constitutional limitations, the legislature is empowered to control the extent of liability to which the state and its agencies may be subjected. Bego v. Gordon, 407 N.W.2d 801, 808 (S.D. 1987). 2. A state may have sovereign immunity at common law, but a statute may provide for specific exceptions. One such exception to the general governmental immunity rule is for “injury caused by the negligent act of . . . an employee acting within the scope of his official duties.” Where a student’s finger was severed when his shirttail caught in a scroll power saw while he was cleaning it, and the facts showed that on previous occasions the shop teacher had turned off the main power
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Sovereign Immunity
switch but failed to do so this time, the court held the school district liable for damages. Cureton v. Philadelphia School District, 798 A.2d 279 (Pa. 2002).
STATE-AGENT IMMUNITY In most tort actions against public schools, plaintiffs will not only name the school board as the defendant, but will also name the school superintendent, the school principal, and possibly a teacher or two, and probably other personnel, “individually.” The plaintiff’s strategy is to have the possibility of recovery of damages against the individual employees if the suit against the school board fails. However, school personnel who individually act for the school district are also normally covered by what some courts call state-agent immunity. That is, school personnel, as “agents” acting for the school district, come under the umbrella of governmental immunity so long as the school personnel do not incur harm by exceeding their discretionary authority or fail to perform a ministerial function. The Supreme Court of Alabama,16 2007, has explained in detail the parameters of “state-agent immunity”: A State agent shall be immune from civil liability in his or her personal capacity when the conduct made, the basis of the claim against the agent, is based upon the agent’s: (1) formulating plans, policies or designs; or (2) exercising his or her judgment in the administration of a department or agency, including but not limited to: (a) making administrative adjudications; (b) allocating resources; (c) negotiating contracts; (d) hiring, firing, transferring, assigning or supervising personnel; or (3) discharging duties imposed by rules and regulations . . .” of the school district, i.e., “educating students.” A state agent shall not be immune from civil liability personally when acting willfully, maliciously, fraudulently in bad faith beyond his or her authority, or under a mistaken interpretation of law or contrary to the constitution and statutes of the state or the United States.17
The court applied this rationale to the factual circumstances where school officials erroneously allowed an elementary school girl to leave the school with an older boy and she was sexually assaulted. The court allowed immunity to extend to the school officials who had discovered the mistake in releasing the girl and had
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pursued the attacker.18 In another example of the extension of governmental immunity to a school official, an elementary school principal was found to have immunity from personal damages when she failed to identify and correct a physical plant situation where scalding water was released from a boiler pipe and an elementary school child stepped into a hole containing the water and was severely burned. The court explained: Whatever her (the principal) action might have been, any decision she might have made was related to the performance of her duties as principal and called for personal deliberation(s), decision(s) and judgment(s) in performance of her job. Thus, in making that decision she was engaged in the performance of discretionary functions for which she possessed constitutional immunity.19
The Kentucky Supreme Court in Yanero v. Davis20 explained public school immunity as having three aspects: (a) sovereign immunity is absolute and applies to public officials sued in their representative (official) capacities when the state is the real party against which relief is sought. Such absolute immunity extends to legislators and judges in their official capacities, prosecutors, etc.; (b) governmental immunity protects state officials in the performance of their governmental functions in administering the departments of government. The theory here is that the separation of powers does not permit judges to second guess the discretionary decisions of administrators in the executive branch of government; and (c) official immunity, the third type, is divided into two categories, representative and individual. If a government official or employee is sued in a “representative” capacity, then she or he is invested with the absolute immunity of the state agency itself. If sued in her or his “individual” capacity, then the immunity is not absolute, but rather qualified or conditional. This qualified immunity is the same as the “state-agent immunity,” explained above by the Alabama Supreme Court, that vests the school district administrator or teacher with immunity so long as alleged negligent acts constituted “judgment calls” in the exercise of discretion, were made in good faith, and within the scope of the officer’s or teacher’s authority. Conversely, an officer or an employee is afforded no immunity from tort liability for
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the negligent performance of a ministerial function.21
The Doctrine of Sovereign Immunity May Protect Teacher from Liability for Pupil Injury
Lentz v. Morris Supreme Court of Virginia, 1988. 236 Va. 78, 372 S.E.2d 608.
COMPTON, Justice. The sole question presented in this appeal is whether the doctrine of sovereign immunity protects a high school teacher supervising a physical education class from a negligence action for damages brought by a student injured while a member of the class. . . . The plaintiff asserts that on November 9, 1984, the day of the injury, he was a student and defendant was a teacher of health and physical education at Kellam High School in Virginia Beach. He alleges that he was assigned to a physical education class conducted “under the supervision and in the presence of Defendant.” He further asserts that, while participating with the class in activities on school grounds, he and other students were “playing tackle football without wearing any protective equipment,” which activity defendant knew or should have known posed danger to the participants. Plaintiff also alleges that as the result of the defendant’s negligent supervision and control of the physical education activities, he was “tackled with great force and violence” which caused his injuries. . . . [P]laintiff contends that the trial court erred in ruling that a school teacher is entitled to immunity “for his own acts of negligence.” . . . . . . [T]he plaintiff urges, “Insulation of this individual from responsibility for his own negligent acts does not achieve any of the purposes for which immunity is ordinarily extended to governmental employees.” We do not agree. Messina v. Burden [228 Va. 301, 321 S.E.2d 657 (1984)] was a watershed decision on the subject of sovereign immunity. In that case, we
reviewed our prior decisions stemming from diverse factual settings and attempted to reconcile them. Reasserting the viability of the doctrine in the Commonwealth, we endeavored to explicate the circumstances under which “an employee of a governmental body is entitled to the protection of sovereign immunity,” given the facts of the cases under consideration in Messina. . . . Initially, we focused upon the purposes served by the doctrine. They include “protecting the public purse, providing for smooth operation of government, eliminating public inconvenience and danger that might spring from officials being fearful to act, assuring that citizens will be willing to take public jobs, and preventing citizens from improperly influencing the conduct of governmental affairs through the threat or use of vexatious litigation.” . . . We then said that in order to fulfill those purposes, the reach of the doctrine could not be limited solely to the sovereign but must be extended to “some of the people who help run the government.” . . . We noted that because the government acts only through individuals, it could be crippled in its operations if every government employee were subject to suit. In Messina, against the background of the purposes of the doctrine, the general principles applicable to the concept, and the facts and circumstances of the cases at hand, we proceeded to engage in a necessary “line-drawing” exercise to determine which government employees were entitled to immunity. Thus, in one case, we held that a State supervisory employee who was charged with simple negligence while acting within the scope of his employment was immune, there being no charge of gross negligence or intentional misconduct. . . . In the other Messina case, supra, we decided that an employee of a county, which shares the immunity of the State, was entitled to the benefits of sovereign immunity where his activities clearly involved the exercise of judgment and discretion. . . . In deciding that case, we outlined the test . . . to be used to determine entitlement to immunity. The factors to be considered include: (1) the nature of the function the employee performs; (2) the extent of the governmental entity’s interest and involvement in the function; (3) the degree of control and direction exercised by the governmental entity over the employee; and
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Abrogation of Immunity
(4) whether the alleged wrongful act involved the exercise of judgment and discretion. . . . We hold the trial court correctly ruled that the health and physical education teacher in this case was immune from suit. The facts expressly alleged, and the inferences flowing from those facts, state the following case. The defendant, an employee of an immune governmental entity, was charged with simple negligence in the supervision and control of the class to which he was assigned. The facts do not support a charge of either gross negligence or intentional misconduct. In addition, and contrary to the contention of the plaintiff on brief, implicit in the facts alleged is the conclusion that the defendant was acting within the scope of his employment at the time of the injury. Therefore, factors included in the Messina test for entitlement to immunity are present in this case. The employee is performing a vitally important public function as a school teacher. The governmental entity employing the teacher, the local school board, has official interest and direct involvement in the function of school instruction and supervision, and it exercises control and direction over the employee through the school principal. . . . And, a teacher’s supervision and control of a physical education class, including the decision of what equipment and attire is to be worn by the student participants, clearly involves, at least in part, the exercise of judgment and discretion by the teacher. Consequently, the Messina test, given the purposes served by the doctrine, mandates immunity for this defendant. If school teachers performing functions equivalent to this defendant are to be hauled into court for the conduct set forth by these facts, fewer individuals will aspire to be teachers, those who have embarked on a teaching career will be reluctant to act, and the orderly administration of the school systems will suffer, all to the detriment of our youth and the public at large. For these reasons, the judgment of the trial will be Affirmed.
CASE NOTE In a case involving a charge of negligent supervision against a teacher when a child fell from monkey bars in physical education class, breaking
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her arm, a Georgia court held that both the teacher and the school board were immune from liability and that the presumption of immunity could not be defeated without evidence of actual malice. Crisp County School System v. Brown, 487 S.E.2d 512 (Ga. App. 1997).
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Abrogation of Immunity
As observed earlier, there has been a progression of statutory and judicial modifications of the original common-law doctrine of sovereign immunity. State legislatures have, at times, acted to redefine the law at the impetus of the courts, and at other times, legislatures have responded to what they have perceived to be social necessities. Keeton et al. note that the great majority of the states have now consented to at least some liability for torts.22 Only two states have retained what may be classified as total sovereign immunity,23 whereas seven or eight other states technically retain immunity in the courts but have statutorily established administrative tribunals to hear and ascertain whether the state should be held liable.24 Another group of states has waived tort immunity in certain classes of cases, usually those in which the state or locality has secured liability insurance that will pay for judgments against the governmental entity, or have adopted specified waivers of immunity for particular functions, such as injuries caused by motor vehicles or by negligence in the upkeep or oversight of real property owned by the school.25 Further, some states have drawn a distinction between governmental and proprietary functions performed by school districts.26 The largest group of states, about 30, has comprehensively abrogated immunity. In these states, governmental units at the state and local levels may be liable for both misfeasance and nonfeasance.27 Even in these states, however, there may be a distinction between acts that are discretionary and those that are ministerial in nature. The general rules that apply are given by the Restatement (Second) of Torts as follows: (1) A State and its governmental agencies are not subject to suit without the consent of the State. (2) Except to the extent that a State declines to give consent to tort liability, it and its governmental agencies are subject to the liability.
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(3) Even when a State is subject to tort liability, it and its governmental agencies are immune to the liability for acts and omissions constituting (a) the exercise of a judicial or legislative function, or (b) the exercise of an administrative function involving the determination of fundamental governmental policy. (4) Consent to suit and repudiation of general tort immunity do not establish liability for an act or omission that is otherwise privileged or is not tortious.28
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Discretionary Functions
Judicial and legislative functions of state government are typically immune from liability. Courts reaching an erroneous judicial decision cannot be held liable in damages. Neither can a legislature be held liable in damages in tort for an injury resulting from legislation. State and local agencies, such as state educational agencies and local school districts, do not necessarily have immunity for all their acts and omissions, however.29 The U.S. Supreme Court has said that, “of course, it is not a tort for government to govern.”30 Thus, tort liability does not automatically arise from a failure of the state to act in providing a benefit or a service.31 There is no liability for failure to provide police protection or for failure of the local government to enforce fire-safety codes or building codes or for issuance of a driver’s license to one who drives a car unsafely.32 Most states draw a distinction between discretionary and ministerial acts in the application of immunity. Discretionary acts are afforded a qualified or conditional “malice-destructible” immunity, while no immunity at all is provided for failure to properly perform “ministerial” acts. Discretionary and ministerial functions of public officials are discussed earlier in this text, but specificity as to liability is particularly important here. The Restatement (Second) of Torts says that there “is no single test” to distinguish between discretionary and ministerial acts.33 The term discretion, when applied to public functionaries, means “power or right conferred upon them by law of acting officially in certain circumstances according to the dictates of their own judgment or conscience, uncontrolled by the judgment or conscience of others.”34
A ministerial act, on the other hand, is one that leaves nothing to judgment or discretion. It constitutes a simple and definite duty, imposed by law, involving only obedience to instructions.35 The theory prescribes that if a public official is charged with exercising judgment, then no liability can accrue from error in that judgment. Liability may result, however, from not properly performing a ministerial function. Because so many factors interplay in most court decisions on the subject, the Restatement (Second) of Torts has concluded that liability will be determined by a series of considerations, not merely by strict adherence to the definitions of the two terms. The factors gleaned from various precedents revealing whether immunity will lie for discretionary acts are given by the Restatement (Second) of Torts as follows: (1) The nature and importance of the function that the officer is performing. How important to the public is it that this function be performed? That it be performed correctly? That it be performed according to the best judgment of the officer, unimpaired by extraneous matters? . . . (2) The extent to which passing judgment on the exercise of discretion by the officer will amount necessarily to passing judgment by the court on the conduct of a coordinate branch of government. . . . Is the action at the planning or the operational level? What is the level of the government?. . . (3) The extent to which the imposition of liability would impair the free exercise of his discretion by the officer. Is this function peculiarly sensitive to the imposition of liability? . . . How far is the mere threat of vexatious suit, which the attendant publicity and the possible need of testifying as to the basis on which the decision was made, likely to affect the exercise of discretion? . . . (4) The extent to which the ultimate financial responsibility will fall on the officer. . . . (5) The likelihood that harm will result to members of the public if the action is taken. Is this action certain or substantially certain to impose damage on some people? . . . (6) The nature and seriousness of the type of harm that may be produced. Is it a loss that can be easily borne by the injured party? . . . How far is the extent of the harm known or apparent to the officer? . . . (7) The availability to the injured party of other remedies and other forms of relief. . . . Could he have insured against it? Can he obtain some other kind of judicial review of the correctness or validity of the officer’s action? Is specific relief available?
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Discretionary Functions
Beneath all of these factors is the general attitude of the jurisdiction and of the court toward the subject of governmental tort liability. Does the court think first of the heavy responsibility and severe financial burden that may be imposed on the government, or does it regard, primarily, the harm to the injured party and assume that the loss should be spread among all the taxpayers? To spread the loss in this fashion, however, the government must be willing to take it off the shoulders of the government official.36
Statutory Immunity for Discretionary Acts Absolves School District from Liability
Mosley v. Portland School District No. 1J Supreme Court of Oregon, 1992. 315 Or. 85, 843 P.2d 415.
GILLETTE, Justice. In this personal injury case, plaintiff brought an action against defendant school district for injuries sustained in a fight on school grounds during lunch period. A jury returned a verdict in favor of defendant on the ground that defendant was not negligent. . . . On November 13, 1987, plaintiff was a student at one of defendant’s high schools in Portland. She was cut by a knife during a fight with another student at her high school during lunch period. Plaintiff brought this action against defendant, alleging that defendant was liable for her injuries because it was negligent in: (1) failing to exercise proper supervision of students; (2) failing to provide proper security and sufficient security personnel for protection of students when defendant knew that students carried weapons at the school; (3) failing to prevent weapons from being carried into the school building; and (4) failing to stop the attack before the knife was used. Defendant asserted, among other things, the affirmative defense of discretionary immunity under the Oregon Tort Claims Act. ORS 30.265(3)(c). . . .
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The only question before us concerns plaintiff ’s theories of negligence as to which the Court of Appeals held that defendant was not immune—allegations one and four. (The Court of Appeals held that defendant was immune as a matter of law with respect to plaintiff’s other theories, and she has not sought review of that holding.) The parties present the same arguments that they did before the Court of Appeals. With respect to plaintiff’s remaining theories, we turn to a consideration of whether defendant is immune as a matter of law under the “discretionary function or duty” provision of ORS 30.265(3) (c) from liability for plaintiff’s injuries. Because the defense that defendant claims under ORS 30.265(3)(c) is statutory, we must determine the statute’s meaning. To be immune under ORS 30.265(3)(c), the decision at issue must be “a policy judgment by a person or body with governmental discretion.” . . . The statute provides immunity “to decisions involving the making of policy, but not to routine decisions made by employees in the course of their day-to-day activities, even though the decision involves a choice among two or more courses of action.” . . . “[N]ot every exercise of judgment and choice is the exercise of discretion. It depends on the kind of judgments for which responsibility has been delegated to the particular officer. Discretion, as this court has noted in other contexts, involves ‘room for policy judgment,’ . . . or the responsibility for deciding ‘the adaptation of means to an end, and discretion in determining how or whether the act shall be done or the course pursued’. . . .” . . . A public body that owes a particular duty of care (such as that owed by a school district to its students who are required to be on school premises during school hours) has wide policy discretion in choosing the means by which to carry out that duty. . . . The range of permissible choices does not, however, include the choice of not exercising care. . . . Normally, a choice within the permissible range, in order to qualify for immunity, is one that has been made by a supervisor or policy-making body. . . . On the other hand, the choice to follow or not to follow a predetermined policy in the face of a particular set of facts involving the safety of a particular individual normally is not a discretionary policy choice entitled to immunity under ORS 30.265(3)(c). . . .
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Under the foregoing principles, plaintiff’s first allegation—that defendant failed to exercise proper supervision of students—concerns what is, on the face of it, a matter of discretion, i.e., the location of security personnel to supervise the general student body at the school at any particular time. Thus, on its face, the first allegation should not have been submitted to the jury. . . . “‘Discretion,’ as this court has noted in other contexts, involves ‘room for policy judgment’ or the responsibility for deciding ‘the adaptation of means to an end, and discretion in determining how or whether the act shall be done or the course pursued.’” . . . The principal’s decisions on the number and allocation of his security personnel were matters involving “room for policy judgment” and “the adaptation of means to an end.” . . . Plaintiff’s fourth allegation—that defendant was negligent in failing to stop the fight before the knife was used—is not as clearly a policy judgment as are the facts asserted in plaintiff’s first allegation. Nonetheless, we hold that, on this record, defendant’s actions were immune. Plaintiff’s fourth allegation can be read in two ways: (1) Defendant failed to anticipate that there would be a fight between students at the particular location within the school where this fight occurred, and to allocate security personnel accordingly; or (2) having observed the fight, defendant did nothing to break it up before the other student stabbed plaintiff. The first possible reading is simply an alternative way of criticizing the principal’s policy choice in the way in which he allocated security and supervisory personnel within the high school building; it therefore adds nothing to the first allegation of negligence. Under such a reading, the allegation was insufficient for the reasons already discussed in connection with plaintiff’s first allegation. The second possible reading, however, alleges knowledge of a kind that would remove defendant from the scope of the immunity afforded by ORS 30.265(3) (c), i.e., it alleges specific knowledge concerning the incident involved in this case that, if acted on in a timely manner, would have enabled defendant to protect plaintiff. That possible second reading does not aid plaintiff here, however. The evidence at trial, viewed in the light most favorable to plaintiff, would not permit a jury to find that defendant had
specific knowledge that the fight was occurring or would occur and that defendant then failed to intervene in a timely way. In other words, there is no evidence that defendant acted negligently. Without such evidence, plaintiff could not prevail under her fourth allegation, even if it were read as extending to nondiscretionary acts. Because plaintiff’s claims and the record in this case related only to acts for which defendant either is immune for liability as a matter of law or as to which there was no evidence that defendant was negligent, we need not reach the issue whether the availability of the immunity defense under ORS 30.265(3)(c) may at times depend on factual questions that properly could be submitted to a jury. We hold that the trial court properly entered judgment in favor of defendant. The decision of the Court of Appeals is affirmed in part and reversed in part. The judgment of the circuit court is affirmed.
School Trip Director’s Decision Under Zero Tolerance Policy to Send Student Home Was Not Shielded by Discretionary Immunity
Ette ex rel. Ette v. Linn-Mar Community School District Supreme Court of Iowa, 2002. 656 N.W.2d 62.
NEUMAN, Justice. Linn-Mar High School has adopted what is commonly known as a “zero tolerance” policy concerning students’ use or possession of tobacco, alcohol, and drugs. This case involves a ninth grader who was caught with cigarettes while on a school band trip to San Antonio, Texas. He was returned home, alone, via Greyhound bus. The youngster survived the 1100-mile journey, but his distraught father sued the school district for negligent endangerment and other alleged wrongs. This appeal follows the district court’s directed verdict for the school district.
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Discretionary Functions
The principal question on appeal is whether the discretionary function exception of our municipal tort claims act, Iowa Code section 670.4(3) (1999), immunizes the school district for its decision, right or wrong, to send the youngster home. The district court believed the statute barred the parent’s negligence claims. Because we do not believe section 670.4(3) was designed to shield the school from an alleged breach of its duty of care and supervision toward students in its charge, we reverse that portion of the district court’s decision and remand for a new trial. We affirm, however, the dismissal of the plaintiffs’ other claims. The material facts are largely undisputed. Plaintiff, Tony Ette, attended Linn-Mar High School and played musical instruments in both the band and orchestra. In order to participate in these activities, Tony and his father, plaintiff Robert Ette, were required to sign a Co-Curricular Conduct Policy which prohibited the possession or use of “tobacco, alcohol or other drugs at any time (year round)” during his high school career. A first-time violator risked forfeiture of 20% of public performances and mandatory counseling. Both Tony and his father signed the agreement knowing full well that, even as a freshman, Tony regularly smoked cigarettes. He was otherwise a good student and not a discipline problem. During the spring semester of his freshman year, Tony signed up for the music department’s trip to San Antonio, Texas. It was an event of major proportions—405 students, eleven buses, and over seventy chaperones. . . . Both Tony and his father read the rules and acknowledged their understanding of them by signing a written trip agreement. The agreement specifically noted that the signing parties understood “violations of some of these rules (such as use or possession of alcohol, drugs, or weapons, or repeated failure to comply with the enclosed rules) will cause [the student] to be sent home at his/her own expense.” The rules further provided, and the plaintiffs agreed by their testimony, that final decisions regarding inappropriate student behavior rested with the music directors. Contrary to his father’s wishes, and in knowing violation of the rules, Tony took cigarettes with him and discreetly smoked them on the way down to Texas whenever the opportunity
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arose. Upon the group’s arrival in San Antonio, Tony went out for some food and a smoke. When he returned to his hotel room, he discovered that not only had his roommates been smoking in the room but two girls had been invited in, another violation of the rules. Tony criticized their risky behavior and a brief argument ensued. The roommates and their friends then left the room. Tony lay down for a nap. Meanwhile, a chaperone had smelled cigarette smoke wafting from the boys’ room. The trip directors, defendants Steve Colton and Kevin Makinster, proceeded to investigate. They found Tony in the room, advised him of the report and asked to conduct a search. Tony emptied his pockets, revealing his lighter and cigarettes. He explained that his roommates had been smoking in the room, not him. Makinster attempted to verify Tony’s claim, but Tony’s roommates successfully concealed their cigarette possession and denied any misconduct. Colton and Makinster then made the decision to send Tony back home on the next available Greyhound, in keeping with the trip rules. At this point the parties’ recollection of events diverges somewhat. Colton telephoned Tony’s father. Robert says he asked Colton to put his son on an airplane instead of a bus or, at the very least, to have one of the chaperones accompany Tony on the bus ride home. Colton countered that he was the one who suggested the airplane trip as an alternative. He claimed that Robert did not respond to that offer, most likely for financial reasons. Colton acknowledged that he considered and rejected Robert’s request for a chaperone due to a variety of concerns, financial and otherwise, that such an alternative presented. Colton took Tony to the bus station for an 11:55 p.m. departure. The trip from San Antonio to Cedar Rapids would include stops and layovers in Dallas, Tulsa, Kansas City, Des Moines, and Iowa City. Tony had just enough money to buy the ticket, so Colton insisted on paying one-half and taking an IOU so Tony would have money for food along the way. They called Robert again from the station. Colton reported that he sounded confused and distraught. Colton stayed with Tony until he boarded the bus. At no time did Tony protest the arrangements. When Tony reached Tulsa and attempted to buy a meal, he discovered his wallet was
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missing. He suspected he had been the victim of a pickpocket at the depot in Dallas. He was also solicited to buy marijuana there. Other than these two incidents, Tony arrived home safely some thirty hours after his journey began. The Ettes filed suit against the Linn-Mar Community School District and its superintendent, Joe Pacha, along with Colton and Makinster. Their petition, as finally amended, sought actual and punitive damages for breach of contract, negligent endangerment, defamation, tortious interference with contract and false imprisonment. The defendants asserted a general denial as well as a number of affirmative defenses, among them the discretionary function immunity granted school districts and their employees under Iowa Code section 670.4(3). . . . . . . In Iowa, “every municipality is subject to liability for its torts and those of its officers and employees, acting within the scope of their employment or duties, whether arising out of a governmental or proprietary function.” Iowa Code § 670.2. By definition, “municipality” includes a school district. Id. § 670.1. Municipalities are, however, statutorily immune from liability for “[a]ny claim based upon . . . the exercise or performance or the failure to exercise or perform a discretionary function or duty . . . whether or not the discretion is abused.” Id. § 670.4(3). Commonly known as the “discretionary function exception,” this immunity is intended to “prevent judicial ‘second guessing’ of . . . administrative decisions grounded in social, economic, and political policy” through tort litigation, thereby protecting municipalities “from liability that would seriously handicap efficient government operations.” Goodman v. City of LeClaire, 587 N.W.2d 232, 237 (Iowa 1998). . . . . . . [T]he Ettes have never challenged school officials’ right to punish Tony for his misbehavior. They merely contend that, in exercising their disciplinary function, the school district and its employees breached their duty of due care for his safety. In other words, the case arose out of a disciplinary situation but plaintiffs’ theory of recovery turns on proof of inadequate supervision and the damages allegedly flowing from that harm. Having identified the conduct that allegedly caused the plaintiffs’ harm, the question becomes whether the conduct is of the type that the legislature sought to immunize. . . . That brings us to the two-part test we recognized in Goodman:
(1) Did the challenged conduct involve an element of choice or discretion? (2) If discretionary judgment was involved, was the decision or course of action driven by public policy concerns grounded on social, economic or political considerations? . . . A negative answer to either question will defeat the application of the discretionary function exception. . . . And, because liability is the rule and immunity the exception, the burden rests on the governing body to prove entitlement to the statute’s protection. . . . Was the conduct discretionary? Plaintiffs offer a variety of reasons why defendants allegedly fail the first test but—like the district court—we find none of them persuasive. In substance they argue that Colton’s and Makinster’s decision was ministerial, not discretionary. For example, they assert the decision to send Tony home alone was not a “permissible exercise of judgment” because it violated a number of administrative regulations governing discipline, detention and extracurricular activities. None of these arguments were raised in the trial court, however, so they are not preserved for consideration now. . . . . . . The rules in fact vested discretion in the trip directors regarding matters of discipline and supervision. And, as will be discussed further, the record is replete with testimony regarding the choices involved in Colton’s and Makinster’s judgment call. The first test is plainly satisfied. Is the discretionary judgment driven by public policy? The controlling question is whether the defendants’ decision to send Tony on an 1100-mile bus trip, alone, was a judgment call driven by social, economic or political concerns. Here is where the important distinction between a school’s disciplinary discretion and its supervisory duty comes into play. We entertain no doubt that Colton’s swift decision to enforce the no-tobacco rules, rather than giving Tony a second chance, was a decision fraught with social implications. This was the first day of the trip, Tony showed little remorse for his misbehavior, and rumors were flying among the other students regarding the consequences to be imposed. In Colton’s words, “if we hadn’t acted on it, I’m afraid that we would have had other rules broken, possibly [I] believe more serious rules, possibly more serious consequences.” This is just the type of policy-laden disciplinary decision that courts are ill equipped to second-guess
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Discretionary Functions
and, hence, might enjoy the shield of the discretionary function exception. . . . Here the record reveals abundant testimony about the weighing of pros and cons incident to the decision to discipline Tony and, then, to send him home. The weakness in the defendants’ position, and the source of error for the district court, is that the challenged conduct in this case is not the act of discipline but the decision to send a fifteenyear-old on a cross-country bus trip unsupervised. That decision, right or wrong, is not one driven by public policy implications uniquely within the purview of school officials and employees. In fact the policy governing such conduct is well settled. . . . The law charges school districts with the care and control of children and requires the school district to exercise the same standard of care toward the children that a parent of ordinary prudence would observe in comparable circumstances.
. . . Nearly any professional decision can be ascribed to policy. But a school district may not escape its overarching duty of care toward a student in its charge by merely claiming that an individual teacher’s decision, such as the one at issue here, was driven by social, economic or political forces and, hence, immune from suit. If that were so, a school district’s duty of ordinary care for the safety of its students would be rendered a nullity. We are confident this is not what the legislature had in mind when it enacted section 670.4(3). We are mindful, of course, that a school district’s duty to supervise its students and protect them from harm is not unlimited; the law limits the duty to reasonably foreseeable risks. . . . But this weighing of duty and foreseeable risks is a task regularly assumed by courts and juries on a case-by-case basis. Given the record made here, the district court should not have directed a verdict in defendants’ favor based on their alleged entitlement to discretionary function immunity. We therefore reverse that portion of the district court’s ruling and remand for a new trial on plaintiffs’ negligence claim. Because the negligence claim must be retried, we need not address plaintiffs’ challenge to the verdict directed against them on their punitive damages claim. . . . . . . We need only briefly address plaintiffs’ challenge to the dismissal of their claims for
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alleged intentional torts. As to each count, defendants were entitled to directed verdict because plaintiffs failed to tender substantial evidence on at least one of each claim’s essential elements. Affirmed in part, reversed in part, and remanded. [The court affirmed the lower court’s dismissal of the claims of Plaintiff alleging false imprisonment, intentional infliction of emotional distress, and tortious interference with a contract.]
CASE NOTES 1. Immunity for Discretionary Decisions. Courts may distinguish common-law immunity from statutory immunity. Common-law immunity protects public officials from individual liability in making discretionary decisions; however, a public employee must also perform ministerial duties as prescribed by school board policy or law. If a ministerial function is not carried out or performed properly, immunity is not a defense and liability may accrue. In other words, common-law immunity will not extend to failure to perform ministerial duties. On the other hand, if an employee makes a discretionary decision and it results in injury, then common-law immunity may protect the actor. If a teacher follows an official protocol and exercises discretion in teaching a class and a child is injured, then common-law official immunity will apply. Anderson v. Anoka Hennepin Independent School District, 678 N.W.2d 651 (2004). 2. Common Law Sovereign Immunity versus Constitutional Rights. The doctrine of sovereign immunity is a common-law concept that emanated from English common law. As noted above in this chapter, sovereign immunity forecloses tort remedies against a state in the absence of state statutes that abrogate or modify sovereign immunity. The question, thus, arises as to whether a student’s fundamental constitutional right to an education would prevail over common law should the two come in conflict. The North Carolina Supreme Court has held that the constitutional right to an education overrides the state’s defense of common law of sovereign immunity. The court, in 2009, said It would be a fanciful gesture to say on the one hand that citizens have constitutional individual rights that are protected from encroachment actions by the State, while on the other hand saying that individuals
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whose constitutional rights have been violated by the State cannot sue because of the doctrine of sovereign immunity. . . . Thus, when there is a clash between these constitutional rights and sovereign immunity, the constitutional rights must prevail.
Craig v. New Hanover County Board of Education, 363 N.C. 334, 678 S.E.2d 351 (2009). 3. Discretionary Function of Teacher. Supervision of students is considered to be a discretionary function of a teacher that is protected from liability by official immunity. Official immunity “protects individual public agents from personal liability for discretionary actions taken within the scope of their official authority, and done without willfulness, malice or corruption.” A teacher’s implementation of policies that relate to the monitoring, supervision, and control of students in and around school during school hours and during extracurricular activities is a discretionary and not a ministerial function. Chamlee v. Henry County Board of Education, 521 S.E.2d 78 (Ga. App. 1999). 4. Poor judgment on the part of a teacher does not deprive her of immunity in the exercise of a discretionary function. A Texas court was loathe to deprive a teacher of immunity because she helped students establish a fake newspaper article, which resulted in emotional distress for one of the students. The court permitted the teacher’s defense of statutory official immunity noting that there is no precise definition of the discretion that is vested in an individual teacher in performing her duties. The court thereby deferred to the school authorities, saying: As long as the teacher’s mistake involves the exercise of judgment or discretion, she is protected by the [state] statute [granting official immunity for discretionary acts of public employees]. A teacher who uses poor judgment is nevertheless acting in a way that involves the exercise of discretion. . . , to be dealt with by her employer and the state licensing agency. . . . Kobza v. Kutac, 109 S.W.3d 89 (Tex. 2003).
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Insurance Waiver of Immunity
Several states have waived immunity, by statute or case law, if the school district purchases liability insurance. If it does not purchase insurance, then
the immunity remains in effect.37 The Montana Supreme Court has explained the issue as such: We conclude that the Montana Legislature has reached the following conclusion: while a school district is granted immunity of various types, a school district still is granted authority to purchase insurance which may have the effect of waiver of immunity to the extent of the insurance proceeds. We do not find it necessary to imply a waiver, as the intention of the Legislature is clear. That intention is reemphasized by its authorization of tax levies sufficient to pay for insurance premiums. That intention is consistent with the legislative theory that a claim against a school district should be paid in a manner similar to payment required of a private party. We conclude that the Legislature has declared its intent to allow a school district to waive immunity to the extent of the insurance proceeds.38
A Virginia court, in 2001, followed the generally accepted rationale that the statutory defense of sovereign immunity will not bar an action for recovery of damages in an amount up to the limits of the insurance policy.39 Similarly, the Oklahoma Supreme Court held that under the common-law defense of sovereign immunity, a school district that chooses to purchase liability insurance to cover a specific type of injury waives its immunity only to the extent of the coverage.40 Procedurally, where insurance is involved, it is assumed that a school district will attempt an administrative settlement before resorting to the courts.41
Whether Sovereign Immunity Is Waived May Depend on the Specific Terms of Liability Insurance Policy
Dugger v. Sprouse Supreme Court of Georgia, 1988. 257 Ga. 778, 364 S.E.2d 275.
SMITH, Justice. Appellee Anthony Plavich is an employee of Murray County school system. A suit was filed by a student, appellant Darin Dugger, for injuries he received when he was thrown from the back
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Proprietary Functions
of a pickup truck while delivering wrestling mats from one county school to another. The appellee’s motion for summary judgment, based upon the defense of sovereign immunity, was granted. We affirm. If insurance coverage is obtained by a government entity, then the government entity (the county in this case) waives its sovereign immunity to the extent of such insurance coverage. . . . However, where the plain terms of the policy provide that there is no coverage for the particular claim, the policy does not create a waiver of sovereign immunity as to that claim. Here the trial court found that the policy did not provide coverage for the appellant’s claim. Where there is no insurance coverage, there is no waiver of sovereign immunity. Judgment affirmed.
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Proprietary Functions
Some courts, being reluctant to totally abrogate immunity, have sought ways to avoid direct confrontation with the issue. To sidestep the overall problem, courts have settled tort actions in several states on the basis of the activity or function that was being performed by the school district when the injury occurred. In this regard, we should note that school districts operate in a dual capacity—performing functions that are strictly governmental the majority of the time, they also, on some occasions, perform proprietary functions, or functions that may be performed by a private corporation. Proprietary functions have been defined as things not normally required by law or things not governmental in nature. If a function is within the scope of the public school operation, as expressed or implied by statute, then the function is governmental, not proprietary. Courts have generally held that school athletic contests are governmental functions.42 Although the courts have rather consistently held that municipalities are liable for injuries arising out of functions for which admission is charged or some financial gain is realized, they have been reluctant to generally apply this standard to school districts. Thus, if a spectator or participant is injured at an athletic contest, the courts do not usually impose liability on the school district, even when a fee is charged and the school has realized a
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profit. In following the rule that school districts are immune from liability for incidents arising during functions that charge fees, a Tennessee court said: The mere fact that an admission fee was charged by the high school does not make the transaction an enterprise for profit. . . . The duties of a County Board of Education are limited to the operation of the schools. This is a governmental function. Therefore, in legal contemplation, there is no such thing as such a Board acting in a proprietary capacity for private gain.43
A Kansas court has said, in dicta, that if a school district can and does perform proprietary activities, then it must answer in damages when guilty in tort for injuries resulting from such functions.44 The Oregon Supreme Court has laid down a test for distinguishing proprietary from governmental functions: “The underlying test is whether the act is for the common good of all without the element of special corporate benefit or pecuniary profit.”45 The rule, therefore, may be summarized thus: as long as the purpose of the activity is educational and for the common good, and the profit accrued is only incidental, the activity is governmental in nature. This general rule is enunciated by a Michigan court in a 1984 decision: We therefore conclude that a governmental function is an activity which is expressly or impliedly mandated or authorized by constitution, statute, or other law. When a governmental agency engages in mandated or authorized activities, it is immune from tort liability, unless the activity is proprietary in nature.46
Not all courts agree with this rule, however. It is, of course, an entirely appropriate rejoinder to assert that because public schools have no legitimate function except as authorized by law, they cannot legally perform proprietary functions. In this view, proprietary functions are ultra vires and, thereby, have no legal cognizance. This is precisely the position taken by a Texas appellate court, which concluded simply that public school districts, by their very nature, cannot perform proprietary functions. This court has stated: Since a school district is purely a governmental agency and exercises only such powers as are delegated to it by the state, it performs no proprietary functions that are separate from governmental functions.47
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Chapter 14
School District Liability
Licensees and Invitees
A school district owes a greater degree of care to an invitee than to a licensee. A licensee is one who steps beyond the limits of invitation, entering and using the premises by permission or by operation of law but without expressed or implied invitation.48 A licensee does not commit trespass because he or she has passive permission to enter. Passive permission is not an implied invitation. On the other hand, an invitee is a person who enters the premises upon the invitation of the owner. Either the invitation may be “expressed,” when the owner invites another to come and use the premises, or the invitation may be “implied,” when the owner by his or her acts or conduct conveys the desire that the person enter the premises. An owner of property normally does not owe a licensee particular duty and is therefore not responsible for exercising any particular standard of care to protect the licensee. Some courts, however, have held that an owner may be liable for willful or wanton disregard for the safety of the licensee. In this regard, the owner should not knowingly let the licensee run upon “hidden peril or willfully cause him harm.”49 The standard of care owed an invitee is much higher, and the duty owed by the owner is substantially greater. The Restatement (Second) of Torts defines an invitee test for liability purposes as follows: (1) An invitee is either a public invitee or a business visitor. (2) A public invitee is a person who is invited to enter or remain on the land as a member of the public for a purpose for which the land is held open to the public. (3) A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land. . . .50
In a case where a parent volunteered to join the after-prom clean-up crew, fell from scaffolding, and was injured, the court considered the parent to be an invitee and not a licensee. Therefore, the school had a high duty to the parent to prevent injury that it did not properly perform. The court said: A landowner owes a licensee a duty to refrain from willfully or wantonly injuring him of acting in a manner to increase his peril. . . . [L]icensees
and trespassers are those who enter the premises for their own convenience, curiosity or entertainment. Unlike trespassers however, licensees have a license to use the land. That is, licensees are privileged to remain on the land by virtue of the owner’s or occupier’s permission or suffrage. . . . A landowner owes the highest duty to an invitee: a duty to exercise reasonable care for his protection while he is on the landowner’s premises. . . .51
Holder of a Free Pass to a Football Game Was an Invitee to Whom the School District Owed a Duty of Reasonable Care
Tanari v. School Directors of District No. 502 Supreme Court of Illinois, 1977. 69 Ill. 2d 630, 14 Ill. Dec. 874, 373 N.E.2d 5.
UNDERWOOD, Justice. Plaintiff, Flora Tanari, brought an action . . . seeking damages for injuries she sustained when she allegedly was knocked to the ground by a group of children engaged in horseplay at a high school football game sponsored by defendant on its premises. The complaint alleged ordinary negligence on the part of defendant in failing to provide adequate supervision and control of children at the game. At the close of the evidence, the trial court granted the defendant’s motion for a directed verdict on the ground that plaintiff was a licensee on defendant’s premises; that defendant therefore only owed her the duty to refrain from willful and wanton misconduct; and that breach of such duty had neither been alleged nor proved at trial. . . . Plaintiff, age 64, was employed as a bus driver by an individual who had a contract with the defendant school district to transport students to and from school. She had been so employed for twenty-seven years and had attended all of the local high school football games for the last twenty-five years. On October 13, 1972, plaintiff attended the Hall Township High School homecoming football game with her daughter,
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Licensees and Invitees
son-in-law and grandchildren. The game was held on defendant’s premises at a sports stadium under defendant’s supervision and control. Plaintiff entered the stadium using a complimentary season pass issued by the defendant. As she was walking toward her seat, she noticed a crowd of boys and girls playing near the northwest end of the stadium, and the next thing she knew she had been knocked to the ground by a “big” boy who fell on top of her. The boy, who was never identified, got up, apologized and hurried away. . . . The athletic director of Hall Township High School testified that he had hired off-duty policemen and teachers to keep order at all high school football games conducted by the defendant. . . . He responded in the affirmative when asked if he had seen boys and girls at almost every game “playing tag, or horseplaying and roughing it up” in the area in question. However, when he was later asked if there was “rowdiness and horseplaying by these kids in that area,” he responded that he did not know whether it should be called rowdiness and horseplay, but the children were definitely there. He further testified that on previous occasions he had tried to “correct” the children but that, as soon as he left, they were back at it again. He knew from his personal observation that a policeman was in the area of the accident on the night in question. The trial court allowed the defendant’s motion for a directed verdict on the sole ground that plaintiff was a licensee on the defendant’s premises and that there was no proof whatsoever that defendant had breached its duty to refrain from willful and wanton misconduct. . . . Considering the state of the record before us, we are unable to concur with the appellate court’s conclusions regarding defendant’s immunity. . . . It is unnecessary to dwell at length on the common law distinctions between invitees and licensees which have evolved over the years. It suffices to observe that the general definition of an invitee is a visitor who comes upon premises at the invitation of the owner in connection with the owner’s business or related activity. . . . Licensees are persons who have not been invited to enter upon the owner’s premises and who come there for their own purposes and not those of the owner. . . . However, their presence is condoned by the owner, which distinguishes them from trespassers. The trial court concluded in the case
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at bar that since the plaintiff had not purchased a ticket but rather had attended the football game using a complimentary season pass, there was an absence of “commercial benefit” to the defendant school district, and she must therefore be considered a licensee. For the reasons hereafter stated, we must disagree with that conclusion. In determining whether or not a person is an invitee or a licensee in a given situation, appellate courts in this State have often looked at the surrounding circumstances to determine whether, as between the visitor and the owner, there was a “mutuality of interest in the subject to which the visitor’s business relates” . . . , “a mutually beneficial interest” . . . , a “mutuality of interest” . . . , [or] a “mutuality of benefit or a benefit to the owner” . . . , or whether the visitor had come to “transact business in which he and the owner have a mutual interest or to promote some real or fancied material, financial, or economic interest of the owner.” . . . Such inquiries into the purpose and nature of the visit were deemed relevant, particularly in cases involving implied invitations, to ascertain whether the visitor was upon the owner’s premises within the scope and purpose of the invitation or for some other reason. That type of analysis is not necessary here. In our opinion, the complimentary pass issued to plaintiff was tantamount to an express invitation to attend Hall Township High School football games, and there can be no question about the fact that at the time of her injury, plaintiff was acting within the scope of that invitation. Unlike a person who comes upon an owner’s premises for his own purposes rather than those of the owner and whose presence is merely condoned by the owner, plaintiff in this case was expressly invited and encouraged to come to the defendant’s football stadium to swell the crowd in support of its team. In this type of situation, it would be entirely illogical to conclude that a person attending the game using a complimentary pass provided by the school district should be owed a lesser duty of care than a person otherwise similarly situated who had purchased a ticket. In our view, both persons should be owed the same duty of reasonable care, and we so hold. Upon application of a reasonable care standard to the case at bar, we cannot conclude that all of the evidence, when viewed in its aspect
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most favorable to the plaintiff, so overwhelmingly favors the defendant that no verdict for the plaintiff could ever stand. . . . The question of whether defendant failed to exercise reasonable care in supervising children attending the football game and whether such failure, if found to exist, was the proximate cause of plaintiff’s injuries, should have been submitted to the jury. . . . Reversed and remanded.
CASE NOTES 1. The Restatement (Second) of Torts makes the following distinctions between an invitation and permission to enter a premises: An invitation differs from mere permission in this: an invitation is conduct which justifies others in believing that the possessor desires them to enter the land; permission is conduct justifying others in believing that the possessor is willing that they shall enter if they desire to do so. Any words or conduct of the possessor which lead or encourage the visitor to believe that his entry is desired may be sufficient for the invitation.
See Howard County Board of Education v. Cheyne, 99 Md. App. 150, 636 A.2d 22 (1994), quoting Restatement (Second) of Torts, § 332. 2. The Restatement (Second) of Torts emphasizes the “purpose” element of an invitation. It is immaterial that the admission fee is not paid or that the landowner is not mindful of a business purpose or that the visitor’s presence will lead to no possibility of benefit to the landowner, pecuniary or otherwise. It is essential, however, that the visitor is on the premises for the purpose for which the land is held open to the public. The Restatement illustrates the principle as follows: A visitor is an invitee at the free public library when she enters to read a book, but not when she enters to meet a friend or to get out of the rain. Restatement (Second) of Torts, § 332(d), illustration 2. In addition to purpose, the Restatement (Second) of Torts, § 332(d), emphasizes the need for inducement or encouragement as in other instances of invitation. Thus, “the desire or willingness to receive that person which a reasonable man would understand as expressed by words or other conduct of the possessor” remains an important factor. See also Restatement (Second) of Torts, § 332.
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Nuisance
Another device used by the courts to partially skirt the boundaries of immunity is the nuisance doctrine. A nuisance has been defined as “the existence or creation of a dangerous, unsafe, or offensive condition which is likely to cause injury, harm, or inconvenience to others.” A more complete definition has been given by a Connecticut court: [T]o constitute a nuisance there must have arisen a condition, the natural tendency of which is to create danger or inflict injury upon person or property. . . . [T]here must be more than an act or failure to act on the part of the defendant. . . . [T]he danger created must have been a continuing one.52
A leading case in which a school district was held to have created a nuisance was one in which snow had fallen from the roof of a school building onto adjacent property, damaging the property. The owner was also injured when he fell on the ice. The court held that in this case there was both nuisance and trespass: The plaintiff had the right to the exclusive use and enjoyment of his property, and the defendant had no more right to erect a building in such a manner that the ice and snow would inevitably slide from the roof, and be precipitated upon the plaintiff’s premises, than it would have to accumulate water upon its own premises, and then permit it to flow in a body upon his premises.53
In keeping with the legal definition, a dangerous condition must be created by the school district for nuisance to exist. In Kansas, an action was brought to recover damages for injury sustained by a nine-year-old pupil who slipped and fell on a wet lavatory floor. Pupils had made the floor wet and slippery by throwing wet paper towels and splashing water. The plaintiff claimed the district was maintaining a nuisance and was therefore liable. In response, the court held that the school did not create the nuisance, since pupils could be expected to splash water and throw wet towels on the floor while using the lavatory, and that washbasins were a necessary part of the school building equipment.54 However, the adequacy of supervision on the part of school personnel is another matter. Adequacy of supervision is not a question to be dealt with in a nuisance action, since to constitute nuisance there must be a continuing hazard
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Attractive Nuisance
and there must be more than a mere failure to act on the part of the defendant.55 It seems safe to conclude that although the “nuisance” theory is a viable method of averting direct confrontation with the governmental immunity issue, the courts in other jurisdictions will not plunge headlong toward its use as piecemeal abrogation. This, of course, does not mean courts will never employ the device, since it is an acceptable legal doctrine, but it does indicate a reluctance on the part of the courts to tamper with the doctrine of governmental immunity in this limited fashion.
Snow Pushed into Mounds on Playground Does Not Constitute Intentional Nuisance
Hendricks v. Southfield Public Schools Court of Appeals of Michigan, 1989. 178 Mich. App. 672, 444 N.W.2d 143.
PER CURIAM. . . . On appeal, plaintiffs argue that the public building exception to governmental immunity applies to their case because piles of snow located on a school playground constitute a dangerous condition of a public building. We disagree. . . . The public building exception to governmental immunity has been interpreted to include items permanently affixed to a public building. . . . Our Supreme Court has indicated that the public building exception will not be so expansively interpreted as to extend to all public places. . . . We do not believe that the Legislature intended its immunity exception to include the temporary condition of snow piles. Accepting as true all of plaintiffs’ factual allegations contained in their pleadings and the conclusions to be reasonably drawn therefrom, plaintiffs’ claim was so clearly unenforceable as a matter of law that no factual development could justify plaintiffs’ right to recovery. Hence the trial court did
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not err in granting summary disposition on the basis that the piles of snow did not fall within the public building exception to the defense of governmental immunity. . . . We are also unpersuaded by plaintiffs’ argument that the mounds of snow should be deemed an intentional nuisance by which the claim of governmental immunity could be overcome. To establish a claim of intentional nuisance against a governmental agency, a plaintiff must show that there is a condition which is a nuisance and that the agency intended to create that condition. . . . Because the injury of which plaintiffs complain resulted from the school’s failure to remove the mound of snow from the playground after clearing the parking lot, we conclude that the trial court in this case did not err in granting summary disposition to defendant on the basis that plaintiffs’ well-pled facts involve circumstances showing the school’s failure to act in removing the piles of snow. Further, an intentionally created nuisance requires proof that the party creating or continuing the nuisance knew or must have known that harm to a plaintiff was substantially certain to follow. . . . Here, it cannot be said that harm was substantially certain to follow from the presence of the amount of snow at issue. Accepting as true all of plaintiffs’ factual allegations contained in the pleadings and conclusions to be reasonably drawn therefrom, plaintiffs could not have proved an intentionally created nuisance. Accordingly, the trial court did not err in granting summary disposition on the basis that the piles of snow did not constitute an intentional nuisance. . . . Affirmed.
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Attractive Nuisance
Nearly all states have adopted the common-law tort known as “attractive nuisance.” Sometimes called the “turntable doctrine,” this tort is so named for the dangerous condition of turntables at street car or train car terminals to which children were attracted and as a result suffered injuries to legs, feet, toes, and even death. The doctrine is considered to be an exception to the rule that a trespasser is generally owed no duty by the property owner.
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ATTRACTIVE NUISANCE “Attractive Nuisance” is the theory that the occupier or possessor of property may be held responsible for bodily harm to trespassing or intruding children caused by dangerous conditions or instrumentalities upon the premises. The expression “attractive nuisance” is also known in law as the “turntable” doctrine, “infant trespasser,” “dangerous instrumentality,” the “trap” or “implied invitation” theory and the “playground rule.”
in intermeddling with it or in coming within the area made dangerous by it, and (d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and (e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.71
The following Collomy case applies the attractive nuisance doctrine.
—16 A.L.R.3d 25 § 2[a]. 187356
The rule originated in in a case where a child was injured on a railroad turntable and liability was attributed to the railroad company for creating a condition that allured and enticed children onto premises that had dangerous conditions. In most of these attractive nuisance cases the children have not been older than 12 years of age, the “age of mischief,” according to the courts, being between ages of 6 and 12. However, some courts have rejected age limits of “tender years” so long as the child is too young to appreciate the danger involved.57 Examples of attractive nuisances are swimming pools,58 cleaning fluids,59 ice cream trucks,60 unguarded skylights, 61 fireworks found in a ballpark, 62 smoldering ashes, 63 municipal playground equipment, 64 vicious dogs, 65 lakes, 66 mean dogs, 67 school skylights, 68 and high-voltage towers.69 Of all the attractive nuisance cases, there appear very few school-related incidences.70 Most of the school cases that fall into this tort category are instead treated under the law of negligence. In summarizing the attractive nuisance area of the law, the Restatement of the Law-Torts, states: A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if (a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and (b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and (c) the children because of their youth do not discover the condition or realize the risk involved
Twelve-Year-Old Who Understood the Dangers Before Suffering Burns on School Grounds Cannot Recover Damages Under the Attractive Nuisance Doctrine
Collomy v. School Administrative District No. 55 Supreme Judicial Court of Maine, 1998. 710 A.2d 893.
WATHEN, Chief Justice. Plaintiff Rhonda Collomy, individually and as mother and next friend of Trevor Carter, appeals from a judgment entered in the Superior Court in favor of defendant School Administrative District No. 55 (the School District). Plaintiff argues on appeal that the court erred in failing to find a genuine issue of material fact whether Trevor was a trespasser; whether the School District owed Trevor a duty of care under the attractive nuisance doctrine; and whether the School District acted willfully, wantonly or recklessly. Finding no error, we affirm. The facts, viewed in the light most favorable to plaintiff, may be summarized as follows: On a Saturday morning in early June, Trevor Carter, a 12-year-old boy, and his 12-year-old friend, together with his friend’s younger siblings, were dropped off at the playground of Baldwin Elementary School by his friend’s father. Trevor believed that he had a little league game at the school that morning, but discovered later that the game was at a different school. While waiting, Trevor and his friend played soccer on the
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Attractive Nuisance
field and played on the jungle gym and the swings on the playground. After awhile, they became curious and entered a cinder block shed adjacent to the playground. The shed had two doors, a steel door secured by a large padlock, and a hollow core wooden door secured by an integrated lock and a smaller padlock and hasp. The boys entered through the wooden door that Trevor testified was unlocked and ajar. His friend found a can of fluid, later identified as duplicating fluid, took it outside and set it on fire. His friend and his friend’s siblings played with the fire, while Trevor sat on the swings and did not participate. When his friend wanted to go play soccer, Trevor was concerned about the fire catching onto the trees or something else and recommended that they stay until the fire was out. When the fire was out, Trevor went back into the building because it was cooler. His friend then took more of the duplicating fluid and this time half-filled the cinder block step in the doorway and tried to ignite it. The fluid did not ignite on the first try and his friend put more fluid into the block. Trevor told his friend not to do it and that he was going to get out of the building. When Trevor began to leave, his friend threw another match into the block, the fluid ignited, flashed back, and ignited Trevor’s clothes, causing burns to his lower extremities. Rhonda Collomy, individually and as mother of Trevor, filed a complaint against the School District alleging that the School District stored highly flammable substances in a negligently constructed, operated, or maintained storage shed on property adjacent to the playground and, as a direct and proximate result, plaintiff sustained injuries. After hearing, summary judgment was entered in favor of the School District and plaintiff appealed. We review the court’s “entry of a summary judgment for errors of law, viewing the evidence in the light most favorable to the party against whom the judgment was entered.” . . . Plaintiff first argues that there is a genuine issue of material fact whether Trevor was a trespasser. The duty owed to Trevor is dependent upon his legal status and the determination of his legal status is an issue of fact. A trespasser is defined as “a person who enters or remains upon land in the possession of another without a privilege to do so
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created by the possessor’s consent or otherwise.” Restatement (Second) of Torts § 329 (1965); . . . It is undisputed that the playground, the shed and the contents of the shed were in the possession of the School District and that Trevor entered the playground and the shed. It is also agreed that Trevor was not a trespasser on the playground, because children often played on the playground and fields when school was not in session. Even though it may be agreed that Trevor was an invitee and not a trespasser on the playground; however, that status applies “only while he is on the part of the land to which his invitation extends—or in other words, the part of the land upon which the possessor gives him reason to believe that his presence is desired for the purpose for which he has come.” Restatement (Second) of Torts, § 332, comment l (1965). For example, “where one enters a part of premises reserved for the use of the occupant and his employees and to which there was no express or implied invitation to go, there can be no recovery for resulting injury, even though he is an invitee to other parts of the premises.” . . . . . . The swings and monkey bars were on the premises for students to play on during school and the School District gave children, including Trevor, reason to believe that their presence was also permitted for the purpose of playing on the playground equipment when the school was not in session. The School District, however, used the shed to store equipment and materials and plaintiff introduced no evidence that the School District allowed the children to play in the building when school was in session or when it was not. Therefore, the court did not err in finding that plaintiff failed to raise a genuine issue of material fact whether Trevor was a trespasser when he entered the shed. Plaintiff next argues that, even if Trevor was a trespasser when he entered the cinder block shed, there is a genuine issue of material fact whether the School District owed him a duty under the attractive nuisance doctrine. . . . [W]e adopted the attractive nuisance doctrine as stated in Restatement (Second) of Torts § 339 (1965). We adopted the attractive nuisance doctrine with the caveat that we would strictly interpret the doctrine, . . . In affirming the court’s summary judgment in favor of the defendant, we focused on whether the child appreciated the risk
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at the time of the accident and noted one commentator’s statement that: [t]he child, because of his immaturity, either must not discover the condition or must not in fact appreciate the danger involved. Since the principal reason for the rule distinguishing trespassing children from trespassing adults is the inability of the child to protect himself, the courts have been quite firm in their insistence that if the child is fully aware of the condition, understands the risk which it carries, and is quite able to avoid it, he stands in no better position than an adult with similar knowledge and understanding. . . . This case also focuses on the third element, that is, whether Trevor appreciated the risk. We must consider at what point he should have appreciated the risk—when he entered the building the first time or when he entered the building the second time. Plaintiff focuses on the initial entry into the shed and argues that there is a genuine issue of material fact whether Trevor appreciated the risk of entering the cinder block shed and the dangers of the materials therein and that this issue is sufficient to deny summary judgment. Trevor testified that, before entering the building the first time, he thought it was okay to play on the playground, and that he thought it was okay to enter the building because it was unlocked. Trevor also testified that, at the time he saw the cans, he did not see that the cans had writing that said they were flammable, but that his friend told him about the labels after the accident. Viewing Trevor’s testimony in the light most favorable to him, there is an issue of fact whether he appreciated any risk when he entered the building the first time. Trevor’s understanding at the time of the first entry, however, is not material because he was not injured at that point in time. The determinative period of time for appreciating the risk was when Trevor chose to enter the building the second time, because this is when the accident occurred. Before entering the building the second time he had the knowledge (1) that there were flammable materials in the building and (2) that his friend had already ignited the materials once. He stated that he went back into the building because it was cooler. He acknowledged, however, that a teacher might ask him to leave. Asked why, he responded “because it’s not really that safe a place to be in.” Asked
why again, he responded “because of the flammable liquids.” Asked “and you knew that when you went back in,” he answered “right.” He also admitted that he knew fire could hurt you and burn you. He admitted that he knew it was dangerous to play with fire, but that he did not believe that his friend understood it was dangerous. He testified that he had observed the effects of flammable fluids when his friend threw the match in the first time. He also admitted that he understood it was dangerous and that someone could get hurt. He testified that he never touched the cans or matches. To the question “you were worried it would explode,” he responded, “right.” He testified that, when his friend poured more fluid into the step, he said, “I’m going to get up and get out,” and that when he started walking out, his friend threw a match and the fluid ignited. Even viewed in the light most favorable to plaintiff, the evidence unequivocally reveals that Trevor appreciated the dangers before reentering the building. Although Trevor clearly did not anticipate that his friend would throw a match onto the fluid while he was trying to leave the building, he did know that the fluid was in the building, that his friend would play with the fluid, that the fluid was flammable, and that the flammable fluid could hurt or burn him. Therefore, because plaintiff failed to generate a genuine issue concerning an indispensable element of the attractive nuisance doctrine, she was conclusively precluded from recovery under this doctrine. Thus the court did not err in granting the School District’s summary judgment on this theory of recovery. Because we determine that Trevor was a trespasser and was not within the attractive nuisance doctrine, the duty owed to Trevor is only a duty to refrain from wanton, willful or reckless acts of negligence. Even viewed in the light most favorable to the plaintiff, the School District’s acts of leaving flammable materials in the cinder block building on the playground, leaving the door unlocked, and failing to post warning signs on the property do not rise to the level of “wanton, willful or reckless behavior.” . . . Therefore, the court did not err in finding that plaintiff failed to generate a genuine issue of material fact whether the School District acted wantonly, willfully, or recklessly. The entry is: Judgment affirmed.
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Section 1983, Civil Rights Act Liability
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Section 1983, Civil Rights Act Liability
“Section 1983 is the primary vehicle for obtaining damages and equitable relief against state and local agencies and officials who violate the constitutional rights of a person.”72 An individual’s constitutional rights are protected through application of the Civil Rights Act of 1871, as codified in Section 1983 of Title 42 U.S.C. Thus, the “basic purpose” of a Section 1983 action for damages “is to compensate persons for injuries that are caused by deprivation of constitutional rights.”73 Under this statute, a denial of an individual’s constitutional or statutory rights can result in damages assessed by the court against the school board, individual school board member, administrator, or teacher, or against any government official or employee responsible for the denial. This Act had been virtually dormant for almost a hundred years when it was revived in the early 1960s in the Supreme Court case of Monroe v. Pape,74 at which time the Court applied the Act to actions against public officials. The law itself states: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.75
Congress enacted this law on April 20, 1871, after a month of debate, during which time it became clear that there was great sentiment toward providing legal redress against those southerners who repressed individual rights of southern blacks. The press at that time called the legislation the Southern-Outrage Repression Bill.76
“PERSONS” UNDER THE ACT As written, the law provides for both injunctive and monetary relief to be awarded by the federal courts. Offenders against whom action may be instituted are statutory persons—“persons” as the law is written. A person acting “under color of” law is an individual acting in an official capacity of the state, clothed with the power of the state, or one who
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is the “repository of state power.”77 Accordingly, an official can act under color of law even when her actions are contrary to law, and she can be held personally liable in damages for her violations of the Constitution.78 The U.S. Supreme Court has had difficulty in deciding exactly who a “person” is, whether it is a public board or an individual official or employee. In Monroe, the Court first held that Congress did not intend the word person to include municipalities or agencies of the government. Therefore, suits seeking relief under the Act were filed only against school officials and not against school districts as entities. The result was that from 1961 to 1978 school districts insured school officials against damages that may have been incurred by lawsuit in such cases, and the municipality was immune. On June 6, 1978, in Monell v. Department of Social Services of City of New York, 79 this all changed when the Supreme Court voted seven to two to overrule Monroe insofar as it provided immunity for municipalities. The Court, in so ruling, did not upset the interpretation of the respondeat superior doctrine that a public school district is not responsible for the wrongdoing of its employees, but it did say that the school district could be held liable under Section 1983 if it adopts an unconstitutional policy or acquiesces in an unconstitutional custom. Justice Brennan stated: We conclude, therefore, that a local government may not be sued for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under Section 1983.80
Monell therefore, taken in context with two other cases, Wood v. Strickland 81 and Carey v. Piphus,82 clearly permits courts to assess damages against either a governmental agency or individual officials of government if it or they suppress one’s civil rights, whether it be a student, teacher, or some other party. Wood established the potential liability of school board members for the denial of students’ due process rights, and Carey clarified the nature and extent of the damages that could be levied by the courts. In Carey, Justice Powell, writing for the Court, explained that there was a limitation to the damages that
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were possible under this kind of action. According to Powell, Section 1983 was not intended to provide purely punitive relief whereby the court would punish the wrongdoer for ill deeds, but instead the Act was designed to compensate the victim for the detriment and damage caused by the denial. Compensatory damages of this nature are quite difficult to prove, and the Supreme Court places this burden squarely on the shoulders of the plaintiff. In the absence of such proof, the individual is entitled to collect only nominal damages. As discussed in Chapter 3, in the Seminole Tribe of Florida v. Florida case, 83 the Eleventh Amendment prevents private parties from obtaining damages from a state government unless Congress clearly and unambiguously abrogates sovereign immunity or the state itself waives immunity. Congress did not clearly abrogate state sovereign immunity when it enacted Section 1983 in 1871. Although Section 1983 alone does not abrogate state Eleventh Amendment immunity, such immunity can be waived by specific enactments by Congress that work in tandem with Section 1983 to provide a remedy to specified constitutional violations. Such abrogation, however, must be prescribed in the substance of the legislation that specifically redresses the violation of a constitutional right for which Congress has valid reason to be concerned, such as the Individuals with Disabilities Education Act. Remember, however, that sovereign immunity protects only the state, state agencies, and other arms of the state, including public institutions of higher education. Perversely, however, Eleventh Amendment immunity has not yet been extended to local school districts.
SCHOOL BOARD LIABILITY UNDER SECTION 1983 As noted earlier, the Supreme Court in Monell held that municipalities cannot be liable under Section 1983 if the government itself does not cause the infliction of harm beyond the injury caused by one of the government’s employees. According to the Supreme Court, governmental liability can be imposed only when the injury is caused by “the execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy.”84
In Pembaur v. Cincinnati, 85 in 1986, the Supreme Court held that a school board cannot be held liable under Section 1983 unless there is actual or constructive knowledge that an employee of the board has denied plaintiffs their constitutional rights. The Fifth Circuit further clarified that by holding that a municipality must have an “underlying knowledge” of a custom or a policy that is violative of a citizen’s constitutional rights.86 The Fifth Circuit explained: Actual knowledge must be shown by such means as discussions at council meetings or receipt of written information. Constructive knowledge may be attributed to the governing body on the ground that it would have known of the violations if it had properly exercised its responsibilities, as, for example, the violations were so persistent and widespread that they were the subject of prolonged public discussion and a high degree of publicity.87
OFFICIAL NEGLIGENCE UNDER SECTION 1983 Even though the U.S. Supreme Court initially held that a civil remedy for negligence could be found under Section 1983,88 the Court later reversed itself, holding that a lack of due care by a state official could not be the basis for relief under Section 1983.89 Mere negligence or an omission causing injury cannot be used as the basis to invoke the protections of the statute. Thus, the so-called constitutional tort founded under Section 1983 has the important constraint of being inapplicable to cases of official negligence. The Supreme Court, however, has left open the question of liability if there is a callous or reckless disregard for plaintiffs’ rights and injury ensues. In applying this principle, the U.S. Court of Appeals, Eighth Circuit, in Rubek v. Barnhart90 found that parents seeking damages under Section 1983 could not prevail in an action for constitutional “negligence” against teachers and administrators for a violation of due process in administering corporal punishment to the plaintiff children. The court required plaintiffs to show that the defendants, in administering the corporal punishment, had demonstrated “a reckless disregard or deliberate indifference to plaintiff’s constitutional rights.”91 Thus, the prevailing view appears to be that a governmental entity will not be liable unless
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Constitutional Torts: Deliberate Indifference and State-Created Danger
there is shown a “deliberate indifference” for a child’s rights. For a school board to be liable, the plaintiff must bear the difficult burden of proving that constitutional rights were taken away as a result of overt official school district policy or custom. Moreover, the plaintiff must show that the board had knowledge of the policy or custom that caused the deprivation. The plaintiff must also show that the injury was caused by the board’s “callous indifference” to the plaintiff’s constitutional rights.92
INDIVIDUAL LIABILITY UNDER SECTION 1983 Under certain circumstances, an employee or an official of a school district may be found individually liable even though a school board may not be. The individual employee or official cannot be liable unless the plaintiff shows that the action violated a clearly established law and that the individual exhibited a “callous indifference” for the rights of the plaintiff.93 In Davis v. Scherer, the U.S. Supreme Court held: Officials are shielded from liability for civil damages insofar as their conduct does not violate the clearly established statutory or constitutional rights of which a reasonable person would have known at the time of the incident involved.94
Therefore, employees and officials, in their individual capacities, are immune from liability under Section 1983 unless they have exhibited a “callous indifference” to an individual’s constitutional rights and have demonstrated “a lack of objective good faith.”95 Horner has carefully summarized the law of liability as set forth in Section 1983 for both school boards and individuals: Indeed courts generally look at two basic elements in determining whether Section 1983 should be imposed upon governmental entities and their employees. With respect to the liability of the entity, courts will impose liability only if a state official acts in a “callously indifferent” manner toward the rights of individuals pursuant to governmental policy or custom. In essence, a state official must not only perform an outrageous action, but such actions must also be common within that particular governmental entity. Individual liability revolves around the “callous indifference” standard. If an employee acts with “callous
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indifference” toward the rights of an individual, he or she may be subject to liability in his or her individual capacity.96
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Constitutional Torts: Deliberate Indifference and State-Created Danger
Availability of the Section 1983 action for damages for violating an individual’s constitutional rights has evolved into a kind of constitutional tort. This type of tort is based on two theories: First, if the school district omits to act to protect a constitutional right to the degree that it is “deliberately indifferent,” then the possibility of a Section 1983 constitutional tort may be found. Second, if a school district violates its affirmative duty of care and protection and a student’s constitutional rights are violated by a “state-created danger,” then a school district may be subject to damages. If a school official disregards a constitutional deprivation of an individual right and does so with deliberate indifference, then a constitutional tort may have been committed for which damages may accrue.
CONSTITUTIONAL TORTS: STATECREATED DANGER DOCTRINE A governmental actor may violate the Due Process Clause by allowing a third party to harm a person in government custody, or by creating a particular danger to the victim. Bad decisions by the government are not violations unless they are arbitrary, with no legitimate reason for them. —Hunt v. Sycamore Community School District Such state-created danger may exist when the state takes a person into its custody and holds him there and fails to provide for his safety and well-being. 97 One can see how a school district’s special relationship with a child could possibly give rise to a constitutional duty that the school district should perform reasonably.98 Deliberate Indifference. Concerning the first of these constitutional torts, “deliberate indifference,” a Montana federal court has explained
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that a required relationship is necessary between the school’s “deliberate indifference” and the “state-created danger” for there to be liability to the school district. This court said that: To establish the deliberate indifference element of a claim for (school district) liability under § 1983 based on the state-created danger theory, plaintiff must show: (1) unusually serious risk of harm; (2) defendant’s actual knowledge of, or at least willful blindness to, that elevated risk; and (3) defendant’s failure to take obvious steps to address that known serious risk.99
This court further explained additional requisites needed to establish school district liability under § 1983, the plaintiff must show: (1) that plaintiff possessed a constitutional right of which he was deprived, (2) the school district had a policy, custom, or practice that was drawn into question, (3) such a policy amounted to deliberate indifference to the plaintiff’s constitutional right; and (4) that such policy was the moving force behind the constitutional violation.100
In defining “deliberate indifference,” the court said that, for purposes of § 1983, liability will occur when “the need for more or different action is so obvious, and inadequacy of current procedure so likely to result in violation of constitutional rights, that policymakers can reasonably be said to have been deliberately indifferent to need.” 101 Failure to adequately implement policy may be the basis for a violation. Or if the policy itself or its omission is the “moving force” behind the constitutional violation, then § 1983 liability may be imposed. In a Montana case, male students, as towel boys, set up a videotaping system with cameras and two-way mirrors in the girls’ locker room. The boys videotaped the girls in various stages of undress before and after physical education and sports events. The girls and parents sued the school district claiming that laxness regarding access to dressing rooms, liberal school policies toward access to buildings, and permitting males to be towel boys, combined to amount to a “moving force” behind the alleged constitutional violation.102 Moreover, the plaintiffs maintained that the school’s omissions amounted to deliberate indifference where the evidence indicated that a teacher had told the superintendent that the girls think someone is videotaping them and
he did not follow through to investigate. After reviewing the law and the facts, the federal court ruled for the school district. The court found that the plaintiffs’ allegations of the school’s lax policies and lack of control and supervision did not constitute the “moving force” violating the girls’ substantive due process rights, nor did the superintendent’s failure to investigate a rumor that he heard from a teacher. Neither rose to the level of deliberate indifference.103 State-Created Danger. A constitutional duty to protect a person may be imposed when state actors have affirmatively acted to create a danger to the plaintiff.104 This duty is the predicate for a “constitutional tort.” Liability under the “statecreated danger” theory of due process liability under § 1983 cannot be presumed without affirmative acts by the state which either create or increase the risk that an individual will be exposed to violence.105 There are three necessary conditions to satisfy the elements of a “state-created danger” claim under the Due Process Clause that a state actor affirmatively used his or her authority that made a person more vulnerable to danger than had the state not acted at all:106 (1) A state actor exercised his or her authority; (2) The state actor took an affirmative action; and (3) The act created a danger to the citizen or rendered the citizen more vulnerable to danger than if the state had not acted at all.107 Federal circuit courts have supplied the definition for state-created danger. In a § 1983 action, U.S. Court of Appeals, Third Circuit, denied relief to a student who claimed damages for violation of his substantive due process rights when he was punched in the eye and suffered traumatic hyphema of the eye and a fracture of his facial bone. The student’s claim was based on the “state-created danger” theory. In reviewing the law, the court said that a viable state-created danger claim rests on four salient elements: “First, the harm ultimately caused must have been foreseeable and fairly direct. Second, a state actor must have acted with a degree of culpability that shocks the conscience. Such culpability exceeds that of a state actor acting in willful disregard for plaintiff’s safety. Third, a special relationship must have existed between the state and the plaintiff such that ‘the plaintiff was a foreseeable victim of the defendant’s acts,’ or is a
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Constitutional Torts: Deliberate Indifference and State-Created Danger
‘member of a discrete class of persons subjected to the potential harm brought about by the state’s actions,’ as opposed to a member of the public in general. Fourth, a state actor must have ‘used his or her authority in a way that created a danger to the citizen or that rendered the citizen more vulnerable to danger than had the state not acted at all.’ ” Regarding the fourth element, the court stressed that the state must misuse its authority, rather than merely omit to use its authority. In other words, the state-created danger doctrine has its basis in “affirmative” acts that establish a condition where the plaintiff is exposed to increased danger.108 In spite of the rigors of these requirements of law and the development of the stringent rules that govern § 1983 damage claims, this constitutional tort of state-created danger appears to be gaining increasing momentum as an instrument of choice for damages in school-related injuries to students.
School Board Members Have Qualified Immunity, but May Be Liable, as Individuals, for Damages Under Section 1983 of the Civil Rights Act of 1871
Wood v. Strickland Supreme Court of the United States, 1975. 420 U.S. 308, 95 S. Ct. 992.
Mr. Justice WHITE delivered the opinion of the Court. Respondents Peggy Strickland and Virginia Crain brought this lawsuit against petitioners, who were members of the school board at the time in question, two school administrators, and the Special School District of Mena, Ark., purporting to assert a cause of action under 42 U.S.C.A. § 1983, and claiming that their federal constitutional rights to due process were infringed under color of state law by their expulsion from the Mena Public High School on the grounds of their violation of a school regulation prohibiting the use or possession of intoxicating beverages at school or school activities. The complaint
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as amended prayed for compensatory and punitive damages against all petitioners, injunctive relief allowing respondents to resume attendance, preventing petitioners from imposing any sanctions as a result of the expulsion, and restraining enforcement of the challenged regulation, declaratory relief as to the constitutional invalidity of the regulation, and expunction of any record of their expulsion. . . . The violation of the school regulation prohibiting the use or possession of intoxicating beverages at school or school activities with which respondents were charged concerned their “spiking” of the punch served at a meeting of an extracurricular school organization attended by parents and students. At the time in question, respondents were sixteen years old and were in the tenth grade. The relevant facts begin with their discovery that the punch had not been prepared for the meeting as previously planned. The girls then agreed to “spike” it. Since the county in which the school is located is “dry,” respondents and a third girl drove across the state border into Oklahoma and purchased two twelve-ounce bottles of “Right Time,” a malt liquor. They then bought six ten-ounce bottles of a soft drink, and after having mixed the contents of the eight bottles in an empty milk carton, returned to school. Prior to the meeting, the girls experienced second thoughts about the wisdom of their prank, but by then they were caught up in the force of events and the intervention of other girls prevented them from disposing of the illicit punch. The punch was served at the meeting, without apparent effect. . . . The board voted to expel the girls from school for the remainder of the semester, a period of approximately three months. The board subsequently agreed to hold another meeting on the matter, and one was held approximately two weeks after the first meeting. The girls, their parents, and their counsel attended this session. The board began with a reading of a written statement of facts as it had found them. The girls admitted mixing the malt liquor into the punch with the intent of “spiking” it, but asked the board to forgo its rule punishing such violations by such substantial suspensions. . . . The board voted not to change its policy and, as before, to expel the girls for the remainder of the semester.
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The District Court instructed the jury that a decision for respondents had to be premised upon a finding that petitioners acted with malice in expelling them and defined “malice” as meaning “ill will against a person—a wrongful act done intentionally without just cause or excuse.” In ruling for petitioners after the jury had been unable to agree, the District Court found “as a matter of law” that there was no evidence from which malice could be inferred. The Court of Appeals, however, viewed both the instruction and the decision of the District Court as being erroneous. Specific intent to harm wrongfully, it held, was not a requirement for the recovery of damages. Instead, “[i]t need only be established that the defendants did not, in the light of all the circumstances, act in good faith. The test is an objective, rather than a subjective one.” Petitioners as members of the school board assert here, as they did below, an absolute immunity from liability under § 1983 and at the very least seek to reinstate the judgment of the District Court. If they are correct and the District Court’s dismissal should be sustained, we need go no further in this case. Moreover, the immunity question involves the construction of a federal statute, and our practice is to deal with possibly dispositive statutory issues before reaching questions turning on the construction of the Constitution. . . . We essentially sustain the position of the Court of Appeals with respect to the immunity issue. The nature of the immunity from awards of damages under § 1983 available to school administrators and school board members is not a question which the lower federal courts have answered with a single voice. There is general agreement on the existence of a “good faith” immunity, but the courts have either emphasized different factors as elements of good faith or have not given specific content to the good-faith standard. . . . Common law tradition, recognized in our prior decisions, and strong public policy reasons also lead to a construction of § 1983 extending a qualified good-faith immunity to school board members from liability for damages under that section. Although there have been differing emphases and formulations of the common law
immunity of public school officials in cases of student expulsion or suspension, state courts have generally recognized that such officers should be protected from tort liability under state law for all good-faith non-malicious action taken to fulfill their official duties. As the facts of this case reveal, school board members function at different times in the nature of legislators and adjudicators in the school disciplinary process. Each of these functions necessarily involves the exercise of discretion, the weighing of many factors, and the formulation of long-term policy. “Like legislators and judges, these officers are entitled to rely on traditional sources for the factual information on which they decide and act.” . . . As with executive officers faced with instances of civil disorder, school officials, confronted with school behavior causing or threatening disruption, also have an “obvious need for prompt action, and decisions must be made in reliance on factual information supplied by others.” Liability for damages for every action which is found subsequently to have been violative of a school’s constitutional rights and to have caused compensable injury would unfairly impose upon the school decision-maker the burden of mistakes made in good faith in the course of exercising his discretion within the scope of his official duties. School board members, among other duties, must judge whether there have been violations of school regulations and, if so, the appropriate sanctions for the violations. Denying any measure of immunity in these circumstances “would contribute not to principled and fearless decision-making but to intimidation.” . . . The imposition of monetary costs for mistakes which were not unreasonable in the light of all the circumstances would undoubtedly deter even the most conscientious school decision-maker from exercising his judgment independently, forcefully, and in a manner best serving the longterm interest of the school and the students. The most capable candidates for school board positions might be deterred from seeking office if heavy burdens upon their private resources from monetary liability were a likely prospect during their tenure. These considerations have undoubtedly played a prime role in the development by state
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Constitutional Torts: Deliberate Indifference and State-Created Danger
courts of a qualified immunity protecting school officials from liability for damages in lawsuits claiming improper suspensions or expulsions. But at the same time, the judgment implicit in this common-law development is that absolute immunity would not be justified since it would not sufficiently increase the ability of school officials to exercise their discretion in a forthright manner to warrant the absence of a remedy for students subjected to intentional or otherwise inexcusable deprivations. . . . We think there must be a degree of immunity if the work of the schools is to go forward; and, however worded, the immunity must be such that public school officials understand that action taken in the good-faith fulfillment of their responsibilities and within the bounds of reason under all the circumstances will not be punished and that they need not exercise their discretion with undue timidity. . . . The disagreement between the Court of Appeals and the District Court over the immunity standard in this case has been put in terms of an “objective” versus a “subjective” test of good faith. As we see it, the appropriate standard necessarily contains elements of both. The official himself must be acting sincerely and with a belief that he is doing right, but an act violating a student’s constitutional rights can be no more justified by ignorance or disregard of settled, indisputable law on the part of one entrusted with supervision of students’ daily lives than by the presence of actual malice. To be entitled to a special exemption from the categorical remedial language of § 1983 in a case in which his action violated a student’s constitutional rights, a school board member, who has voluntarily undertaken the task of supervising the operation of the school and the activities of the students, must be held to a standard of conduct based not only on permissible intentions, but also on knowledge of the basic, unquestioned constitutional rights of his charges. Such a standard imposes neither an unfair burden upon a person assuming a responsible public office requiring a high degree of intelligence and judgment for the proper fulfillment of its duties, nor an unwarranted burden in light of the value which civil rights have in our legal system. Any lesser standard would deny much of the promise of § 1983.
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Therefore, in the specific context of school discipline, we hold that a school board member is not immune from liability for damages under § 1983 if he knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the school affected, or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury to the student. That is not to say that school board members are “charged with predicting the future course of constitutional law.” . . . A compensatory award will be appropriate only if the school board member has acted with such an impermissible motivation or with such disregard of the student’s clearly established constitutional rights that his action cannot reasonably be characterized as being in good faith. The Court of Appeals based upon its review of the facts but without the benefit of the transcript of the testimony given at the four-day trial to the jury in the District Court, found that the board had made its decision to expel the girls on the basis of no evidence that the school regulation had been violated: To justify the suspension, it was necessary for the Board to establish that the students possessed or used an “intoxicating” beverage at a school-sponsored activity. No evidence was presented at either meeting to establish the alcoholic content of the liquid brought to the campus. Moreover, the Board made no finding that the liquid was intoxicating. The only evidence as to the nature of the drink was that it was supplied by the girls, and it was clear that they did not know whether the beverage was intoxicating or not. 485 F.2d at 190.
. . . In its statement of facts issued prior to the onset of this litigation, the school board expressed its construction of the regulation by finding that the girls had brought an “alcoholic beverage” onto school premises. The girls themselves admitted knowing at the time of the incident that they were doing something wrong which might be punished. In light of this evidence, the Court of Appeals was ill advised to supplant the interpretation of the regulation of those officers who adopted it and are entrusted with its enforcement. . . . When the regulation is construed to prohibit the use and possession of beverages containing
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alcohol, there was no absence of evidence before the school board to prove the charge against respondents. The girls had admitted that they intended to “spike” the punch and that they had mixed malt liquor into the punch that was served. . . . Given the fact that there was evidence supporting the charge against respondents, the contrary judgment of the Court of Appeals is improvident. It is not the role of the federal courts to set aside decisions of school administrators which the court may view as lacking a basis in wisdom and compassion. Public high school students do have substantive and procedural rights while at school. . . . But § 1983 does not extend the right to relitigate in federal court evidentiary questions arising in school disciplinary proceedings or the proper construction of school regulations. The system of public education that has evolved in this Nation relies necessarily upon the discretion and judgment of school administrators and school board members, and § 1983 was not intended to be a vehicle for federal-court correction of errors in the exercise of that discretion which do not rise to the level of violations of specific constitutional guarantees. . . . Respondents have argued here that there was a procedural due process violation which also supports the result reached by the Court of Appeals. . . . But because the District Court did not discuss it, and the Court of Appeals did not decide it, it would be preferable to have the Court of Appeals consider the issue in the first instance. The judgment of the Court of Appeals is vacated and the case remanded for further proceedings consistent with this opinion. So ordered.
CASE NOTES 1. Absolute Immunity Under 1983. The Supreme Court, in a series of cases, determined that absolute immunity from liability under § 1983 of the Civil Rights Act of 1871 is available as a defense for criminal prosecutors in initiating and presenting the state’s case, Imbler v. Pachtman, 424 U.S. 409, 96 S. Ct. 984 (1976), and for state legislators, Tenney v. Brandhove, 341 U.S. 367, 71 S. Ct. 783 (1951). 2. Qualified Immunity Under § 1983. The defense of qualified immunity is available only to
an official sued in his individual or personal capacity, under § 1983, and not to an official sued in his official capacity. For example, as noted earlier in Chapter 9, a school official searching a student is entitled to qualified immunity where “clearly established” law does not show that the search violated the Fourth Amendment. Where the law is clear, however, § 1983 damages may be invoked against the offending school administrator. Safford v. Unified School District No. 1 v. Redding, 129 S. Ct. 2633, 174 L. Ed. 2d 354 (2009). 3. Clearly Established. Whether the qualified immunity of a school official can be extinguished is dependent on whether the official transgresses “clearly established” U.S. constitutional law. In determining whether the law is “clearly established,” a court must decide whether the boundaries of the individual constitutional right at the time of the alleged violation were sufficiently clear, in light of preexisting law, that a reasonable person in the school official’s position would have understood that his conduct violated the plaintiff’s constitutional right. Brown v. Hot, Sexy and Safer Productions, Inc., 68 F.3d 525 (1st Cir. 1995). See also: Martinez v. Cui, 608 F.3d 54 (1st Cir. (2010). With regard to whether the boundaries or contours of the preexisting law is clear, it must be taken into consideration whether in matters of speech of a school employee, for example, the speech was exercised as a matter of “public concern” (Pickering), was purely a “private concern” (Connick) or was made “pursuant to duty” (Garcetti). Not a simple proposition. The U.S. Court of Appeals, Third Circuit, 2005, in addressing such a matter, held that school officials were not entitled to qualified immunity for a school nurse’s retaliation claim based on the allegation that the school officials had given her an unsatisfactory employment rating for raising matters of public concern. According to the court, the law was clearly established that the nurse’s speech advocating on behalf of disabled students and objecting to pesticide spraying at school by an unqualified individual was undoubtedly protected speech, and the school officials were unable to enunciate a sufficient countervailing public school interest. McGreevy v. Stroup, 413 F.3d 359 (3rd Cir. 2005). See also: Evans-Marshall v. Board of Education of Tipp City Exempted Village School District, 428 F.3d 223 (6th Cir. 2005).
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Constitutional Torts: Deliberate Indifference and State-Created Danger
Section 1983, a Claim for Denial of Substantive Due Process, Is Not a Remedy for Death of a Child on Band Field Trip—Due Process Clause Is Not a “Font of Tort Law”
Lee v. Pine Bluff School District United States Court of Appeals, Eighth Circuit, 2007. 472 F.3d 1026.
COLLOTON, Circuit Judge. Sharon Lee appeals the decision of the district court dismissing her lawsuit against the Pine Bluff School District and Darrell McField, an employee of the school district. We affirm. This case involves the tragic death of Courtney Fisher, Lee’s son and a former student in the Pine Bluff School District. According to Lee’s complaint, in January 2004, Courtney was an eighth-grade student at Jack Robey Junior High School in Pine Bluff, and a member of the school band. McField was the director of the band, and he supervised band activities and trips. The complaint alleges that the band and its members were invited to participate in a competition in Atlanta, Georgia, on or about January 16–20, 2004, and Lee permitted Courtney to make the trip to Atlanta. Lee completed a “medical form,” which listed Courtney’s grandmother as an “emergency contact person,” and which also provided a name and telephone number for the family doctor, and a health insurance policy number. Lee checked a box stating that Courtney had no physical problems that would prohibit exercise, and then signed her name to a statement that “I give my consent to the band director to secure treatment at the best medical facility available if an injury does occur.” The complaint alleged that because parents and teachers were chaperones on the tour, Lee was confident that Courtney would be provided “reasonable care and supervision,” and that Courtney’s grandmother would be contacted immediately “in the event an emergency occurred and Courtney became ill or injured.”
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According to the complaint, Courtney became ill on Saturday, January 17, after arriving in Atlanta. McField held Courtney out of the band competition on that date due to the severity of the symptoms, and “for the duration of the trip, Courtney was confined to a bed in his hotel room, making occasional trips to the bathroom to vomit.” The complaint asserts that Courtney could not eat, and that his only source of sustenance was juice and water. Lee alleges that although the adults recognized that Courtney was extremely ill, and did not allow him to participate in functions or sightseeing excursions, they failed to seek medical attention, and did not notify his family or physician of the illness. The complaint alleges that when the band returned home in the early morning of January 20, Lee drove Courtney directly to a regional medical center, where medical personnel determined that he should be transported to a children’s hospital in Little Rock. Courtney suffered cardiac arrest upon his admission to the hospital, and he died on January 21. The death was attributed to undiagnosed diabetes. Lee’s complaint alleges that Courtney’s death could have been prevented if the chaperones, including McField, had sought medical care for Courtney. Lee brought several state-law claims of negligence against McField and the school district, and also included an allegation, read generously, that the Pine Bluff School District and McField are liable under 42 U.S.C. § 1983 for violating Courtney’s constitutional rights. The constitutional claim asserted that based on the consent form signed by Lee, McField and other representatives of the school district assumed “care, custody, and control” of Courtney, and had a corresponding duty to care for his medical needs. The complaint asserts that these state officials were “deliberately indifferent” to Courtney’s medical needs, and “willfully and deliberately” failed to provide adequate care. Lee alleges that the inaction of these state actors would “shock the consc[ience]” of the court. The district court dismissed the constitutional claim with prejudice, holding that “to assume federal jurisdiction over this case would require the Court to disregard the admonition in Dorothy J. [v. Little Rock Sch. Dist., 7 F.3d 729 (8th Cir. 1993)], that common law torts should not be converted into constitutional violations merely
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because the actor was employed by a subdivision of the state.” The Due Process Clause of the Fourteenth Amendment is not a “font of tort law.” Paul v. Davis, 424 U.S. 693, 701, 96 S. Ct. 1155 (1976). The Supreme Court has written that neither the text nor the history of the Clause supports the proposition that the State must “guarantee certain minimal levels of safety and security.” DeShaney v. Winnebago County Dept. of Social Servs., 489 U.S. 189, 195–96, 109 S. Ct. 998, (1989). The Due Process Clause is principally a restraint on the power of government to act, and it “generally confer[s] no affirmative right to government aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual.” In “certain limited circumstances,” however, when the State restrains an individual’s liberty “through incarceration, institutionalization, or other similar restraint,” the Constitution does impose a corresponding duty on the State “to assume some responsibility for [the individual’s] safety and general well-being,” because the State has rendered the person unable to care for himself. The substantive component of the Due Process Clause, for example, requires a State to provide involuntarily committed mental patients with such services as are necessary to ensure their “reasonable safety,” and to provide suspects in police custody with medical care required by injuries suffered during their apprehension. The district court dismissed Lee’s constitutional claim against the Pine Bluff School District without delving into these principles, because the complaint alleged no policy or custom of the district that caused an alleged constitutional violation. We agree with this conclusion. It is well settled that a municipality may not be found liable under § 1983 “unless action pursuant to official municipal policy of some nature caused a constitutional tort.” A school district cannot be held liable under § 1983 on a respondeat superior theory, i.e., simply because it employs a tortfeasor. Lee’s complaint alleged no unconstitutional policy of the Pine Bluff School District, and it asserted no widespread unconstitutional practices that might constitute a “custom or usage with the force of law.” Accordingly, the district court properly dismissed Lee’s constitutional claim against the school district.
Whether McField, the band director, may be liable under § 1983 does require consideration of whether the complaint identifies one of the “limited circumstances” in which a state official may have a constitutional duty to attend to the medical needs of a citizen. As noted, DeShaney defined those circumstances as situations in which the State restrains an individual’s liberty “through incarceration, institutionalization, or other similar restraint.” We conclude that the scenario alleged here does not meet the stringent requirements for substantive due process liability. We previously have considered whether compulsory attendance at public schools places a student within the limited category of individuals to whom the State owes a special duty of care. In Dorothy J., we joined three other circuits in holding that “state-mandated school attendance does not entail so restrictive a custodial relationship as to impose upon the State the same duty to protect it owes to prison inmates, or to the involuntarily institutionalized.” In Dorothy J., therefore, we held that school officials did not have a constitutional duty to protect a mentally retarded student from violent acts of another student. . . . Not long after Dorothy J., the Supreme Court indicated agreement with our holding, saying “we do not, of course, suggest that public schools as a general matter have such a degree of control over children as to give rise to a ‘duty to protect.’ ” Vernonia School District v. Acton. . . . Given that even mandatory school attendance generally does not give rise to a constitutional duty of care that could trigger liability based on substantive due process, it is not surprising that the weight of authority also holds that school officials have no such duty with respect to students participating in voluntary school-related activities that are not required by state law. For if a citizen voluntarily exercises his liberty to enter into the custody of a state official or to participate in a state-sponsored activity, it is difficult to conclude that the State has deprived the citizen of liberty. . . . Applying the principles articulated in DeShaney and Dorothy J., we hold that Courtney likewise was not within the limited class of persons to whom the State owes a constitutional duty to provide some degree of medical care. The complaint makes no allegation that the band trip was compulsory and, indeed, acknowledges that Courtney’s mother
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Eleventh Amendment Immunity and Local School Districts
voluntarily consented to the student’s participation. There is no assertion that Courtney was prohibited from leaving the band activity at any time if, for example, his mother or grandmother arranged for him to be picked up in Atlanta. Lee does not allege that McField or any chaperone denied Courtney an opportunity to contact his mother or grandmother by telephone, or that anyone prevented Courtney’s family from communicating with him at the hotel during the four-day excursion. There is no claim that Courtney’s voluntary participation evolved into an involuntary commitment during the course of the trip. We acknowledge Lee’s allegations that she was confident, based on her completion of the medical form and the presence of adult chaperones, that the school district would provide Courtney with reasonable care and supervision, and that McField was well aware that Courtney became ill during the stay in Atlanta. In a common-law tort action, these factors might well support Lee’s claim that McField was negligent. DeShaney makes clear, however, that the State’s constitutional duty to protect or care for an individual “arises not from the State’s knowledge of the individual’s predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf.” As with compulsory public school attendance in Dorothy J., we cannot say that voluntary participation in an out-of-town extracurricular activity is analogous to confinement in a prison or mental institution, such that the Constitution imposes on state officials an affirmative duty to care for individuals who are participating in the event. DeShaney recognized that in tragic cases like this one, “judges and lawyers, like other humans,” are moved by natural sympathy to try to compensate a mother for her loss, but that the Fourteenth Amendment was not designed to provide relief in all cases where the State’s functionaries fail to take action that might have averted a serious harm. The constitutional duties derived from substantive due process analysis are carefully circumscribed, and the events alleged here do not implicate the limited circumstances in which the Constitution obligates a State to care for an individual’s medical needs. The State of Arkansas, of course, may fashion a system of tort liability that would hold school officials accountable for negligence or deliberate
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indifference leading to the death of a student on a school-sponsored trip. The parties have disputed whether a cause of action against school officials is available under Arkansas law on the facts of this case, and that claim remains available for Lee to pursue in the Arkansas courts. For the foregoing reasons, the judgment of the district court is affirmed.
CASE NOTES 1. The U.S. Court of Appeals, Sixth Circuit, has explained that in order to recover damages under § 1983 for violation of a substantive due process constitutional right, as explained previously, under the “state-created danger” theory, three important requirements must be met: First, an affirmative act must have transpired that created or increased the risk of harm; second, a special danger must have been created for the victim that is greater and distinguishable from the public at large; and, third, there must exist a requisite degree of school district (state) culpability. Where a first-grade boy brought a gun to school and shot and killed a girl classmate when the teacher had departed the room, but was about 27 feet away, the federal court ruled that there was no school district or teacher liability under § 1983. The fact that the teacher had left the room unsupervised was not an “affirmative act” that created or increased the risk. The teacher was not “deliberately indifferent,” and there was no demonstration of the requisite degree of “culpability” to incur liability. McQueen v. Beecher Community Schools, 433 F.3d 460 (6th Cir. 2006). 2. A school district is not liable for a constitutional violation, “a constitutional tort,” unless it can be shown that the school district had an official policy or custom that was the “moving force” leading to harm of the student. Rivera v. Houston Independent School District, 349 F.3d 244 (5th Cir. 2003).
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Eleventh Amendment Immunity and Local School Districts
Does Eleventh Amendment immunity extend to local school districts? As observed earlier in this text (Chapter 4), local school districts are actually
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state agencies; local school board members are legally state officials; and locally derived funds are, in fact, state funds. Because this is generally true, it would seem logical that Eleventh Amendment immunity (see Chapter 3) should extend to local school districts as agencies of the state. However, this conclusion has run afoul of the practical problems that would ensue if all education treasuries, state and local, were declared immune from suits by private citizens. The Supreme Court has therefore apparently concluded that the Eleventh Amendment requires a different test as to immunity for the state versus local school districts. The U.S. Supreme Court held, in Mt. Healthy, that the Eleventh Amendment does not necessarily apply to “counties and municipal corporations.”109 The Court has, however, concluded that the Eleventh Amendment bars suit against county officials if the resulting judgment would effectively constitute a judgment against the state’s treasury itself.110 The question as to the local nature of school districts, however, is far from being clearly decided. The Supreme Court set a precedent in Mt. Healthy that has caused considerable confusion and is not likely to be resolved soon. In Mt. Healthy, the Court took the position that local school boards in Ohio are more like a “county or city” than they are like “an arm of the state.” This conclusion is, of course, contrary to the prevailing view of state and federal precedents on the subject. In maintaining that local school districts are not state agencies in Ohio, the Supreme Court perused the Ohio statutes and concluded that the “state” does not include “political subdivisions” and that local school districts fall within the category of “political subdivisions.” The Court further noted that local school boards can levy taxes and issue bonds and are thereby local instead of state agencies. In so surmising, the Supreme Court ignored the Ohio Constitution, which clearly places the responsibility for the provision of education in its entirety on the state legislature, not the locality.111 Regardless, the Supreme Court held in Mt. Healthy that a school board in Ohio is a local agency, distinct from a state agency, and is thereby not entitled to Eleventh Amendment immunity. This demarcation of immunity between state and local
agencies is consistent with the Supreme Court’s rulings in Monell112 and Pugh,113 which did not distinguish public schools from other local governmental agencies. These precedents have left the lower courts with little guidance in attempting to determine whether school districts are state or local agencies for Eleventh Amendment purposes. In applying the Mt. Healthy rationale to Louisiana, the U.S. Court of Appeals for the Fifth Circuit concluded that school parish boards in Louisiana are “local independent agents not shielded” by Eleventh Amendment immunity. The U.S. Court of Appeals for the Tenth Circuit has held that local school boards in New Mexico are not arms of the state and therefore enjoy Eleventh Amendment immunity.114 In Duke v. Grady Municipal Schools,115 the U.S. Court of Appeals, Tenth Circuit, relied heavily on Daddow v. Carlsbad Municipal School District,116 wherein the New Mexico Supreme Court held that a school district and a board of education and its members are not absolutely immune from suit under § 1983. Significantly, this court found that a local school board is not an “arm of the state” entitled to Eleventh Amendment immunity and can be sued under § 1983. The court reasoned that local boards do not benefit from state Eleventh Amendment immunity based on the facts that (a) local school boards are statutorily defined as local public bodies, (b) local school boards have significant political and financial autonomy, and (c) local school boards operate like other local political subdivisions of the state. The court further concluded in its “arm of the state” analysis, for purposes of § 1983 actions, that local board members are elected by popular vote from counties and precincts and that school boards acquire and dispose of property and have capacity to sue and be sued. All of these aspects lead to the conclusion that local school boards are local and not state entities. The U.S. Court of Appeals in Duke found the reasoning of the New Mexico Supreme Court in Daddow to be compelling in its decision to hold that local school districts are not “arms of the state” and are not entitled to Eleventh Amendment immunity. The New Mexico Supreme Court in Daddow further explained the § 1983 liability of localities and, in so doing, provided what is probably the best guide to the status of local school district
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Summation of Case Law
liability in view of the Eleventh Amendment restrictions. This court was unequivocal in holding that local school districts are not immune from liability under the Eleventh Amendment and may be held liable for damages under § 1983. Several conclusions can be drawn from this line of precedents. The foremost is that the Eleventh Amendment is a viable constitutional restraint on the judiciary, preserving immune status for state government unless Congress specifically and unequivocally abrogates it through the enforcement provision, § 5, of the Fourteenth Amendment. Where relief is granted, it cannot be in the form of retroactive monetary damages taken from the state treasury. Whether the treasuries of local school boards are similarly immune is a matter of application of the Supreme Court’s criteria to determine immunity status. The Mt. Healthy criteria117 are: ■ ■ ■ ■
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whether state statutes and case law characterize the local school district as an arm of the state; the source of funds to operate the schools; the degree of autonomy enjoyed by the school district; whether the school district is concerned primarily with local, rather than statewide, problems; whether the school district has authority to sue and be sued in its own name; and whether the school district has the right to hold and use property.118
These criteria will, of necessity, be applied by the courts in each case where Eleventh Amendment immunity is raised as a defense by local school districts.
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Summation of Case Law
Sovereign and Governmental Immunity 1. Sovereign immunity is a common-law concept recognized as an inherent attribute of the state. 2. “Governmental immunity” is public policy derived from the traditional doctrine of sovereign immunity that limits imposition of tort liability on a government agency. The premise is that courts should not be called upon to pass judgment on policy decisions made by members of coordinate branches of government in the context of tort actions because
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such actions furnish an inadequate crucible for testing the merits of social, political, or economic policy. 3. A state agency is entitled to immunity from tort liability to the extent that it is performing a governmental—as opposed to a proprietary—function. 4. Factors to be considered when deciding if a public employee is entitled to benefits of sovereign immunity include: (1) nature of function employee performs; (2) extent of the governmental entity’s interest in involvement in function; (3) degree of control and direction exercised by the governmental entity over employee; and (4) whether the alleged wrongful act involved the exercise of judgment and discretion. Official Immunity 1. “Official immunity” is immunity from tort liability afforded to public officers and employees for acts performed in the exercise of their discretionary functions. It rests not on the status or title of the officer or employee, but on the function performed. 2. When an officer or employee of a governmental agency is sued in his representative capacity, the officer’s or employee’s actions are afforded the same immunity, if any, to which the agency, itself, would be entitled. 3. Qualified official immunity applies to the negligent performance by a public officer or employee for (1) discretionary acts or functions involving the exercise of discretion, judgment, or personal deliberation and decision; (2) decisions made in good faith; and (3) decisions made within the scope of the officer’s or employee’s authority. 4. A public officer or employee is afforded no immunity from tort liability for the negligent performance of a ministerial act. A ministerial act is one that requires only obedience to the orders of others; with such, the officer’s duty is absolute, certain, and imperative. 5. In the context of qualified immunity, bad faith can be predicated on a violation of constitutional, statutory, or other clearly established rights which a person in the public employee’s position presumptively would have known was afforded to a person in the plaintiff’s position.
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Immunity for Discretionary Acts
Constitutional Torts Damages Under § 1983
1. A public body that owes a particular duty of care has wide policy discretion in choosing the means by which to carry out that duty; however, the range of permissible choices does not include the choice of not exercising care. 2. Normally, choice within a permissible range, in order to qualify for statutory discretionary immunity, is one that has been made by a supervisor of a policy-making body. However, the choice to follow or not to follow a predetermined policy in the face of a particular set of facts involving safety of a particular individual normally is not a “discretionary policy choice” entitled to statutory immunity. 3. A two-step test exists for determining whether a challenged action falls within “discretionary” function: (1) whether the challenged conduct involves an element of choice or discretion; and (2) if discretionary judgment is involved, whether the decision or course of action is driven by public policy concerns grounded on social, economic or political considerations.
1. Public school officials must have qualified immunity from damage suits under the Civil Rights Act if the work of the schools is to go forward. However worded, the immunity must be such that school officials understand that an action taken in the good faith fulfillment of their responsibilities and within the bounds of reason will not be punished and that they need not exercise their discretion with undue timidity. 2. Even though on the basis of common-law tradition and public policy school officials are entitled to a qualified good faith immunity from liability for damages under § 1983 of the Civil Rights Act, they are not immune from such liability if they knew or reasonably should have known that the action they took within their sphere of official responsibility would violate the constitutional rights of the person affected. A compensatory award is appropriate only if the school officials acted with such an impermissible motivation or with such disregard of a student’s clearly established constitutional rights that the officials’ actions could not reasonably be characterized as taken in good faith.
Liability Insurance 1. If liability insurance coverage is obtained by a government entity, then the government entity waives its sovereign immunity to the extent of such insurance coverage. 2. Where the plain terms of a government entity’s insurance policy provide that there is no coverage for a particular claim, the policy does not create a waiver of sovereign immunity as to that claim. Invitees and Licensees 1. A holder of a complimentary pass to a high school football game is an invitee on school premises, but not a licensee. As an invitee the person is owed the duty of reasonable care by the school district. 2. Where one enters a part of premises reserved for the use of the occupant and its employees, and to which there was no express or implied invitation to go, there can be no recovery for resulting injury, even though the person who enters is an invitee to other parts of the premises.
Constitutional Torts: State-Created Danger 1. A governmental actor may violate the Due Process Clause by allowing a third party to harm a person in government custody, or by creating a particular danger to the victim. 2. Liability under the “state-created danger” theory of due process under § 1983 is predicated upon affirmative acts by the state which either create or increase the risk that an individual will be exposed to by third party acts of violence. 3. Liability of supervisors under § 1983 cannot be based solely on the right to control employees or on simple awareness of employees’ misconduct. 4. Under the “state-created danger” doctrine, bad decisions by the government are not due process violations unless they are arbitrary, meaning that they are taken for no legitimate reason. 5. A supervisory official’s failure to supervise, control, or train an offending individual is
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Research Aids
not grounds for supervisory liability under § 1983 unless the supervisor either encouraged the specific incident of misconduct or in some other way directly participated in it. At a minimum, a plaintiff must show that the supervisor at least implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the offending person or persons. 6. Under the “state-created danger” doctrine, where a substantive due process claim arises out of a governmental actor’s attempt to discharge duties which are required by law or public necessity, generally the government’s action is not arbitrary, in violation of the Due Process Clause, even if the actor was imprudent in choosing one legitimate goal over another. 7. Under the “state-created danger” doctrine, which is a viable substantive due process claim, a governmental actor can be held responsible for an injury committed by a private person if: (1) an affirmative act by the governmental actor either created or increased the risk that the plaintiff would be exposed to by the injurious conduct of the private person, (2) the governmental actor did especially endanger the plaintiff, and (3) the governmental actor had the requisite degree of culpability. Eleventh Amendment Immunity 1. Eleventh Amendment immunity extends only to states and governmental entities that are arms of the state. 2. The determination that an agency is an arm of the state and enjoys Eleventh Amendment immunity from suit in federal court requires consideration of state statutes and case law that characterize state agency and involves several attendant considerations: (1) the source of funds of the agency, (2) the degree of local autonomy enjoyed by the agency, (3) the scope of problems concerning agency, (4) the authority of the agency to sue and be sued in its own name, and (5) the right of the agency to hold and use property. 3. Whether a local entity is an arm of the state under the Eleventh Amendment is a question of federal law, although that federal question can be answered only after considering provisions of state law that define the agency’s character.
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Research Aids
Research citations below are abbreviated as: American Law Reports (A.L.R.), American Jurisprudence (Am.Jur.), Corpus Juris Secundum (C.J.S.), and McQuillen Municipal Corporations (McQuillen Mun.Corp.). Explanations for each of these sources of law are found in Chapter 1 of this text. Also, see Appendix B of this book. 32a Am.Jur.2d Federal Courts § 956, Sovereign Immunity: In General. 57 Am.Jur.2d Municipal, County, School, and State Tort Liability: Immunity in General. Restatement (Second) of Torts 1959 through 2010, 859D Public Officers Immunity § 859B States Immunity. 67 C.J.S. Officers § 254, Officers and Public Employees: Liabilities for Acts or Omissions. 63C Am.Jur.2d Public Officers and Employees § 307, Liability of Public Officers: Absolute Immunity. 66 A.L.R.5th 1, Tort Liability of Public Schools and Installation of Higher Learning for Accidents Occurring in Physical Education Classes. 57 Am.Jur.2d Municipal, County, School and State Tort Liability, School Physical Education Classes: Contributory Negligence and Assumption of Risk. 33 A.L.R.3d 703, Modern Status of the Doctrine of Sovereign Immunity as Applied to Public Schools and Institutions of Higher Learning (state-by-state analysis). 40 A.L.R.2d 927, State’s Immunity from Tort Liability as Dependent on Governmental or Proprietary Nature of Function. 68 Am.Jur.2d Schools § 477, Charitable Immunity: Private Schools and Institutions of Higher Learning. 14 Causes of Action 505, Cause of Action to Recover for Injury to or Death of Student Participating in Physical Education Class or School Athletic Activity. 35A Am.Jur.2d Federal Tort Claims Act § 35, Exclusions for Exercise of Discretionary Function. 37 A.L.R. Fed. 537, Federal Tort Claims Act: Discretionary Functions or Duties. 57 Am.Jur.2d Municipal, County, School, and State Tort Liability, Immunity in General: Liability or Indemnity Insurance Affecting Immunity.
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68 A.L.R.2d 1437, Liability or Indemnity Insurance Carried by Governmental Unit as Affecting Immunity from Tort Liability. 71 A.L.R.3d 6, Validity and Construction of Statute Authorizing or Requiring Governmental Unit to Procure Liability Insurance Covering Public Officers or Employees. 16 A.L.R.3d 25, Age and Mentality of Child as Affecting Application of the Attractive Nuisance Doctrine. 57 Am.Jur.2d Municipal, County, School and State Tort Liability § 531, Liability for Particular Acts or Omissions: Operation for Public Schools; Status of Users as Invitees, Licensees or Trespassers. 63 A.L.R. Fed. 744, Immunity of Public Officials from Personal Liability in Civil Rights Actions brought by Public Employees Under 42 U.S.C.A. § 1983. 48 Am.Jur. Trials 587, Public School Liability: Constitutional Tort Claims for Excessive Punishment and Failure to Supervise Students. 159 A.L.R. Fed. 37, “State-Created Danger,” or Similar Theory, as a Basis for Civil Rights Action Under 42 U.S.C.A. § 1983. 15 Am.Jur.2d Civil Rights § 71, Particular Rights as a Subject of Action—Due Process Rights: “State-Created Danger” as a basis for action. 21 Causes of Action 2d 175, Cause of Action for “State-Created Danger” under 42 U.S.C.A. § 1983. 78 C.J.S. Schools and School Districts § 655, Constitutional Torts: “State-Created Danger.” 14 C.J.S. Civil Rights § 51, Civil Rights: Acts or Conduct Causing Deprivation. 15 Am.Jur.2d Civil Rights § 99, Civil Rights: Sovereign Immunity; Effect of Eleventh Amendment. 187 A.L.R. Fed. 175, Immunity of the State from Civil Suits Under the Eleventh Amendment— Supreme Court Cases. Law Reviews Dina Mishra, “When the Interests of Municipalities and Their Officials Diverge: Municipal Dual Representation and Conflicts of Interest in § 1983 Litigation,” 119 Yale L.J. 86, October 2009. Peter J. Maher, Kelly Price, Perry A. Zirkel, “Governmental and Official Immunity for School Districts and Their Employees: Alive and Well?” 19 Kan. J.L. & Pub. Pol’y 234, Winter 2010.
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Endnotes
1. F. Pollock and F. W. Maitland, The History of English Law before the Time of Edward I (Boston: Little, Brown, 1905). 2. Eugene T. Conners, “Governmental Immunity: Legal Basis and Implications for Public Education,” Ph.D. dissertation, University of Florida, 1977. 3. Ibid. 4. The Case of the King’s Prerogative in Saltpeter, 12 Co. Rep. 12 (1607). 5. Prohibitions del Roy, 12 Rep. 63 (1607). 6. Mersey Trustees v. Gibbs, L.R. 1 H.L. 93 (1866). 7. Crisp v. Thomas, 63 LINS 756 (1890). 8. 100 Eng. Rep. 359, 2 T.R. 667 (1788). 9. 9 Mass. 247 (1812). 10. The Siren, 74 U.S. (7 Wall.) 152 (1869). 11. Nichols v. United States, 74 U.S. (7 Wall.) 122 (1869). 12. 33 A.L.R.3d 703 (1970). 13. Molitor v. Kaneland Community Unit District No. 302, 18 Ill. 2d 11, 163 N.E.2d 89 (1959). 14. Muskopf v. Corning Hospital District, 55 Cal. 2d 211, 11 Cal. Rptr. 89, 359 P.2d 457 (1961). 15. 33 A.L.R.3d 703 (1970). 16. Ex parte Trottman v. Russell County Board of Education, 965 So.2d 780 (Ala. 2007). See also: Giambrone v. Douglas, 874 So.2d 1046 (Ala. 2003). 17. Ibid. 18. Ex parte, Trottman, op. cit. 19. Louviere v. Mobil County Board of Education, 670 So.2d 873 (1995). 20. Yanero v. Davis, 65 S.W.3d 510 (2001). 21. Ibid. 22. W. Page Keeton, Dan B. Dobbs, Robert E. Keeton, and David G. Owen, Prosser and Keeton on Torts, 5th ed. (St. Paul, Minn.: West, 1984), p. 1044. 23. Maryland and Mississippi; Keeton et al., Prosser and Keeton on Torts, p. 1044. 24. Alabama, Arkansas, Georgia, Kentucky, North Carolina, Tennessee, West Virginia, and Wisconsin. Keeton et al. observe here that some states may retain immunity at the state level but waive immunity of political subdivisions at the local level. Keeton et al., Prosser and Keeton on Torts, p. 1044. 25. See Norwin School District v. Cortazzo, 625 A.2d 183 (Pa. Commw. Ct. 1993). 26. Keeton et al., Prosser and Keeton on Torts, p. 1044. 27. Ibid., p. 1045. 28. Restatement (Second) of Torts, vol. 4, § 895B, pp. 399–400. 29. Ibid., pp. 402–3. 30. Dalehite v. United States, 346 U.S. 15, 73 S. Ct. 956 (1953). 31. Restatement (Second) of Torts, vol. 4, § 895B, p. 404. 32. Keeton et al., Prosser and Keeton on Torts, p. 1050. 33. Restatement (Second) of Torts, vol. 4, § 895D, p. 415. 34. See Black’s Law Dictionary, 7th ed. (St. Paul, Minn.: West, 1999), p. 553. 35. Ibid., p. 1148. 36. Restatement (Second) of Torts, vol. 4, § 895D, pp. 416–17. 37. Keeton et al., Prosser and Keeton on Torts, p. 1045. 38. Crowell v. School District No. 7, 805 P.2d 552 (Mont. 1991). See also Hedges v. Swan Lake and Salmon Prairie School District No. 73, 812 P.2d 334 (Mont. 1991). 39. Linhart v. Lawson, 540 S.E.2d 875 (Va. 2001).
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Endnotes 40. Lamont Independent School District v. Swanson, 548 P.2d 215 (Okla. 1976); Brewer v. Austin Independent School District, 848 P.2d 566 (Okla. 1993). 41. See Charles Gabus Ford, Inc. v. Iowa State Highway Commission, 224 N.W.2d 639 (Iowa 1974). 42. Sawaya v. Tucson High School District No. 1, 78 Ariz. 389, 281 P.2d 105 (1955). 43. Reed v. Rhea County, 189 Tenn. 247, 225 S.W.2d 49 (1949). 44. Koehn v. Board of Education of City of Newton, 193 Kan. 263, 392 P.2d 949 (1964). 45. Rankin v. School District No. 9, 143 Or. 449, 23 P.2d 132 (1933). 46. Ross v. Consumers Power Co., 420 Mich. 567, 363 N.W.2d 641 (1984). 47. Stout v. Grand Prairie Independent School District, 733 S.W.2d 290 (Tex. Ct. App. 1987). 48. Boneau v. Swift and Co., 66 S.W.2d 172, 175 (Mo. Ct. App. 1934). 49. Beehler v. Daniels, 18 R.I. 563, 29 A. 6 (1894). 50. Restatement (Second) of Torts, vol. 4, § 332. 51. Moore v. Greensburg High School, 773 N.E.2d 367 (Ind. Ct. App. 2002). 52. Bush v. City of Norwalk, 122 Conn. 426, 189 A. 608 (1937). 53. Ferris v. Board of Education of Detroit, 122 Mich. 315, 81 N.W. 98 (1899). 54. Jones v. Kansas City, 176 Kan. 406, 271 P.2d 803 (1954). 55. Rose v. Board of Education, 184 Kan. 486, 337 P.2d 652 (1959). 56. Sioux City & Pacific R. Co. v. Stout, 84 U.S. (17 Wall.) 657, 21 L. Ed. 745 (1873). 57. Restatement of the Law—Torts § 339 (1965). 58. Giacona v. Tapley, 5 Ariz. App. 494, 428 P.2d 439 (Ariz. 1967). See also: Samson v. O’Hara, 239 So.2d 151 (Fla. App. 1970). 59. Moonan v. Clark Wellpoint Corporation, 159 Conn. 178, 268 A.2d 384 (1970). 60. Neal v. Shields, Inc., 166 Conn. 3, 347 A.2d 102 (Conn., 1974). 61. Colon v. Marzec, 115 Ill.App.2d 410, 253 N.E.2d 669 (Ill. 1969). 62. Rosenow v. City of Estherville, 199 N.W.2d 125 (Iowa, 1972). 63. Louisville Trust Co. v. Nutting, 437 S.W.2d 484 (Ky. 1968). 64. Centranchis v. Parish of Jefferson, 299 So.2d 513, cert. denied, 302 So.2d 35 (La., 1974). 65. Matson v. Kivimski, 254 Minn. 140, 200 N.W.2d 164 (Minn. 1972). 66. Wren v. Harrison, 165 Ga. App. 847, 303 S.E.2d 67, cert. vacated, 251 Ga. 415, 307 S.E.2d 924 (Ga., 1983). 67. Gentle v. Pine Valley Apartments, 631 So.2d 928 (Ala. 1994). 68. Stahl v. Cocalico School Dist., 112 Pa. Comwlth. 50, 534 A.2d 1141 (Pa., 1987). 69. Carter by Carter v. U.S. Steel Corp., 390 Pa. Super. 265, 568 A.2d 646 (Pa. 1990). 70. Scarano by Scarano v. Town of Ela, 166 Ill. App. 3d 184, 520 N.W. 26, 62 (Ill. 1988). 71. Restatement (Second) of Torts § 339 (1965–2007).
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72. Michael G. Collins, Section 1983 Litigation in a Nutshell (St. Paul, Minn.: West, 1997), p. 1. 73. Ibid., p. 151; Carey v. Piphus, 435 U.S. 247, 98 S. Ct. 1042 (1978). 74. Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473 (1961). 75. 42 U.S.C. § 1983, enacted 1871. 76. Ernest W. Williams, “Liability of Public Schools and Public School Officials for Damages under 42 U.S.C. 1983,” J.D. thesis, Harvard Law School, 1975, p. 1. 77. Home Telegraph and Telephone Co. v. Los Angeles, 227 U.S. 278, 33 S. Ct. 312 (1913). 78. Collins, Section 1983 Litigation, p. 19. 79. Monell v. Department of Social Services of City of New York, 436 U.S. 658, 98 S. Ct. 2018 (1978). 80. Ibid. 81. Wood v. Strickland, 420 U.S. 308, 95 S. Ct. 992 (1975). 82. Carey v. Piphus, 435 U.S. 247, 98 S. Ct. 1042 (1978). 83. Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S. Ct. 1114 (1996). 84. Monell v. Department of Social Services of City of New York, op. cit. 85. Pembaur v. Cincinnati, 475 U.S. 469, 106 S. Ct. 1292 (1986). 86. Bennett v. City of Slidell, 728 F.2d 762 (5th Cir. 1984). 87. Ibid. 88. Parratt v. Taylor, 451 U.S. 527, 101 S. Ct. 1908 (1981). 89. Daniels v. Williams, 474 U.S. 327, 106 S. Ct. 662 (1986). 90. Rubek v. Barnhart, 814 F.2d 1283 (8th Cir. 1987). 91. Ibid., at 1284. See also: Garcia v. Miera, 817 F.2d 650 (10th Cir. 1987); Taylor v. Ledbetter, 818 F.2d 791 (11th Cir. 1987). 92. Kibbe v. City of Springfield, 77 F.2d 801 (1st Cir. 1985), cert. granted, 475 U.S. 1064, 106 S. Ct. 1374 (1986), cert. dismissed, 480 U.S. 257, 107 S. Ct. 1114 (1987). 93. Mitchell v. Forsyth, 472 U.S. 511, 105 S. Ct. 2806 (1985). 94. Davis v. Scherer, 468 U.S. 183, 104 S. Ct. 3012 (1984). 95. Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727 (1982). 96. Jeffrey J. Horner, “The Anatomy of a Constitutional Tort,” 47 Educ. L. Rep. 13 (1988). 97. Ibid. 98. Soper v. Hoben, 195 F.3d 845, (6th Cir. 1999), cert. denied, 530 U.S. 1262, 120 S. Ct. 2719, (2000; Doe v. Claiborne County, 103 F.3d 485 (6th Cir. 1996). 99. Harry A. v. Duncan, 351 F. Supp. 2d 1060 (D. Mont. 2005), affirmed by 234 Fed.Appx. 463 (9th Cir., Mont, 2007). 100. Ibid. 101. Ibid. 102. Ibid. 103. Ibid. 104. Ye v. U.S., 484 F.3d 634 (3rd Cir. 2007), cert. denied, 128 S. Ct. 905, 169 L. Ed. 2d 729 (U.S. 2008). 105. McQueen v. Beecher Community Schools, 433 F.2d 460 (6th Cir. 2006). 106. Ye v. U.S., op. cit. 107. Ibid. 108. Mohammed v. School District of Philadelphia, 196 Fed. Appx. 79 (3rd Cir. 2006). 109. Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S. Ct. 568 (1977).
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110. Edelman v. Jordan, 415 U.S. 651, 94 S. Ct. 1347 (1974). 111. Article VI, § 2, of the Ohio Constitution states, “The general assembly shall make such provision . . . as . . . will secure a thorough and efficient system of common schools throughout the state. . . .” 112. Monell v. Department of Social Services of City of New York, 436 U.S. 658, 98 S. Ct. 2018 (1978). 113. Alabama v. Pugh, 438 U.S. 781, 98 S. Ct. 3057 (1978). 114. Minton v. St. Bernard Parish School Board, 803 F.2d 129 (5th Cir. 1986). See also: Duke v. Grady Municipal Schools, 127 F.3d 972 (10th Cir. 1997). 115. Duke v. Grady Municipal Schools, Ibid. 116. Daddow v. Carlsbad Municipal School District, 120 N.M. 97, 898 P.2d 1235 (1995).
117. Mt. Healthy City School District Board of Education v. Doyle, op. cit.; see also Clark v. Tarrant County, 798 F.2d 736, 748 (5th Cir. 1986). 118. Minton v. St. Bernard Parish School Board, 803 F.2d at 131.
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Quoted Box Citation
Constitutional Torts: State-Created Danger Doctrine. Hunt v. Sycamore Community School District Board of Education, 542 F. 31 529 (2008).
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CHAPTER 15
Certification, Contracts, and Tenure [I]t would be my aim again, to make better teachers, and especially better teachers for our common schools . . . teachers who would know more of the nature of children, of youthful development, more of the subjects to be taught, and more of the methods of teaching them. . . . In short, I was desirous of putting our schools in the hands of those who would make them places in which children could learn, not only to read and write and spell and cipher, but where they would have all their faculties trained in such harmony as would result in the highest formation of character. —Cyrus Pierce, 1851
CHAPTER OUTLINE ■
INTRODUCTION
Immorality
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TEACHER CERTIFICATION
Immoral Conduct
Background
Cause or Good Cause
Requirements
Reduction in Force
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TEACHER CONTRACTS
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TENURE
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GROUNDS FOR TERMINATION OF TENURED TEACHERS
The Standard Contract
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CONSTITUTIONAL PROTECTION OF CONTRACTS
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SUMMATION OF CASE LAW
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RESEARCH AIDS
Incompetency Insubordination
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Introduction
The employment conditions of public school teachers are governed by state statutory and regulatory policy. Because public education is exclusively a state function, the state may set the criteria for eligibility, qualification, and certification of teachers. In the exercise of its sovereign power to provide for an efficient system of public schools for the enhancement of the welfare of the people, the state can establish the conditions and requirements necessary to become a public school teacher: A person has no constitutional right to be employed as a teacher in the public schools, as such employment is not an uninhibited privilege and she (or he) has no right to serve except on such terms as the state prescribes.1
At its option, a state may have no certificate requirements, or it can establish complex conditions precedent to employment with regard to experience, education, test scores, or any number of conditions that may be considered important to one’s ability to teach. The state may also prescribe the contractual relationship between the teacher and the school board and if it wishes, may create special contractual conditions pertaining to terms and conditions of employment. The actual contract between the teacher and school board may be for any period of time but is usually annual. Or, there may be a statutorily created long-term arrangement of indefinite length known as a tenure or continuing contract. However, the conditions for such contracts are prescribed by law, and teachers must agree to the legal conditions if they are to have and retain public school employment. The courts may rely on common-law precedents pertaining to contracts when litigation arises regarding disputed statutory application or interpretation. Beyond specific statutory and regulatory provisions and relevant common-law applications, the courts may also be called upon to determine the lawfulness of state restrictions or restraints on employment that may adversely affect teachers’ constitutional rights. Thus, the law pertaining to teacher employment in public schools derives from state statutory and regulatory prescriptions with a gloss of common-law precedents where there may be a lack of clarity. The employment relationship is also greatly affected by state and federal constitutional prohibitions that prevent government from arbitrarily
and unilaterally denying a teacher a basic and fundamental constitutional right or interest. This chapter is concerned with the eligibility and certification of teachers, their annual and tenure contractual relationships with school boards, and the conditions under which those relationships can be terminated. Further, this chapter deals with constitutional interests of teachers to the extent that they are affected by the obligation-of-contracts provision of the U.S. Constitution. Teachers’ rights, freedoms, and due process interests under the Bill of Rights and Fourteenth Amendment, as well as their rights under federal antidiscrimination statutory provisions, are discussed in subsequent chapters.
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Teacher Certification
All state legislatures have enacted laws relating to the certification of teachers, and when such laws are properly promulgated with no intent to discriminate, and are not arbitrary, they will be upheld by the courts. These laws run the gamut from great particularity to gross generality. Thus, it is necessary to consider the specific laws of each state individually to determine specific certification requirements. The general rule is that if a teacher satisfies all of the requirements set forth in the statutes and regulations relative to the issuance of a certificate, the certifying body may not arbitrarily refuse to issue the certificate. However, in most cases, the certificate-issuing body is vested with discretionary authority. Also, the issuing agency may, in many instances, prescribe higher standards for certification than are contained in laws enacted by a state legislature.
BACKGROUND Early U.S. schools were deficient for many reasons, most importantly, the lack of well-educated and well-trained professional teachers. Few teachers were well versed in subject matter, and still fewer knew the techniques of teaching. Early schools were usually staffed by itinerant teachers who were interviewed and hired by local school trustees, who themselves were often illiterate or only vaguely aware of the qualifications necessary to good teaching. Little serious thought was given to the education and training of teachers in America until the mid-nineteenth century. The late beginnings of teacher education in this
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Teacher Certification
country tracked the general disinterest in public schools by parents who chose to send their children to private schools, where the teachers were equally poorly prepared, or who ignored formal education entirely, placing their children directly in the workforce at a very early age. The Prussians had much earlier recognized the need for adequately trained teachers, and between 1750 and 1794, established dozens of seminaries for the special training of elementary school teachers. By 1808, the new French government under Napoleon had established the École Normale Supérieure, a higher-education normal school; between 1831 and 1833, France created 30 new normal schools for teacher training. It was not until 1839 that the first legislatively authorized normal school in America was established under the leadership of Horace Mann in Lexington, Massachusetts.2 Slowly, other states began to create normal schools in the realization that teachers should be trained in both subject matter and teaching methods. Most knowledgeable persons agreed that the study of didactics by teachers was essential if the public school was to be efficient and effective. Providing for well-trained personnel, however, addressed only part of the problem. The local orientation and control of public schools had produced the prevailing practice of lay certification through examination with little or no statewide coordination for quality control or continuity. It was said that even with the development of teacher training programs, many localities continued to indulge in “schoolkeeping,” a system in which young, unmarried, and unqualified women taught while they were “anticipating marriage” or in which “traveling Ichabod Cranes kept school rather than professional teachers teaching” school.3 It was at this time proposed that the solution to the quality problem lay in “establishing a well-organized state system of examinations” managed at the local level by professional educators, superintendents, and professional teachers.4 It was reasoned that certification should be granted to teachers by professional educators “for the same reason that only lawyers can legally examine law students applying for admission to the bar, that only physicians can legally examine medical students, and that only clergymen pass on the fitness of theological students to enter the ministry.” 5 The nature of public schools as governmental agencies, however,
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prevented the implementation of such certification proposals. Eventually, a quasi-professional system was adopted whereby teacher-training colleges would train and recommend certification of teachers to a state educational agency, which would in turn issue teaching certificates. It was believed that this process was more effective than certification based upon lay examination or even statewide teacher tests for certification with little or no requisite education or training. Partially because of the experiences of the past, the public today apparently believes that teachers should meet the rigors of certain prescribed academic attainment as evaluated by institutions of higher education as well as teacher tests in order to acquire a license to teach. The license itself is a certificate issued by the state, recognizing that a person is presumptively qualified to teach in the public schools. In this manner, the state extends some surety to the child and the taxpayer that the public schools are protected against “charlatans, ignoramuses, and humbugs”6 masquerading as teachers.
CERTIFICATE AS CAPACITY TO CONTRACT Possession of a teacher’s certificate is a necessary prerequisite to employment. Although a job applicant may be interviewed and hired on the strength of having completed all certification requirements, failure to actually obtain the actual certificate or license will prevent the formation of a contract enforceable at law. Certification constitutes capacity to contract. —67B Am.Jur.2d Schools § 163
REQUIREMENTS Most states specifically require by statute that an applicant for a teaching certificate be of good moral character. To remain eligible for either continued certification or renewal of an existing certificate, the teacher must continue to evidence good moral character. Besides good moral character, state law generally requires that applicants have successfully completed a predetermined number of college credits in the subject that the individual plans to teach (e.g., English), and a required level on teacher test scores. All 50 states approve the content of teacher education programs conducted
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by colleges and universities.7 States also generally require the individual to be a citizen of the United States of a specified age (usually 18 or older). Some states require the pledging of loyalty to the state and/or federal Constitution and, in recent years, have required the completion of an examination, such as the National Teacher Examination. Teacher certification does not guarantee employment. State legislatures have delegated the authority for employment of teachers to local school boards. Local boards have been given wide latitude and may place additional requirements or restrictions on employment as long as these rules do not contradict or reduce the effect of state requirements. Neither can such rules violate one’s constitutional or statutory rights. Local boards cannot impose requirements that are arbitrary, capricious, or enacted in bad faith. Some additional requirements that have been upheld include mandating greater academic credentials than those established by the state and requiring continuing education after employment.8 School boards have been upheld in requiring teachers to establish residency within the boundaries of the school district,9 restricting outside employment, adopting reasonable health and physical requirements (within federal and state provisions for persons with disabilities), assigning (within state statutes) teachers to teaching positions, and mandating the supervising of extracurricular activities.
Statute Forbidding Certification to Persons Who Are Not Citizens and Have Manifested No Intent to Become Citizens Is Not Violative of Equal Protection
Ambach v. Norwick Supreme Court of the United States, 1979. 441 U.S. 68, 99 S. Ct. 1589.
Mr. Justice POWELL delivered the opinion of the Court. This case presents the question whether a State, consistently with the Equal Protection Clause of the Fourteenth Amendment, may
refuse to employ as elementary and secondary school teachers aliens who are eligible for United States citizenship but who refuse to seek naturalization. New York Education Law § 3001(3) forbids certification as a public school teacher of any person who is not a citizen of the United States, unless that person has manifested an intention to apply for citizenship. The Commissioner of Education is authorized to create exemptions from this prohibition, and has done so with respect to aliens who are not yet eligible for citizenship. Unless a teacher obtains certification, he may not work in a public elementary or secondary school in New York. Appellee Norwick was born in Scotland and is a subject of Great Britain. She has resided in this country since 1965 and is married to a United States citizen. Appellee Dachinger is a Finnish subject who came to this country in 1966 and also is married to a United States citizen. Both Norwick and Dachinger currently meet all of the educational requirements New York has set for certification as a public school teacher, but they consistently have refused to seek citizenship in spite of their eligibility to do so. Norwick applied in 1973 for a teaching certificate covering nursery school through sixth grade, and Dachinger sought a certificate covering the same grades in 1975. Both applications were denied because of appellees’ failure to meet the requirements of § 3001(3). Norwick then filed this suit seeking to enjoin the enforcement of § 3001(3), and Dachinger obtained leave to intervene as a plaintiff. . . . Applying the rational basis standard, we held last term that New York could exclude aliens from the ranks of its police force. Because the police function fulfilled “a most fundamental obligation of government to its constituency” and by necessity cloaked policemen with substantial discretionary powers, we viewed the police force as being one of those appropriately defined classes of positions for which a citizenship requirement could be imposed. Accordingly, the State was required to justify its classification only “by a showing of some rational relationship between the interest sought to be protected and the limiting classification.” The rule for governmental functions, which is an exception to the general standard applicable to classifications based on alienage, rests on
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Teacher Certification
important principles inherent in the Constitution. The distinction between citizens and aliens, though ordinarily irrelevant to private activity, is fundamental to the definition and government of a State. The Constitution itself refers to the distinction no less than eleven times, . . . indicating that the status of citizenship was meant to have significance in the structure of our government. The assumption of that status, whether by birth or naturalization, denotes an association with the polity which, in a democratic republic, exercises the powers of governance. The form of this association is important: an oath of allegiance or similar ceremony cannot substitute for the unequivocal legal bond citizenship represents. It is because of this special significance of citizenship that governmental entities, when exercising the functions of government, have wider latitude in limiting the participation of noncitizens. In determining whether, for purposes of equal protection analysis, teaching in public schools constitutes a governmental function, we look to the role of public education and to the degree of responsibility and discretion teachers possess in fulfilling that role. Each of these considerations supports the conclusion that public school teachers may be regarded as performing a task “that go[es] to the heart of representative government.” Public education, like the police function, “fulfills a most fundamental obligation of government to its constituency.” The importance of public schools in the preparation of individuals for participation as citizens, and in the preservation of the values on which our society rests, long has been recognized by our decisions: Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. Brown v. Board of Education, 347 U.S. 483, 493, 74 S. Ct. 686, 691 (1954).
. . . Other authorities have perceived public schools as an “assimilative force” by which
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diverse and conflicting elements in our society are brought together on a broad but common ground. . . . These perceptions of the public schools as inculcating fundamental values necessary to the maintenance of a democratic political system have been confirmed by the observations of social scientists. . . . Within the public school system, teachers play a critical part in developing students’ attitude toward government and understanding the role of citizens in our society. Alone among employees of the system, teachers are in direct, day-to-day contact with students both in the classrooms and in the other varied activities of a modern school. In shaping the students’ experience to achieve educational goals, teachers by necessity have wide discretion over the way the course material is communicated to students. They are responsible for presenting and explaining the subject matter in a way that is both comprehensible and inspiring. No amount of standardization of teaching materials or lesson plans can eliminate the personal qualities a teacher brings to bear in achieving these goals. Further, a teacher serves as a role model for his students, exerting a subtle but important influence over their perceptions and values. Thus, through both the presentation of course materials and the example he sets, a teacher has an opportunity to influence the attitudes of students toward government, the political process, and a citizen’s social responsibilities. This influence is crucial to the continued good health of a democracy. Furthermore, it is clear that all public school teachers, and not just those responsible for teaching the courses most directly related to government, history, and civic duties, should help fulfill the broader function of the public school system. Teachers, regardless of their specialty, may be called upon to teach other subjects, including those expressly dedicated to political and social subjects. More importantly, a State properly may regard all teachers as having an obligation to promote civic virtues and understanding in their classes, regardless of the subject taught. Certainly a State also may take account of a teacher’s function as an example for students, which exists independently of particular classroom subjects. In light of the foregoing considerations, we think it clear that public school teachers come well within the “governmental function” principle
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recognized in Sugarman and Foley. Accordingly, the Constitution requires only that a citizenship requirement applicable to teaching in the public schools bears a rational relationship to a legitimate state interest. . . . As the legitimacy of the State’s interest in furthering the educational goals outlined above is undoubted, it remains only to consider whether § 3001(3) bears a rational relationship to this interest. The restriction is carefully framed to serve its purpose, as it bars from teaching only those aliens who have demonstrated their unwillingness to obtain United States citizenship. Appellees, and aliens similarly situated, in effect have chosen to classify themselves. They prefer to retain citizenship in a foreign country with the obligations it entails of primary duty and loyalty. They have rejected the open invitation extended to qualify for eligibility to teach by applying for citizenship in this country. The people of New York, acting through their elected representatives, have made a judgment that citizenship should be a qualification for teaching the young of the State in the public schools, and § 3001(3) furthers that judgment. Reversed.
Employee Residency Requirements Are Constitutional
Wardwell v. Board of Education of the City School District of the City of Cincinnati United States Court of Appeals, Sixth Circuit, 1976. 529 F.2d 625.
WILLIAM E. MILLER, Circuit Judge. In December, 1972, plaintiff, Terry Wardwell, was hired to teach in the Cincinnati schools. As a condition of employment he agreed to move into the city school district pursuant to a rule announced by the school superintendent in November, 1972, that all newly employed teachers must establish residence within the district within thirty days after employment. In January,
1973, the Board adopted the following resolution, essentially ratifying the superintendent’s rule: RESOLVED, That any employee hired by the Cincinnati Schools after November 13, 1972, must either reside within the Cincinnati School District, or agree, as a condition of employment, to establish residency within the district within ninety days of employment. Employees who live in the district must continue to reside therein as long as they are so employed. This policy does not affect in any way personnel hired before the above date.
Plaintiff Wardwell lived outside the district but within the State of Ohio. Despite the requirement he failed to change his residence. He filed the present action in July, 1973, under 28 U.S.C. § 1343 and 42 U.S.C. § 1983, challenging the residency requirement on equal protection grounds and seeking injunctive relief and attorney’s fees. . . . The district court denied the request for an injunction and upheld the validity of the rule, relying heavily on the Fifth Circuit’s reasoning in Wright v. City of Jackson, 506 F.2d 900 (5th Cir. 1975). Plaintiff argues that the Board’s residency requirement infringes his constitutionally protected right to travel as defined in Shapiro v. Thompson, 394 U.S. 618, 89 S. Ct. 1322(1969), and in Dunn v. Blumstein, 405 U.S. 330, 92 S. Ct. 995 (1972), extending the protection, as he contends, to both intrastate and interstate travel and embracing as a necessary corollary the right to remain in one place. We find no support for plaintiff’s theory that the right to intrastate travel has been afforded federal constitutional protection. An examination of Shapiro, supra, Dunn, supra, and the Supreme Court’s more recent opinion in Memorial Hospital v. Maricopa County, 415 U.S. 250, 94 S. Ct. 1076 (1974), convinces us that the aspect of the right to travel with which the Court was concerned in those cases is not involved here. It is clear that the Court was dealing with the validity of durational residency requirements which penalized recent interstate travel. Such durational residency requirements or restrictions affecting the interstate aspect of travel will not pass constitutional muster “absent a compelling state interest.” . . . . . . We conclude that the “compelling state interest” test is the applicable test in cases involving infringement of the right to interstate travel by durational residency requirements. On
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Teacher Certification
the other hand, where, as in the present case, a continuing employee residency requirement affecting at most the right of intrastate travel is involved, the “rational basis” test is the touchstone to determine its validity. We find a number of rational bases for the residency requirement of the Cincinnati School Board. The Cincinnati school superintendent testified that promulgation of the rule was based on the following conclusions: (1) such a requirement aids in hiring teachers who are highly motivated and deeply committed to an urban educational system, (2) teachers who live in the district are more likely to vote for district taxes, less likely to engage in illegal strikes, and more likely to help obtain passage of school tax levies, (3) teachers living in the district are more likely to be involved in school and community activities bringing them in contact with parents and community leaders and are more likely to be committed to the future of the district and its schools, (4) teachers who live in the district are more likely to gain sympathy and understanding for the racial, social, economic, and urban problems of the children they teach and are thus less likely to be considered isolated from the communities in which they teach, (5) the requirement is in keeping with the goal of encouraging integration in society and in the schools. These conclusions appear to us clearly to establish rational bases for the residency requirement imposed by the Cincinnati Board. . . . . . . [A]ppellant argues that the residency requirement is invalid because it requires newly hired teachers to move into and remain in the district and permits those already hired to remain or move outside the district. Appellee replies that distinguishing between new teachers and teachers with experience, who may have tenure and who did not know of the requirement when they accepted employment, is a reasonable distinction which the state is free to make. While we recognize that the limited applicability of the rule may be its most questionable feature, we do not believe that the residency requirement must fail because it does not apply to all teachers employed by the Cincinnati schools. The Supreme Court has pointed out that there is no constitutional requirement that regulations must cover every class to which they might be applied. It has further stated that “if the classification has
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some reasonable basis, it does not offend the constitution simply because the classification ‘is not made with mathematical nicety or because in practice it results in some inequality.’” Affirmed.
CASE NOTE Where a school board policy required that certified personnel reside within the district or within a 10-mile driving distance of the limits of the school district and a teacher moved 17 miles outside the district, her contract was not renewed. The court found that the policy had a rational basis, such as the necessity of community involvement. McClelland v. Paris Public Schools, 294 Ark. 292, 742 S.W.2d 907 (1988). See also Mogle v. Sevier County School District, 540 F.2d 478 (10th Cir. 1976); Simien v. City of San Antonio, 809 F.2d 255 (5th Cir. 1987).
Teacher’s “Unethical” Conduct in Sending Threatening and Obscene Letters to His Supervisor Constituted “Immorality” Justifying Revocation of His Teaching Certificate
Richardson v. North Carolina Department of Public Instruction Licensure Section Court of Appeals of North Carolina, 2009. 681 S.E.2d 479.
BRYANT, Judge. Petitioner Charlie L. Richardson appeals from an order entered in Mecklenburg County Superior Court affirming the decision of the State Board of Education to deny reinstatement of his teaching license. We affirm the order of the Superior Court. Richardson was a teacher for twenty-two years and held a teaching license (license) issued by the North Carolina State Board of Education (SBOE). In 1994, Richardson brought suit in the United States District Court for the Western District of North Carolina against his employer,
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the Cabarrus County Board of Education (the Board), alleging that the Board had unlawfully denied him promotion because of his race and had given him low evaluations and not promoted him because he had filed discrimination charges with the Equal Employment Opportunity Commission (EEOC). A federal magistrate dismissed all of the claims except that which alleged discrimination by the Board in failing to promote Richardson to Assistant Principal. At trial, a jury was unable to render a verdict, and the federal magistrate declared a mistrial. A retrial was scheduled, but before it was held, the parties reached a settlement. A few weeks after the mistrial, Jessie Blackwelder, Assistant Superintendent for the Cabarrus County Schools and a designated witness for respondent, received an anonymous letter. The letter referred to Blackwelder’s “lies,” noted that it was time “to get [her] back,” and referred to “incriminating evidences” which would be revealed “to Mr. Richardson’s attorney . . . [and] to Judge Horn, too” unless Richardson received an administrative position “immediately.” The letter also “promise[d]” Blackwelder jail, fines, and “sudden retirement” if she did not cooperate with the demands made by the anonymous author. Four months later, on 8 April 1997, Blackwelder received a second anonymous letter referring to the settlement agreement as a “cheap ass deal” that Richardson was too smart to sign. The tone and content of the letter was angrier and more threatening than the first and referred to Blackwelder by derogatory names. Blackwelder intercepted a third anonymous letter addressed to her husband that said among other things that she would learn not to mess with the writer. . . . Richardson denied typing or sending any of the anonymous letters. However, there was evidence presented that the first letter was typed on the same typewriter used to type employment inquiries submitted and signed by Richardson. A federal magistrate concluded that Richardson typed and mailed the three anonymous letters or caused them to be typed and mailed. The magistrate further concluded that Richardson’s conduct was intentional, egregious, and in bad faith and that the letters threatened Blackwelder; Richardson attempted to intimidate Blackwelder;
and Richardson’s actions “likely” violated federal laws dealing with perjury and intimidating witnesses. On 29 August 1997, having concluded that Richardson was the author of the anonymous letters, the magistrate granted the Board’s motion to dismiss and released the Board from the settlement agreement. Richardson was also barred from filing any claim based on the pending EEOC “right to sue” notice which had been incorporated in the aborted settlement agreement. . . . Richardson filed a Petition for Contested Case Hearing in the North Carolina Office of Administrative Hearings (OAH), and a hearing was held on 5 November 1999 before Administrative Law Judge (ALJ) Robert C. Reilly. ALJ Reilly, in an order dated 11 April 2000, concluded that Richardson had engaged in conduct that was unethical. ALJ Reilly also found that Richardson’s conduct in sending the threatening and obscene letters had a “reasonable and adverse” relationship to his continuing ability to perform any of his professional functions in an effective manner and recommended to the SBOE that Richardson’s license be revoked. On 3 August 2000, the SBOE revoked Richardson’s license. Thereafter, Richardson pursued appeals of the final agency decision by the SBOE to the North Carolina Superior Court, the North Carolina Court of Appeals, and the North Carolina Supreme Court; all courts upheld the license revocation. . . . Richardson argues that the trial court erred when it affirmed the final agency decision of the SBOE denying his request for reinstatement of his license. Richardson contends that because the revocation of his license was based on “unethical” conduct and the denial of his request for reinstatement of his license was based on “immoral” conduct, that such inconsistent bases constituted error. We disagree. Under North Carolina Administrative Code, Title 16, Chapter 6, Subchapter 6C, Section 0312(a), the SBOE may revoke a teaching license based upon several grounds, including “any . . . unethical . . . conduct by a person, if there is a reasonable and adverse relationship between the underlying conduct and the continuing ability of the person to perform any of his/her professional functions in an effective manner[.]” 16 N.C.A.C. 6C.0312(a) (2007). Under 16 N.C.A.C. 6C.0312(f) (1), the SBOE may not reinstate the license if the
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Teacher Certification
action that resulted in revocation involved abuse of minors, moral turpitude, or grounds listed in N.C. Gen.Stat. 115C-325 (e)(1)(b). 16 N.C.A.C. 6C.0312 (f)(1) (2007). Under N.C.G.S. § 115C325(e)(1)(b), “immorality” is listed as a ground for dismissal. Richardson’s license was initially revoked because he had engaged in unethical conduct by sending threatening and obscene letters to his supervisor which had a “reasonable and adverse” relationship to his continuing ability to perform any of his professional functions in an effective manner. Richardson then applied for reinstatement of his license and such application was rejected. Richardson now argues that there is a difference between immoral and unethical conduct. We disagree. We do however agree with the reasoning of ALJ Gray that the original revocation based on “unethical” conduct can be fairly characterized as constituting “immorality,” which has been defined as “such conduct that by common judgment reflects upon a teacher’s fitness to teach[.]” . . . As the State Superintendent stated in her 12 June 2006 letter to Richardson: The panel concluded that your license . . . was revoked due to moral turpitude and grounds listed in G.S. 115C-325(e)(1)b. (immorality). . . . As a result, the panel concluded that it could not recommend that your license be reinstated on the grounds that the action that resulted in revocation was based on moral turpitude and grounds listed in G.S. 115C-325(e)(1)b (immorality).
The conduct giving rise to the revocation of Richardson’s license is the same conduct upon which the agency based its refusal to reinstate his license, which conduct can be classified as both unethical and immoral. “Accordingly, a reasonable public school teacher of ‘ordinary intelligence,’ and utilizing ‘common understanding,’ would know that [sending threatening and obscene letters to his supervisor would] . . . consequently plac[e] the teacher’s professional position in jeopardy.” Upon review of the whole record, there is substantial evidence to support the superior court’s decision to uphold the SBOE’s final agency decision adopting ALJ Gray’s ruling that Richardson’s conduct constituted “immorality.” Therefore, this assignment of error is overruled.
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. . . There is no evidence in the record that anything presented to or considered by the Ethics Committee panel or the Superintendent was improper, irrelevant, or tainted by the decisionmaking process. We hold that Richardson did not carry his burden to show that the trial court erred in finding that the denial of the request for reinstatement was not arbitrary, capricious, or an abuse of discretion. Accordingly, this assignment of error is overruled. . . . Because Richardson has failed to show any error in the trial court’s decision, this assignment of error is overruled. Affirmed.
CASE NOTES 1. One of the basic purposes of the certification laws is to provide a capable and competent instructor in every classroom. Consequently, not only is a teaching certificate a prerequisite to employment and reemployment, but it is also necessary for schools to qualify for state aid. It is a common practice in several states to permit student teachers to assume complete control of a class in the absence of the regular teacher. This violates not only the spirit, but also the letter of the law of many states because a student teacher is not a qualified teacher, but is seeking to become a qualified teacher. If a teacher teaches without a certificate, she or he is considered to be a volunteer and is entitled to no compensation for services rendered. See Floyd County Board of Education v. Slone, 307 S.W.2d 912 (Ky. 1957). 2. A teacher who had no certificate when entering into an employment contract with a school board could not recover salary for services rendered, even though he or she had obtained the license prior to actually beginning work. McCloskey v. School District, 134 Mich. 235, 96 N.W. 18 (1903); O’Conner v. Francis, 42 A.D. 375, 59 N.Y.S. 28 (N.Y. App. Div. 1899); Lee v. Mitchell, 108 Ark. 1, 156 S.W. 450 (1913). 3. “Our contention and the legislative enactments support [the teacher’s] contention that the grant of a certificate from the State Board of Education inherently carries with it a presumption of competence, interest and training in the subjects designated.” Bauer v. Board of Education, Unified School District No. 452, 244 Kan. 6, 765 P.2d 1129 (1988).
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NEXUS A showing of nexus, or reasonable relationship, between the off-campus actions of a teacher and his or her fitness to teach, which has an adverse effect on or within the school community, is required before disciplinary action of “immoral or unprofessional conduct” can be taken against the teacher based on such acts. —Winters v. Arizona Board of Education
Nexus Existed Between a Teacher/Preacher’s “Holy Hugs and Kisses” with Minor Sufficient to Confirm Revocation of His Teaching Certificate
In re Appeal of Timothy Morrill (New Hampshire State Board of Education) Supreme Court of New Hampshire, 2001. 145 N.H. 692, 765 A.2d 699.
BROCK, C.J. The appellant, Timothy Morrill, seeks review of the revocation of his Experienced Educator Certificate by the State Board of Education (board) for lack of good moral character. We affirm. The record supports the following facts. From 1976 until his suspension in 1997, Morrill taught at Pelham High School. In 1993, he became a minister by completing the RHEMA Correspondence Bible School Course and subsequently formed a church, “Fellowship In His Love.” Morrill was pastor of the church which was located in his home in Sandown. On December 26, 1995, a complaint was filed with the Sandown Police Department alleging that Morrill was behaving inappropriately with a thirteen-year-old girl (victim) who attended his services. A police investigation ensued, culminating in the issuance of an arrest warrant for Morrill for simple assault on a minor female.
On May 6, 1997, he pleaded nolo contendere and was found guilty. He was sentenced to twelve months in the house of correction, deferred for up to twenty-four months on the condition that he obtain a sex offender evaluation. Additionally, Morrill was prohibited from having unsupervised contact with minors under sixteen years of age in his home. In June 1997, school officials received notice of the proceedings against Morrill. Morrill was suspended from his teaching position, see RSA 189:31 (1999), and the New Hampshire Department of Education (department) began an investigation into his activities. The department became aware of allegations made in 1989 against Morrill by a former foster daughter, who claimed that he had sexually abused her. In 1989, as a result of those allegations, the division for children, youth, and families (DCYF) denied a license application by Morrill and his wife to provide day care in their home. The department sought to revoke Morrill’s teaching certificate pursuant to New Hampshire Code of Administrative Rules (Rules), Ed 200 and 510 because he had been found guilty of simple assault on a minor female. The department claimed that his actions violated a number of provisions of Rule Ed 511, the Code of Ethics for the New Hampshire Teaching Profession, which provides that a teacher shall protect the student from physical harm, refrain from using his position to take advantage of students, and respond to parents’ concerns. After four days of hearings, the hearing officer recommended the revocation of the certificate. . . . The board sustained the findings and conclusions of the hearing officer and revoked the certificate. The board determined that Morrill “engaged in irresponsible and inappropriate conduct relating to [the victim] in the 1995 timeframe, said conduct reflecting that Timothy J. Morrill lacks good moral character to be a New Hampshire teacher.” The board denied Morrill’s motion for a rehearing. . . . Morrill first argues that the board acted unlawfully and unreasonably when it revoked his teaching certificate for misconduct which occurred outside of school with a non-student because no evidence demonstrated a nexus between that conduct and his fitness and ability to teach. He contends that his activities outside of
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Teacher Certification
the classroom should be only considered if there was a showing that his actions had a detrimental effect on his ability to teach and that he acted with sexual intent. . . . A school board may terminate a teacher for conduct outside of school if there is a sufficient nexus between the conduct and “the board’s legitimate interest in protecting the school community from harm.” We hold that the record contains sufficient evidence of a nexus between Morrill’s outside conduct and his fitness and ability to teach in the classroom. The evidence included the following. In 1995, the victim began attending church services in Morrill’s home. Shortly thereafter, Morrill initiated the practice that the victim had to give him “holy kisses” on the mouth and “holy hugs” when she entered or left the house, and at other times, including during her tutoring. Morrill engaged in other inappropriate conduct with the victim. For example, while on a church retreat to Rhode Island, Morrill made her feel uncomfortable by putting his arm around her, placing his hand on her leg, and holding her hand. Before the start of the 1995–1996 school year, the Morrills volunteered to tutor the victim at their home because she was having trouble learning in school. During the tutoring, Morrill continued to insist that the victim give him “holy hugs” and “holy kisses” on the mouth when she entered or exited his home, as well as during any study breaks. In November 1995, the victim complained to Morrill’s wife that she no longer wanted to be kissed by him and that his actions made her feel uncomfortable. The victim repeated that statement to her mother. The victim’s mother told Morrill that he was no longer to give “holy kisses” to the victim, but he continued with “holy hugs” and began kissing the victim again after a couple of weeks. . . . The evidence also demonstrates that Morrill’s actions were related to his fitness and ability to teach. A teacher is entrusted by the board and the community to supervise and educate students. . . . A court order forbidding unsupervised contact in his home with minors under sixteen years of age raises concern about Morrill’s fitness to carry out those responsibilities. This concern could have only been intensified by other evidence, including a report from Morrill’s sex
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offender evaluation that, although his actions were not consistent with “classic pedophilia,” “[his] history . . . suggests a heightened risk for less than ideal judgment should an extended relationship be allowed to develop from within the confines of his personal domain.” Conduct leading to an assault against a minor female is a serious matter, especially in this context when Morrill was told to stop kissing her because it made her uncomfortable. We agree with the hearing officer that this conduct demonstrates “serious disregard for children under his supervision and care.” Parents and school administrators would reasonably be concerned about the well-being and education of children in such an environment. . . . Such a loss of trust negatively affects Morrill’s fitness and ability to perform as a teacher. . . . Morrill argues that the board impermissibly infringed on his sincerely held religious beliefs in violation of the Federal and State Constitutions because his teaching certificate was revoked for purely religious conduct. Specifically, he contends that the Rules are discriminatorily applied and that similar non-religious conduct would not be questioned. We disagree. We address the State constitutional claim first. . . . “The New Hampshire Constitution prohibits the State from revoking [Morrill’s] license for his religious views but does not prohibit revocation for acts that otherwise constitute unprofessional conduct, regardless of their religious character.” . . . The board specifically stated that it was seeking revocation because Morrill “was found guilty of assault on a minor age female and court ordered to undergo a sex offender evaluation,” not because of his religious views. Since the board revoked his certificate, not for his religious beliefs, but for his conduct with the victim, we reject this argument. . . . Affirmed.
CASE NOTE Character and Reputation. The Oregon Supreme Court has pointed out that a teacher ’s certificate can be denied for lack of “good moral character,” whether or not the person has a “good reputation.”A state licensure board can make a judgment with regard to “character” based on a person’s record of moral integrity. Application of Bay, 233 Or. 601 378 P.2d 558 (1963).
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Teacher Contracts
A teacher ’s contract must satisfy the same requirements applicable to contracts in general. A school district is a legal entity, a corporate body with the power to sue and be sued; purchase, receive, hold, and sell real and personal property; make contracts and be contracted with; and do all other things necessary to accomplish the purposes for which it is created.
THE STANDARD CONTRACT Contracts of school districts must not only conform to the requirements of general contract law, but also must satisfy other statutory and case law demands. A contract may be described as an agreement between two or more competent persons for a legal consideration on a legal subject matter in the form required by law. This definition includes the five basic elements inherent in every valid contract, to wit: offer and acceptance, competent persons, consideration, legal subject matter, and proper form.
A CONTRACT A contract is a set of promises or agreement that the courts will enforce. Section 1 of the Restatement of Contracts defines a contract as “a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty.”
Offer and Acceptance
All contracts are agreements, but not all agreements are contracts. An agreement is an offer and an acceptance. Every valid contract contains an offer and acceptance. For example, a board of education offers a fifth-grade teaching position in a particular school to an individual. There is no agreement unless and until the individual accepts the offer. Several significant factors concerning agreements should be kept in mind. An offer can be accepted only by the individual or individuals to whom it is made. Unless otherwise stated, an offer must be accepted within a reasonable time after it is made, or it will be terminated automatically. Newspaper advertisements are usually considered to be invitations for offers and not
offers; that is, the board of education is soliciting offers. Also, an offer cannot be accepted unless, at the time the individual performed the act necessary to accept the offer, he or she knew of the existence of the offer. By way of illustration, let us assume that vandals have broken into a school building, and that the board of education has offered a reward for information leading to the arrest and conviction of the vandals. The information is provided to the police by a man who is unaware of the reward offer. A majority of the states hold that the man is not entitled to the reward because he could not have accepted the offer, since he was unaware of its existence— there was no meeting of the minds. Competent Persons
Each valid contract must be entered into between two or more competent persons—persons who have the legal capacity to contract. As already indicated, a board of education is considered a competent person under the law, with full capacity to enter into contracts. However, there are certain classes of people who have limited capacity to contract. These include minors, insane persons, inebriated persons, and corporations. A minor has the right to disaffirm his or her contract until a reasonable time after reaching his or her majority (i.e., becoming an adult). If a board of education contracts with a minor, the minor has the prerogative of electing to void the contract within a reasonable time after he or she becomes an adult, and no penalties for a contractual breach will be imposed against the minor. A board of education would have no right or option to avoid its contract with the minor. If an individual is so insane or inebriated at the time she or he enters into a contract that she or he does not know what she or he is doing, the person may have the contract set aside because there was no meeting of the minds, which is always essential in every valid contractual situation. At the common law, married women did not possess the legal capacity to contract. This law was premised on the age-old concept that when a man and woman married, the two become one and the man was that one. This contractual limitation has been removed by statutes in all states, and women now possess the power to enter into contracts on the same basis as men.
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Teacher Contracts
Before entering into a contract with a corporation, a board of education should ascertain that the corporation has the power, by statute or under its articles of incorporation, to perform the services agreed upon.
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relationships between teachers and school boards, there are the even more pervasive requirements of the state and federal Constitutions, which sanctify the contract and protect the individual against arbitrary use of the contract by the state. This aspect of the contract is discussed later.
Consideration
Va l i d c o n t r a c t s m u s t b e s u p p o r t e d b y consideration—something of value. Consideration is divided into three types: good, valuable, and a promise for an act. Good consideration is love and affection. For example, a mother may convey property to a child for good consideration. This notion is seldom invoked by courts today. Valuable consideration is cash or its equivalent. Most deeds will recite that the property is being conveyed for good and valuable consideration. The third type of consideration is that found in a unilateral contract—a promise for an act. For example, a board of education promises a reward of $500 for information leading to the arrest and conviction of vandals who damaged school property. An individual, knowing of the offer, provides the information that leads to the arrest and conviction of the vandals; she is entitled to the reward. Her consideration was the doing of the act requested. Legal Subject Matter
All contracts, in order to be valid, must involve a legal subject matter. Most, if not all, states prohibit the holding of various types of assemblies, such as rooster fighting. If a board of education entered into a contract to lease school premises for the purposes of staging a rooster-fighting conclave, such a contract would involve an illegal subject matter and would be declared void. Proper Form
In order to be enforceable, contracts must be in the form required by law. For example, all agreements with respect to the sale or lease of real estate must be in writing to be enforceable. An oral agreement to sell real property, even if made in the town square before 10,000 people, is unenforceable in the courts. This is but one example of the requirement that contracts must be in the proper form to be enforceable. States require that teachers’ contracts be in writing. Beyond the technical statutory and commonlaw requirements that govern the contractual
Teacher Who Did Not Obtain Necessary Credit Hours During Specified Period Was Not Entitled to Contract Renewal
Feldhusen v. Beach Public School District No. 3 Supreme Court of North Dakota, 1988. 423 N.W.2d 155.
VANDE WALLE, Justice. David Feldhusen appealed from a judgment dismissing his petition for a writ of mandamus. We affirm. Feldhusen was employed by Beach Public School District No. 3 (Beach) as a teacher in the fall of 1981. His employment continued until his contract was nonrenewed in the spring of 1987. Beach takes part in a voluntary “accreditation” program established by the State Department of Public Instruction. In order to be accredited a school district must establish and implement a policy for the professional growth of teachers. Beach implemented its policy through the following provision in its professional-negotiations agreement with the teachers in the school district: Summer school & extension course attendance shall be as follows to advance on the salary schedule: a. All plus hours must be graduate hours. b. Teachers with degrees must acquire 8 semester or 12 quarter hours every five years. c. Teachers may substitute 16 hours of certified inservice training for 1 quarter hour. See attached policy on in-service hours. d. All credits must be earned from an accredited college or university. e. All teachers must provide written proof each year by the second Monday in September that
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they meet above accreditation standards as required by North Dakota Department of Public Instruction. No salary increase will be granted the year accreditation standards are not met and no teacher contract will be offered the following year unless accreditation standards are met. . . .*
The reasons given by the board for not renewing a teacher’s contract must be sufficient to justify the contemplated action of the board and may not be frivolous or arbitrary but must be related to the ability, competence, or qualifications of the teacher as a teacher, or the necessities of the district such as lack of funds calling for a reduction in the teaching staff.
Beach established this policy in 1981. The 1985–1986 school year was the fifth year of the cycle for Feldhusen. At the end of that school year Feldhusen had completed only six of the requisite twelve quarter-hours. In March of 1987 the Beach school board voted to contemplate nonrenewal of Feldhusen’s teaching contract. A letter was sent to Feldhusen informing him of the contemplated nonrenewal for the reason of “teacher qualifications” based upon Feldhusen’s failure to meet the accreditation standards. . . . After the end of the 1986–1987 school year, Feldhusen performed coursework which would have given him the number of credits or quarter hours required by the Beach accreditation policy. This work was completed in June of 1987. In July of 1987 Beach hired another teacher to fill the position which Feldhusen had held. Subsequently Feldhusen petitioned for a writ of mandamus requiring Beach to give him a contract. After a hearing was held, the trial court issued a judgment dismissing the petition. It is from that judgment that Feldhusen appeals. The question before us is whether the trial court erred in dismissing Feldhusen’s petition for a writ of mandamus. . . . Feldhusen . . . argues that he has a clear legal right to a contract from Beach because there was no statutory basis for the Beach school board’s nonrenewal decision. We disagree. The nonrenewal of teacher contracts is governed by Section 15-47-38(5), N.D.C.C. A portion of that statute provides:
Thus teachers’ contracts can be nonrenewed for a lack of qualifications. In this case Beach was voluntarily taking part in an accreditation program which required that it assure the professional growth of its teachers. In order to comply with the accreditation standards, Beach, in tandem with its teachers, created a policy requiring its teachers to acquire a certain number of college credits in a five-year period. That policy became a part of the professional negotiations agreement between the Beach school board and the teachers of Beach. It is readily apparent that one of the qualifications for a teacher in Beach was that the teacher abide by the contractual provision designed to retain Beach’s accreditation. If a teacher failed to abide by the provision regarding the acquisition of college credits, the negotiated policy specified that no teacher contract would be offered the following year, thus justifying nonrenewal under Section 15-47-38(5). Therefore, we cannot conclude that the trial court abused its discretion in denying the petition for a writ of mandamus which was predicated upon a claim that nonrenewal could not be grounded in a teacher’s failure to abide by the Beach policy as formulated in the professional-negotiations agreement. . . . The judgment is affirmed.
*Schools are accredited and teachers are certified. Feldhusen was certified as a teacher. One of the standards required for accreditation of the school, a voluntary process, is that the school board establish and implement a policy of professional growth for each teacher and that it also locally establish the five-year period for each teacher who holds a life certificate. The language of the Beach policy requiring that teachers “meet . . . accreditation standards as required by North Dakota Department of Public Instruction” relates to the credits required of each teacher in order that the school meets the standards for accreditation.
CASE NOTE Teacher contracts with school districts take different forms. Indiana statute, Indiana Code Chapter 20-6.1-4, provides a good example and definition of three such relationships: 1) A permanent teacher is one who serves under contract as a teacher in a public school for five or more successive years . . . and . . . at any time enters into a teacher’s contract for further service with that school corporation; 2) A semi-permanent teacher is one who serves under contract as a teacher in a public school corporation for two successive years . . . and . . . at any time thereafter into a teacher’s contract for further service with that school corporation; 3) A nonpermanent teacher is one employed for a term of less than defined as permanent or semi-permanent.
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Grounds for Termination of Tenured Teachers
If a teacher is dismissed during a term of employment, procedural due process is required. If a teacher is not rehired at the end of a nonpermanent contract period, minimal due process is required only to the extent that a teacher be notified by a certain date for contract renewal or nonrenewal. Each contract entered into with a nonpermanent teacher continues in force unless the school corporation notifies the teacher that the contract will not continue. In Indiana the notification of the teacher must be on or before May 1, in writing, and delivered by registered or certified mail or in person. Where an Indiana teacher was not notified on or before May 1, but instead was notified verbally on May 8, the Court held that the school corporation had not properly complied with the statute, and the teacher was entitled to another year of employment. Pike Township Educational Foundation, Inc. v. Rubenstein, 831 N.E.2d 1239 (2005).
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reemployment. The benefit of tenure is that it bestows on the teacher a right of continued employment in the school district, and dismissal cannot occur without a hearing and presentation of proof of sufficient cause to meet the statutory requirements for removal. Many court cases have arisen concerning the transferring of a tenured teacher from a particular class or school to another educational setting. Generally, a tenured teacher, like a teacher on a limited contract, may be assigned to any class or school in the district if she or he is qualified to teach in that position. However, the courts frown upon any attempt of a school board or administrator to use “undesirable reassignment” as a means of retribution against a teacher who has achieved continuing contract status. If a teacher has committed an act for which her or his contract may be terminated, the proper legal procedure should be followed to terminate the contract rather than using subterfuges of questionable legality.11
Tenure
Tenure is a statutory right to hold office or employment and receive the benefits and emoluments of the position. Tenure, in its general sense, is a mode of holding or occupying a position or a job.10 A teacher, after meeting designated academic and teaching requirements in a school district for a prescribed number of years, may acquire tenure if recommended for
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Grounds for Termination of Tenured Teachers
Tenure laws specify the grounds for and the manner by which a teacher’s employment may be terminated. These laws may apply to the dismissal of teachers during the period of an annual contract or to the termination of teachers who have
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either continuing contracts or tenure. The most common grounds for dismissal are incompetency and insubordination. Incompetency has been construed by the courts to mean any physical or mental condition that tends to incapacitate a teacher so he or she cannot perform effectively. This rather broad definition generally concerns a fitness to teach that contains a range of factors and has been used by many boards as a catchall for teacher dismissal. Insubordination, on the other hand, is of narrower meaning and imports a willful disregard for express or implied directions of the employer or repeated refusal to obey reasonable regulations.12 Other grounds for dismissal include immorality, misconduct, neglect of duty, and any other good or just cause. Every teacher is charged with the responsibility of setting a good example. Not only must teachers be of good moral character, but also their general reputation must attest to this fact. Teachers not only must be moral persons, but also must conduct themselves in such a manner that others will know of their virtue. Although court opinions are not uniform on the subject, it may generally be concluded that misconduct is a broader term than immorality and that different standards of proof are required for each.
Teacher Did Not Acquire Tenure Rights by Working Fourth Year Under Temporary Contract
Scheer v. Independent School District No. I-26 of Ottawa County Supreme Court of Oklahoma, 1997. 948 P.2d 275 (1997).
SUMMERS, Vice Chief Justice. A young teacher, near the end of her third and final year as a “probationary teacher,” signed “a Temporary Certified Employee Contract” for her
fourth year. When the school district did not rehire her after the fourth year she sued, claiming tenured or “career” status. This case gives us, for the first time, the chance to address the question of when does tenured (or career) status first take effect under Oklahoma’s statutes for teachers. The District Court granted summary judgment to the school district. . . . Connie Scheer was first employed by the Afton School District for the 1990–1991 school year. She was thereafter employed for each of the next two years. Each year she was given evaluations, the results of which were that she was asked to improve in several different areas. More than once she was given a plan for improvement written by her administrator. On April 1, 1993, before Scheer had completed her third year of teaching, the school administration approached her and offered her a temporary contract for the following year. The school district was required by statute to make a decision as to her employment prior to April 10, or Scheer would have been entitled to continuing employment. . . . The school declined to offer her a permanent contract because of the many concerns about her teaching. Rather than terminating her, it offered the temporary contract as a “last chance” for improvement. After being given an opportunity to review the contract, Scheer signed it. The contract stated clearly that it was a “ T E M P O R A RY C E RT I F I E D E M P L O Y E E CONTRACT.” . . . She worked as a teacher for the 1993–94 year under the temporary contract. When the School Board decided not to continue her employment beyond that year she brought suit in state court for breach of contract and loss of employment in violation of due process. The trial court granted summary judgment to the school district. Essentially, Scheer urges that she was a tenured, or career, teacher. Recognizing that to be a tenured teacher she must have served as a teacher for three years, she claims tenure because she was employed under three one-year contracts, and the fourth contract—the temporary contract—was an invalid waiver of her rights to tenure. She finds it irrelevant that when she signed the temporary contract she had not yet completed her third year. In the alternative, she urges that by working the fourth year—albeit
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Grounds for Termination of Tenured Teachers
under a temporary contract—she attained career or tenured status. The School District urges that Scheer was not a tenured teacher, and therefore the School District was not bound by the requirements accorded to tenured teachers at the time it offered the alternative contract in lieu of termination. It claims that realizing Scheer would soon be tenured, the District offered her a temporary contract rather than dismiss her altogether. In so doing, it did not intend to offer her tenure, but instead attempted to give her another chance for improvement. The School District also urges that according to state law her employment under a temporary contract did not count toward giving her career or tenured status. There are two principal issues before us. First, was Scheer tenured, either before or after her performance under the temporary contract? If we answer this in the affirmative, we must next address whether a tenured teacher may waive tenure rights in a contract in exchange for continued employment for another year. We hold that under Oklahoma law she was not tenured either before or after the completion of the temporary contract. Because she had no tenure we need not address whether such rights may be waived by the teacher. . . . . . . Clearly, she was not tenured at the time she signed the “temporary” teaching contact, because she had not completed her third consecutive year. The School District was required by statute to inform her prior to April 10 as to whether her contract would be renewed. In following its statutory obligation, the School District notified her that the most she would be offered was a temporary contract. This occurred before April 10, and before the completion of her third consecutive year of teaching. At the time she signed the contract she had no rights to tenure. A narrow interpretation of the definition of “career teacher” might lead to the conclusion that she became tenured after this third year regardless of the school district’s actions based on their dissatisfaction with her performance. But such an interpretation destroys the apparent intent of the statutory scheme created by the legislature. The legislature intended teachers to acquire tenure after their third year. At all times prior to completion of the third year a teacher’s
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status is probationary, as is expressly stated in the definition of “probationary teacher.” 70 O.S. Supp. 1991 § 6-101.3(6). This permits a teacher to have three years to reach an acceptable level with regard to her or his teaching skills, and permits the school district three years to evaluate and perhaps seek improvement of a probationary teacher. . . . If we were to follow Scheer’s narrow interpretation, both the probationary teacher and the school district lose a year within which to improve and evaluate. If a probationary teacher in fact gains some expectancy of tenure after signing her third consecutive contract (which under statute must occur prior to April 10 of her second year), but before completing the performance required under the contract, a school district will be forced to allow a probationary teacher only two years within which to meet a particular teaching standard before being forced to decide whether the teacher should be reemployed or terminated. In essence, this interpretation would create a third class of teachers not contemplated by the legislature: probationary teachers with two years of experience who have signed a contract for the third year. Though still probationary under the statute they would be protected as tenured if they can just finish out the third year. We decline to adopt the interpretation argued by Scheer. . . . To receive tenure a teacher must have completed a third successful year. At the time she signed the Temporary Contact (prior to April 10 of her third year) she was a probationary teacher, and the school district had the right to consider her as such. The school district could have simply nonrenewed her contract prior to that April 10. The fact that she finished out the final month of school did not nullify or counteract the school’s decision. There is no legally protectable interest in tenure after two years. Both the school district and the probationary teacher are given three years to evaluate and meet standards. This interpretation not only complies with our statutory scheme, but also furthers one of the purposes of tenure by improving the level of teacher qualification. . . . The second argument urged is that Scheer gained tenure by working her fourth year under the temporary contract. Our statutes require that we hold she did not. Title 70 O.S. Supp. 1991, Section 6-101.23(A)(3) states that “teachers
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who are employed on temporary contracts” are exempt from the tenure laws. Scheer’s employment was extended to a fourth year only by a temporary contract. Specifically, if she did not have tenure before signing the temporary contract, she was exempted under Section 6-101.23. The legislature did not intend for teachers under temporary contracts to have the due process rights afforded to career teachers working under permanent contracts. Scheer did not gain tenure by working a fourth year under a temporary contract. . . . . . . The judgment of the District Court of Ottawa County is affirmed.
CASE NOTES 1. In a case similar to Scheer, a Kentucky court in 2008 held that a teacher who had been terminated after her fourth year of teaching, and was not “currently employed” pursuant to statute that granted tenure to teachers currently employed and contracted for a fifth consecutive year, did not acquire the requisite fifth year when she was offered and taught part-time as a temporary substitute teacher. The superintendent’s notification to the teacher that her employment would not continue a fifth year and ended her employment before she was hired as a substitute teacher was not a subterfuge to deny tenure. Jones v. Board of Education of Laurel County, 295 S.W.3d 120 (2008) discretionary review denied by Kentucky Supreme Court, 2009. 2. Tenure does not accrue until the statutory time has been completed. Spiewak v. Board of Education, 90 N.J. 63, 447 A.2d 140 (1982). 3. Tenure does not accrue until the anniversary date of first employment after a statutorily specified number of years. Davis v. Harrison Community Schools Board of Education, 126 Mich. App. 89, 342 N.W.2d 528 (1983). 4. A temporary contract does not apply toward time of employment for tenure purposes. The time of employment must be under a regular annual tenure-earning contract. Cipu v. North Haven Board of Education, 32 Conn. Supp. 264, 351 A.2d 76 (1974). 5. Tenure laws are enacted to provide job security for experienced teachers and to ensure that they are not discharged for insufficient and inadequate reasons. A system of tenure
has as its objective the maintenance of an able teaching force whose members have undergone a period of probation, with the concomitant result that because of such protections, more talented personnel will be attracted to the teaching profession. State v. Redman, 491 P.2d 157 (Alaska 1971), appeal after remand, Redman v. Department of Education, 519 P.2d 760 (Alaska 1974). 6. The broad purpose of teacher tenure is to protect worthy instructors from enforced yielding to political pressures and to guarantee employment, regardless of the vicissitudes of politics. School District No. 8, Pinal County v. Superior Court of Pinal County, 102 Ariz. 478, 433 P.2d 28 (1967). 7. A continuing contract has as one of its central purposes the elimination of uncertainty in the employment plans of both teacher and school district. Peters v. South Kitsap School District No. 402, 8 Wash. App. 809, 509 P.2d 67 (1973). 8. Tenure laws are not grants of power to school districts, but rather constitute limitations on the power of school districts to freely contract with teachers. Carlson v. School District No. 6 of Maricopa County, 12 Ariz. App. 179, 468 P.2d 944 (1970).
INCOMPETENCY Incompetency has been given broad interpretation by the courts. It is generally defined as “want of physical, intellectual, or moral ability; insufficiency; inadequacy; specific want of legal qualification or fitness.”13 Fitness to teach is essential and contains a broad range of factors. The courts have included in fitness to teach the lack of knowledge of subject matter, lack of discipline, unreasonable discipline, unprofessional conduct, and willful neglect of duty. Usually, when incompetency is alleged, other charges are also presented. In one case, the dismissal notification listed 14 specific charges and included inadequate maintenance of discipline during class, excessive and ineffective use of films, ineffective classroom teaching, and failure to cooperate with school administrators. Here the school district presented a preponderance of evidence that children were disruptive, daydreamed in class, and left the room without permission. Incompetence was thereby proved, and the court upheld the dismissal.14
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Grounds for Termination of Tenured Teachers
The manner of offering evidence in incompetency cases is generally through testimony. Both the quantity and the quality of evidence are important. The courts have liberally allowed opinions of principals, curriculum supervisors, and other supervisory personnel to stand as expert testimony. Other testimony by students and parents may be important, and actual observations of what transpired in the classroom are significant. A teacher who has been certified by the state is assumed to be competent, and it is the responsibility of the school board to prove incompetency. As long as school boards are not arbitrary or capricious, the courts generally do not interfere. The Fifth Circuit Court of Appeals has said that “[f]or sound policy reasons, courts are loathe to intrude upon the internal affairs of local school authorities in such matters as teacher competency.”15 This court said, “The court, in absence of proof of an abuse of discretion, cannot substitute its opinion for the decision of the school board and of the district court where both of these tribunals were presented with substantial evidence upon which to base their decisions.”16 Unauthorized or excessive punishment of pupils may constitute incompetency. A New York court upheld the dismissal of a tenured teacher when the board gave evidence that the teacher administered excessive punishment on three separate occasions.17 Incompetency may be evidenced by poor classroom decorum. In a case where a school district dismissed a tenured teacher on grounds of incompetency because she was unable to maintain order in her classroom— the classroom was littered with sunflower seeds, paper, and “junk”; the furniture and walls were covered with graffiti; and the teacher had not planned her lessons or given students proper directions—the court upheld the dismissal. 18 Moreover, of course, teacher ignorance may be a good and valid ground for dismissal. The dismissal of a tenured teacher who had been teaching for 25 years was upheld because the teacher used poor grammar and made spelling errors. The teacher also attempted to teach spelling before the children had mastered the alphabet.19 A teacher cannot be dismissed for incompetency for nebulous and nondefinitive evaluations of competency.20 Some state statutes require that teachers be given an opportunity to improve or
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to remediate themselves. If a statute requires remediation, the school board must show that remediation has been attempted or that the situation was irremediable.21
School Board’s Termination of Teacher for Incompetence Stemming from Indiscreet Classroom Discussion of Homosexuality Was Arbitrary and Invalid
Collins v. Faith School District No. 46-2 Supreme Court of South Dakota, 1998. 574 N.W.2d 889.
AMUNDSON, Justice. Richard Collins’ contract with Faith School District was terminated on the basis of incompetency after he held a question and answer session with elementary school boys who had just seen a sex education video. In response to a question as to how two men could have sex, Collins described oral and anal sex to the boys. The school board’s decision to terminate Collins’ employment was upheld by the circuit court. We reverse and remand for reinstatement of Collins’ employment and a determination of appropriate back pay. Richard Collins was employed by the Faith School District for twenty-nine years prior to his termination. During most of those years he was a fifth-grade teacher. Although he was being reassigned to teach the fourth-grade class during the 1995–96 school year, Collins had a valid contract and was entitled to the protections of South Dakota’s continuing contract law (SDCL 13-439.1 et seq.). The Faith School Board (Board) had not established any formal sex education curriculum for its elementary school students. However, Board had made it a practice to contract with the community health nurse to provide sex education for elementary students for approximately fifteen years prior to 1995. The makeup of this program was basically set by the community
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health nurse without any prescreening by Board or administration. A video chosen by the community health nurse covering the topics of puberty, maturation, and reproduction was shown to fourth-, fifth-, and sixth-grade boys on April 24, 1995. This was the first time this particular video had been used by the nurse and this was the first time fourthgrade students were included in the program. At the end of the video, the nurse went through a worksheet with the boys, addressing such topics as circumcision, nocturnal emissions, and semen. An opportunity for the boys to ask the nurse questions was then provided, but none were asked. The school nurse attributed this to the fact she was a woman and the boys were not comfortable discussing the subject with her. As in past years, following the sex education presentation, the boys then went to Collins’ classroom for a question and answer session. Before starting the session, Collins excused one student from the room because the student’s parents did not wish to have the child involved in the sex education program. Collins then proceeded to ask if the boys had any questions. Collins undertook this duty because he had been asked by a previous health nurse to solicit questions after sex education programs from the boys because the female nurse realized that the boys would be uncomfortable asking her questions. Collins was instructed to answer the boys’ questions as honestly as possible and he continued to carry out what had been an established practice for fifteen years. Questions were raised by the boys about circumcision, masturbation, nocturnal emissions and other topics from the film and worksheet. During the session, one of the boys also related that he had heard that two men could have sex and asked how this was possible. Collins preceded his explanation with the disclaimers that this type of conduct is frowned upon, most people do not believe in it, and the boys would find it gross. Collins then described oral and anal sexual intercourse in explicit language. On April 25, 1995, complaints from parents were received by the superintendent which were critical of what the grade school boys had heard from Collins during school the previous day. In essence, the complaining parents were concerned about the effect Collins’ answer to the question about homosexual intercourse would have on
the boys. An informal meeting was conducted, involving one boy’s parents, the superintendent, the principal, and Collins. At the conclusion of the meeting, Collins was advised by the superintendent that the matter was not resolved. Later that day, the superintendent took the matter to Board. Board directed the superintendent to send notice to Collins that a termination hearing would be scheduled before Board to consider his dismissal. A notice of hearing and charges was provided to Collins on April 28, 1995, which referenced the parental complaint as well as warnings by Collins’ evaluators in regard to lesson plans, instruction, maintenance of records and personal hygiene since 1985 that could be relevant as to his competence. On May 17, 1995, the hearing was held before Board, at which time witnesses and evidence were presented. . . . The high school principal testified that it was inappropriate and immoral for a teacher to discuss homosexual activities with fourth- and fifth-grade boys. However, she indicated that she did not have any evidence that the children had been harmed in any way by the activity. She also testified that there had been no increased absenteeism or discipline problems of any kind. Nor were there any complaints from the children about feeling uncomfortable around Collins. The superintendent testified without elaboration that the incident adversely affected Collins’ ability to perform his teaching duties. However, the superintendent also testified that there was no evidence of any adverse impact on the students. In fact, the superintendent had not even been in Collins’ classroom since the question and answer session to monitor for problems that may have developed because of the incident. Furthermore, he acknowledged that he had no evidence whatsoever that the children had lost confidence in Collins as a teacher and agreed that they evidently had some level of trust in Collins or they would not have been comfortable in asking the questions of him in the first place. The superintendent also indicated that he had no reason to question Collins’ character. At the conclusion of the hearing, Board voted to terminate Collins’ contract on the basis of incompetency. . . . Ignoring twenty-nine years of faithful service, the Board terminated Collins’ teaching contract
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Grounds for Termination of Tenured Teachers
on the basis that he was incompetent. This determination rested purely on his indiscreet answer with regard to homosexual activity—a subject which invariably invokes intense debate and undoubtedly stirred emotions in this case. It is undisputed that there is no evidence that the conduct of Collins complained of by Board violated any directive, regulation, rule, or order given to him by any administrator or Board. In fact, the evidence showed that the administration had abdicated total control over the sex education program to the health nurse. Neither the superintendent nor the Board took any steps to personally plan the program or place any limits on it. It is also undisputed that Collins had been asked by the previous health nurse to answer questions after sex education videos in the past, and had done so for the past fifteen years without incident. Even so, the Board terminated Collins’ employment on the basis of incompetence for one moment of poor judgment. “Incompetence” has been previously described by this court as “a relative term meaning lack of ability or fitness to discharge a required duty.” Hartpence v. Youth Forestry Camp, 325 N.W.2d 292, 296 (S.D. 1982) (quoting Black’s Law Dictionary 688 (5th ed. 1979)). Other courts have made it clear, however, that incompetence “does not invoke subjective analysis of standards of morality or professionalism which vary from individual to individual dependent on time, circumstances or custom.” . . . In Hartpence, we concluded that “the Commission’s findings of fact address only the isolated instance of appellee’s fall. Since incompetency arises from habitual and on-going actions, this finding does not support the Commission’s conclusion of incompetency.” 325 N.W.2d at 297. Similarly, the Faith School Board’s decision to terminate its contract with Collins on the basis of one ill-advised answer, honestly given, was not the type of habitual and ongoing action that would support Board’s conclusion that Collins was incompetent. . . . Nevertheless, there are times when only one incident may be of such magnitude or of such far reaching consequences that a teacher’s ability to perform his or her duties will be permanently impaired and a finding of “incompetence” would be proper. . . . However, there is no evidence that Collins’ conduct rose to such a level.
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There has been no showing that Collins’ teaching ability has been or will be impaired, or that any children have been detrimentally affected. . . . Nor has there been a showing that Collins is likely to exercise poor judgment in a similar situation in the future, since he has acknowledged that he used poor judgment in this case and regretted making the statement. . . . . . . Collins’ inappropriate explicitness on a single occasion can hardly amount to incompetence. . . . The question must then be asked: Where is the relationship between Collins’ ill-advised answer to the boys and the impairment of his capacity as a teacher? . . . While the superintendent makes the bare claim that the incident adversely affected Collins’ ability to perform his teaching duties, he admits that he has not bothered to sit in on any of Collins’ classes to actually note any problems. There have been no allegations that the students’ education has suffered in any way. Absences have not increased. Discipline problems have not increased. Moreover, Board had the ability, pursuant to school policies, to suspend Collins prior to his termination. Instead, they chose to allow him to continue teaching from the April 24th incident to the May 17th board hearing, impliedly admitting they were not worried about Collins’ ability to effectively teach his students after the incident. Furthermore, Board voted to extend Collins’ contract for another year on the very same night that they discussed Brown’s complaint that led to the hearing to determine if Collins should be dismissed. . . . The record contains no credible evidence that Collins’ teaching ability has been impaired or even that the incident in question has any connection with his continued effectiveness as a teacher. Accordingly, the decision of the circuit court is reversed and the case is remanded for reinstatement of Collins’ teaching position and for a determination of the amount of back pay that Collins is entitled, less any offsets. . . .
CASE NOTE Numerous court decisions have found that incompetence cannot be concluded from a single incident, but rather must arise from a course of conduct or a series of incidents. Tichenor v. Orleans Parish School Board, 144 So.2d 603 (La. App. 1962). Yet, it is clear that incompetence hinges not on the number of incidents, but
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rather on whether a single incident or a series of incidences was of such magnitude as to render a determination of unfitness to perform the duties of the job. Courts have commented: (a) Incompetency cannot be concluded from an isolated incident, but rather arises from habitual and ongoing actions, Hartpence v. Youth Forestry Camp, 325 N.W.2d 292 (S.D. 1982); (b) incompetency does not invoke a subjective analysis of standards of morality or professionalism, which vary from individual to individual dependent on time, circumstances, or custom, Belcourt v. Fort Totten Public School District, 454 N.W.2d 703 (N.D. 1990); (c) incompetency arises from habitual failure, Collins v. Iowa Liquor Control Commission, 252 Iowa 1359, 110 N.W.2d 548, 550 (1961) (“A person who habitually fails to perform his work with the degree of skill or accuracy usually displayed by other persons regularly employed in such work is incompetent. And the same is true of one who usually performs substantially less than others regularly so employed.”); (d) a Wyoming court held that “a single honest failure in the performance of one’s duties does not without more amount to incompetency,” McCoy v. Thompson, 677 P.2d 839 (Wyo. 1984); (e) the Nebraska Supreme Court has held that “evidence that a particular duty was not competently performed on certain occasions, or evidence of occasional neglect of some duty of performance, in itself, does not ordinarily establish incompetency or neglect of duty sufficient to constitute just cause for termination,” Sanders v. Board of Education, 200 Neb. 282, 263 N.W.2d 461 (1978); (f) a California court has concluded that allowing students to repeat vulgar language in papers prepared for class does not constitute incompetence of the teacher unless further evidence could be produced to show that the incident warranted a conclusion that the teacher was unfit to teach, Oakland Unified School District of Alameda County v. Olicker, 25 Cal. App. 3d 1098, 102 Cal. Rptr. 421 (1972); and (g) similarly, where a teacher of 20 years was arrested for three misdemeanors arising out of driving while intoxicated, the court found that the school district was unable to produce evidence that rationally related the incident to the teacher’s competence or turpitude or the proper performance of his duties as a classroom teacher; thus, the court ruled that the termination of the teacher’s employment was arbitrary
and capricious, In the Matter of the Termination of Dwayne Kibbe v. Elida School District, 996 P.2d 419 (N.M. 2000).
INSUBORDINATION Insubordination is a defiance of authority,22 a disobedience to constituted authority; it is a refusal to obey some order that a superior officer is entitled to give and have obeyed.23 Courts have defined insubordination as “a willful disregard of express or implied directions of the employer and a refusal to obey reasonable orders.”24 Charges of insubordination are not supportable if: (1) the alleged misconduct was not proved; (2) the existence of a pertinent school rule or a superior’s order was not proved; (3) the pertinent rule or order was not violated; (4) the teacher tried, although unsuccessfully, to comply with the rule or order; (5) the teacher’s motive for violating the rule or order was admirable; (6) no harm resulted from the violation; (7) the rule or order was unreasonable; (8) the rule or order was invalid as beyond the authority of its maker; (9) the enforcement of the rule or order revealed possible bias or discrimination against the teacher; or (10) the enforcement of the rule or order violated the First Amendment rights to free speech or academic freedom.25 Courts that require repetition and persistence of disobedience to establish insubordination26 attach much importance to “willfulness” in violation of a reasonable rule. Evidence of willfulness and intent in refusing to obey a reasonable order is obviously established where the refusal is repeated.27 Some courts have held that a finding of insubordination does not necessarily hinge on whether it is a repeated refusal to obey reasonable rules or requirements. In some instances, refusal to obey school requirements is of such a nature that repetition is not necessary. Because the key to insubordination is willfulness, insubordination can be established by a single incident where there is evidence that a one-time occurrence clearly established that the teacher intended to break the school directive.28 For example, where a teacher refused to leave an old school building and teach in a new one, the court found that the teacher’s actions were willful and thus both insubordinate and neglectful of duty.29
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Grounds for Termination of Tenured Teachers
In a case where a teacher was charged with insubordination for inappropriately punishing students and allowing card games to be played in study hall, the court ruled that there was no insubordination, even though the conduct was highly questionable, because the teacher ceased the activities after being admonished by the principal.30 In another insubordination case, a teacher was told not to use J. D. Salinger’s Catcher in the Rye in his classroom and had agreed not to use the novel. Afterward, he began to use the novel again and was requested to meet with the principal concerning the issue. The teacher walked out of the meeting after five minutes and was charged with two counts of insubordination: (1) breaking the previous agreement and (2) walking out of a conference. The school board upheld the charges and dismissed the teacher. Upon appeal, the court determined the dismissal was too severe. Although the courts do not generally review administrative sanction, this court felt that the school board’s punishment of the teacher was disproportionate to the offense and unfair, since students were not harmed and there was no indication of lack of fitness to teach.31 The failure of school administrators or the local school board to follow teacher evaluation procedures, as prescribed by state education agency regulations or state statutes, will prohibit a local board from discharging, demoting, or transferring a teacher for reasons having to do with insubordination, misconduct, or incompetency. Every detail of the evaluation procedures must be followed. This general rule was followed by a West Virginia court, which held that a teacher could not be terminated for insubordination if a school board (1) failed to comply with the specific requirements of the state board of education evaluation policy that provided for regular evaluation of teachers and (2) failed to deliberate concerning the teacher’s performance.32 The requirements necessary to validate a teacher ’s dismissal for insubordination have been summarized by the American Law Reports as follows: (1) Insubordination imports a willful disregard of express or implied directions of the employer and a refusal to obey reasonable orders. (2) Insubordination is defined as a disobedience of orders, infraction of rules, or a generally disaffected attitude
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toward authority; it is generally synonymous with contumaciousness, which indicates persistent, willful or overt defiance of, or contempt for, authority. (3) Insubordination is a constant or continuing intentional refusal to obey a direct or implied order, reasonable in nature, and given by and with proper authority.33
In jurisdictions expressly requiring “willfulness” as an element to be proved to establish teacher insubordination, it has been held that the proof of willfulness required for insubordination may be satisfied by a single intentional act. In summary, in cases where insubordination was not upheld by the courts, one or more of the following were true in most instances: (1) the teacher ’s motive for violating the rule was not established; (2) no actual harm resulted from the violation; (3) the punishment was not proportional to the offense; (4) the rule or order that was broken was unreasonable; (5) the rule or order that was broken was beyond the authority of the maker; or (6) the rule or order that was broken violated a constitutional right of the teacher.34
Insubordination Can Be a Single Incident of Willful or Intentional Disobedience
Gaylord v. Board of Education, Unified District No. 218, Morton County Court of Appeals of Kansas, 1990. 14 Kan. App. 2d 462, 794 P.2d 307.
JOHN W. WHITE, District Judge, Assigned: Steve Gaylord appeals from the district court’s ruling affirming the termination of his teaching contract pursuant to K.S.A. 72-5436 et seq. by the Board of Education, Unified School District No. 218, Morton County, Kansas (Board). Gaylord argues that there was not substantial evidence to support the finding of insubordination and that the Board’s decision to terminate the contract was, therefore, arbitrary and capricious. We affirm.
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In April 1987, the Board voted to renew Gaylord’s teaching contract for the 1987–88 school year. Gaylord decided to explore employment opportunities elsewhere and scheduled a job interview in Bovina, Texas, for May 21, 1987. Gaylord requested personal leave for that day, which fell during the last week of the school year. Principal Steve Barnes denied the request pursuant to the negotiated agreement, which forbade teacher absences the first or last week of any semester. Barnes told Gaylord that Superintendent Kenneth Fowler was the only one who could grant personal leave during that time period. Fowler also denied Gaylord’s request. Gaylord’s wife called Barnes on the morning of May 21 and reported Gaylord was ill and would not be at work. Later that day, Fowler received a call from the high school principal in Bovina soliciting a recommendation for Gaylord. From that conversation, Fowler learned Gaylord had been in Bovina that morning. The following day, Gaylord completed a sick leave form and attached a note from his physician. Fowler called Gaylord to his office, told him he knew about the Texas interview, requested his keys, and told him to leave school property. Gaylord was later notified of the Board’s intent to terminate his contract. The reasons given for the Board’s action were insubordination, failure to follow Board policy, and abusive treatment of students. . . . The only issue to be considered for review by this court is the charge of insubordination. There is no contention that the Board acted outside the scope of its authority but only whether there was substantial evidence to support its finding. . . . Insubordination is defined as “disobedience to constituted authority, refusal to obey some order which a superior officer is entitled to give and have obeyed. Term imports a willful or intentional disregard of the lawful and reasonable instructions of the employer.” Black’s Law Dictionary 720 (5th ed. rev. 1979). . . . Although Kansas has not addressed insubordination in the context of teacher termination cases, in other jurisdictions insubordination has been found where the teacher refused to accept a teaching or school assignment, refused to admit a student to class, or has been absent without authorization. . . . Some courts have found insubordination in a single incident. . . . Other courts have concluded
insubordination can only occur when there is a constant or persistent course of conduct. . . . In Ware v. Morgan Cty. School D. No. RE-3, 748 P.2d 1295, 1300 (Colo. 1988), the court stated that, by interpreting insubordination to include the willful or intentional disobedience of a reasonable order on a particular occasion, we provide the school board with the necessary latitude to determine whether, in light of community standards and subject to judicial review, the teacher’s conduct on the occasion in question was sufficiently serious or aggravated to warrant an ultimate finding of insubordination and the serious sanction of dismissal. . . .
. . . The facts show Gaylord attempted to take, and was twice denied, a personal day during a time specifically prohibited by the negotiated agreement. Failing to secure permission, he had his wife call and report his illness on the day in question. He then drove to Texas to interview for a job and, upon his return, filled out an absence sheet claiming illness as the reason for his absence. Under the application of the community standards test articulated in Ware, substantial evidence exists to support the finding of insubordination warranting dismissal. . . . The Board acted within the scope of its authority, there was substantial evidence to support its findings, and there is no evidence that the Board acted fraudulently, arbitrarily, or capriciously. The decision of the district court is affirmed.
Insubordination and Inefficiency in Teaching Are Grounds for Dismissal of Tenured Teacher
In re Termination of James E. Johnson Court of Appeals of Minnesota, 1990. 451 N.W.2d 343.
GARDEBRING, Judge. The school board passed a resolution terminating the employment of James Johnson, a tenured teacher, based upon the independent
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Grounds for Termination of Tenured Teachers
hearing examiner ’s findings of inefficiency in teaching and insubordination. Johnson appeals, contesting the sufficiency of the evidence to terminate his employment and the propriety of the procedures followed by the school in conducting its investigation. We affirm. Prior to his termination, relator James Johnson was a tenured mathematics teacher employed by respondent Independent School District No. 709 (Duluth) since 1967. He taught seventh and ninth grade math at several schools within the school district. Beginning in 1970, he received intermittent performance evaluations, both formal and informal, some negative and some rating his teaching ability as satisfactory or better. In general, the evaluations noted four areas of concern: excessive failure rates, high volume of transfer requests, poor relationships with students and parents, and inappropriate teaching methods. In some instances, specific instructions were provided to Johnson as to required changes in classroom practice and teaching methodology. On September 17, 1987, Johnson received a letter from Richard Wallin, Director of Secondary Education, outlining various directions Johnson must follow to improve his teaching performance. . . . On January 13, 1988, Johnson was charged with inefficiency in teaching, conduct unbecoming a teacher, and insubordination, and was suspended without pay, effective immediately. The charges outlined the following deficiencies: (1) poor rapport with students; (2) insufficient communications with parents; (3) lack of student progress; (4) inappropriate use of class time; and (5) failure to follow the school’s adopted mathematics curriculum. A hearing was conducted before an independent hearing examiner, a retired district court judge. The hearing lasted 29 days over a seven-week period in September and October 1988. On May 11, 1989, the hearing examiner issued his findings and concluded that while there were insufficient grounds for terminating on the basis of conduct unbecoming a teacher, there was substantial evidence to recommend termination for insubordination and inefficiency in teaching. On May 31, 1989, the school board adopted the examiner’s recommendations and immediately terminated Johnson’s employment. Is the school board’s decision to terminate Johnson supported by substantial evidence?
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A school board’s decision to terminate a teacher will not be set aside on appeal unless the decision is fraudulent, arbitrary, unreasonable, not supported by substantial evidence on the record, not within the school board’s jurisdiction or is based on an erroneous theory of law. . . . This matter was extensively heard by the hearing examiner. Eighty-three witnesses were called and 157 exhibits were received in evidence. The transcript of the proceedings consists of 29 volumes containing 6455 pages. . . . Inefficiency in teaching and insubordination are two independent statutory grounds for termination. Minn. Stat. § 125.17, subd. 4(1), (3) (1988). . . . We find that there is substantial evidence in the record to support the school board’s decision to terminate Johnson’s employment. Evidence in the record demonstrates Johnson’s poor rapport with students and insufficient communication with parents. The administration received numerous complaints from students and parents wherein the students describe feelings of frustration and confusion regarding Johnson’s teaching methods and class assignments. Many of these complaints were accompanied by requests for transfer out of Johnson’s class. Administrators observing Johnson’s classes between 1977 and 1988 repeatedly noted the poor communication between Johnson and his students. The record also contains evidence substantiating the charge of lack of student progress. Even judged by his own techniques, the evidence supports the finding that Johnson’s students were not progressing satisfactorily. Although the test scores of highly motivated students improved, the scores of the other students remained the same or worsened. Many students failed his examinations. Testimony by the math teacher who took over Johnson’s class after his suspension reveals that Johnson’s students were behind in the curriculum. While evidence of requests by students and parents for transfer out of Johnson’s classes are not indicative of poor teaching, it demonstrates a pattern of dissatisfaction with Johnson’s teaching methods which is a proper area of concern for the school board to address. Furthermore, the district’s attention to Johnson’s grading practices and failure rates was appropriate, and evidence on these issues supports the finding of teaching inefficiency. While Johnson has argued that he should not be
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evaluated on the attitudes of his students and their unwillingness to learn, evidence on grades, and in particular the large number of student failures, provides evidence of Johnson’s inability to teach the mandated curriculum. Although the assignment of a grade may be entitled to first amendment protection, academic freedom is not absolute. . . . Johnson was responsible for transmitting basic information to secondary school students. The district adopted a specific curriculum for achieving this objective. Johnson was terminated due to an inability to impart this basic knowledge, not because of the specific grades he assigned. We find no grounds to support Johnson’s claim that his right to academic freedom was violated. We note, however, that the school district’s September 1987 directive to Johnson that his grade distributions not deviate by more than two percent from distributions in other similar classes was inappropriate. Such a rigid, numerical grading standard appears to us to potentially interfere with a teacher ’s legitimate need for classroom flexibility. School districts are cautioned in this area. In reviewing the entire record, we conclude there is substantial evidence supporting the finding that Johnson was inefficient in teaching. Insubordination is a “constant or continuing intentional refusal to obey a direct or implied order, reasonable in nature, and given by and with proper authority.” . . . Johnson was specifically directed by Wallin and school principals to improve his relationship and rapport with students and parents. He was ordered to provide worksheets containing the assigned problems instead of having the students copy the problems off the blackboard. He was also directed to furnish each student with copies of tests and any material used to supplement the textbook. In light of the numerous complaints received by the administrators, these orders are reasonable. Although Johnson participated in several teaching workshops, he continually refused to change his instructional methods. The record contains substantial evidence to support the finding of insubordination. . . . Based upon the entire record, we find there is substantial evidence to support the school board’s decision to terminate Johnson’s employment. Affirmed.
IMMORALITY Teachers must be of good moral character, and statutory requirements pertaining to the morality of teachers are constitutional.35 Immorality has been interpreted to be such a “course of conduct as offends the morals of the community and is a bad example to the youth whose ideals a teacher is supposed to foster and elevate.”36 Although the term immorality has been attacked as unconstitutionally vague,37 it has generally been upheld by the courts, especially when it relates to fitness to teach and there is a rational nexus between the prohibited activity and the individual’s conduct and decorum as a teacher. Immorality may include both heterosexual and homosexual activities, but it does not pertain to exclusively sexual activities: [W]e note that statutes from colonial days forward recognize the unique position of teachers as examples to our youth and charge them to “exert their best endeavors to impress on the minds of children and youth committed to their care and instruction” the values basic to our society . . . , requiring school committees to have full and satisfactory evidence of a teacher’s moral character. This special role of teachers on impressionable and not fully tutored minds distinguished them from other public officials.38
IMMORAL CONDUCT Immoral conduct is that which is “willful, flagrant, or shameless and which shows a moral indifference to the opinions of the good and respectable members of the community.” 39 Where a tenured teacher tampered with student test results, substantially raising the reported scores to exceed state test goals, the court agreed that such behavior constituted immoral conduct and affirmed the school board’s dismissal of the teacher.40 Similarly, altering school files to make school programs appear to comply with state and federal education laws constitutes professional misconduct, and warrants discharge and revocation of teaching certificate.41 Because of the exemplary nature of teaching and the high community expectations of teachers, the courts have left little question about the seriousness of sexual involvement with students. Courts will uphold school boards in dismissing teachers even without absolute proof of sexual contact with students. In a case where a teacher enjoyed a reputation as a good teacher, with
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Grounds for Termination of Tenured Teachers
excellent rapport with students, but made sexual remarks and innuendos to female students as “good natured horseplay,” the court found that there existed a nexus attaching to the teacher’s classroom effectiveness and the questionable conduct, and the teacher was therefore unfit to teach.42 Sexual involvement with persons who are not students may have a logical nexus with the proper conduct of the school, and such activities may therefore be adjudged immoral. The courts, when dealing with cases of sexual activity of teachers with nonstudents, attempt to determine if there has been an impact on teachers’ fitness to teach and whether the activities were public or private. In a California case, a 48-year-old elementary teacher had her life certificate revoked by the state board of education for immorality. The plaintiff was arrested at a private club by an undercover police officer after he watched her commit three separate acts of oral copulation, a violation of the penal code. After plea-bargaining, the charges were reduced to the misdemeanor of “outraging public decency.” The teacher and her husband had also appeared on television, in disguise, discussing unconventional sexual lifestyles. Even though the teacher introduced into evidence her classroom evaluations, which were satisfactory, and a contract from the local board offering to rehire her, the court held that the state board was correct in revoking her certificate. The evidence showed that the sex acts were witnessed by several strangers in a semipublic atmosphere and the “[p]laintiff’s performance certainly reflected a total lack of concern for privacy, decorum or preservation of her dignity and reputation.”43 The court said a teacher “in the public school system is regarded by the public and pupils in the light of an exemplar, whose words and actions are likely to be followed by children coming under her care and protection.” Obviously, participation in sex orgies fell short of this standard.44 In order to dismiss a teacher who is homosexual for immorality, the school district must demonstrate a rational nexus between the homosexual conduct of the teacher and fitness to teach. Factors such as adverse effect on students or fellow teachers, adversity anticipated within the school system, surrounding circumstances, and possible chilling effects on discipline may be used to establish unfitness.45
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Tenured teachers can be dismissed for sexual conduct that is determined to be detrimental to the school, whether that conduct is of a heterosexual or a homosexual nature. However, the nexus between the activity and the decorum of the school and integrity of the teaching process must be shown. If, however, the sexual activity in public is proscribed by state statute, then the need to establish such a nexus is obviated by the violation of state law. Guilt of criminal conduct has been held to constitute immorality per se. In this regard, dismissals of tenured teachers for immorality, based upon the fact that the teachers were convicted of crimes, are valid. A “guilty verdict of criminal conduct will support a finding of immorality.”46
Sexual Relationship with Student in Prior Teaching Employment Constitutes Immorality
Toney v. Fairbanks North Star Borough School District Supreme Court of Alaska, 1994. 881 P.2d 1112.
MOORE, Chief Justice. In March 1992, David Toney was fired from his position as a tenured teacher with the Fairbanks North Star Borough School District (the “District”). The termination was based on evidence establishing that Toney had engaged in a sexual relationship in 1980 with a 15-year-old student while Toney was a teacher in Boise, Idaho. Toney appealed his termination to the superior court, which granted summary judgment in favor of the District. The court concluded that Toney’s failure to disclose the relationship constituted a material misrepresentation and breach of the contractual covenant of good faith. The court also found that the relationship itself supported termination under AS 14.20.170(a). We affirm the superior court’s grant of summary judgment in favor of the District on the latter ground. In 1980, Toney was employed as a teacher at Capitol High School in Boise, Idaho. In December
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of that year, he entered into a sexual relationship with a 15-year-old student, Traci F. At that time, Toney was in his early thirties. Shortly thereafter, Traci became pregnant with Toney’s child. She then transferred to a school for pregnant teenagers. In November 1981, Traci gave birth and, with the consent of all parties, the child was adopted. In October 1981, just prior to the birth of the child, Toney and Traci’s father entered into a confidential written agreement concerning Traci’s medical expenses and other costs relating to the child’s birth. In the same document, Toney also agreed to “submit his resignation or take a leave of absence from the faculty of Capitol High School for the second semester of the 1981–82 school year and for the next school year in order to permit Traci to attend Capitol High School and to graduate therefrom.” Pursuant to this agreement, Toney resigned from teaching in the Boise School District before the beginning of the 1982 spring semester. Meanwhile, in the spring of 1981, Toney completed an application for employment with the Fairbanks North Star Borough School District. The application was dated February 3, 1981. However, it was not stamped as received by the District until April 28, 1981. Included in this application were Toney’s assertions that he had not been asked to resign for any reason from a teaching position and that he had not been convicted of any offense involving moral turpitude. In August 1982, Toney was contacted by Bill Rogers, a principal with the District, regarding his application. Toney reaffirmed his interest in a position with the District. Rogers then contacted Don Johnson, the principal of Capitol High School in Boise, who gave Toney a positive recommendation. Mr. Johnson did not reveal that Toney had resigned from Capitol High School at midyear during the 1981–82 school year. Toney then came to Fairbanks to interview for a teaching position. During the interview, Toney did not disclose his relationship with Traci, nor did he disclose that he had not been employed as a teacher during the spring semester of the 1981– 82 school year. Following the interview, Toney was recommended to fill a position with the District. Following this recommendation, Toney was asked to complete an “affidavit of teaching
experience” and a “teacher’s personal record” for the District’s files. Toney incorrectly indicated on both documents that he held a fulltime teaching position with the Boise School District for the entire 1981–82 school year. A non-tenured contract was executed on September 17, 1982. In 1992, after learning that Toney was teaching in Fairbanks, Traci contacted District personnel and informed them of her prior relationship with Toney. After investigating the allegations, the District terminated Toney by letter dated March 26, 1992. The letter stated that Toney’s firing was based on his failure to disclose to the District his relationship with Traci and his resignation pursuant to the agreement with Traci’s father. In addition, the letter stated that Toney’s conduct supported termination under AS 14.20.170(a) (2)–(3), on the grounds that it constituted “immorality and substantial noncompliance with the school laws of the state, the regulations or bylaws of the Department of Education, the bylaws of the District and the written rules of the superintendent.” Toney appealed his termination to the Borough’s Board of Education. The Board upheld the dismissal by a vote of six to one. Toney then appealed to the superior court. Both parties filed motions for summary judgment. The superior court granted the District’s motion in an Opinion and Order dated August 4, 1993. The court held that Toney’s failure to reveal the relationship and the circumstances surrounding his resignation constituted misrepresentation and a breach of the contractual duty of good faith. The court further held that Toney’s actions supported termination under AS 14.20.170(a)(2)–(3). Toney now appeals. . . . Under AS 14.20.170(a)(2), a teacher, including a tenured teacher, may be dismissed for “immorality, which is defined as the commission of an act that, under the laws of the state, constitutes a crime involving moral turpitude.” A criminal conviction is not necessary to support a teacher’s dismissal under this provision. . . . In addition, it is well-established that there need not be a separate showing of a nexus between the act or acts of moral turpitude and the teacher’s fitness or capacity to perform his duties. . . . As the court in Brown stated, “[i]f a teacher cannot abide by these standards his or her fitness as a teacher is
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Grounds for Termination of Tenured Teachers
necessarily called into question.” . . . Thus, in the present case, so long as the District had sufficient evidence to conclude that Toney committed an act or acts which constituted a crime of moral turpitude, the dismissal is valid, even in the absence of a conviction. . . . Toney acknowledges that he engaged in a sexual relationship with Traci when she was 15 years old and a student of his. This conduct satisfies the elements of the crimes of sexual abuse of a minor in the second and third degree under Alaska law as presently enacted. . . . Toney’s conduct also constitutes a crime under Alaska law as it existed in 1981, under present Idaho law, and under Idaho law as it existed in 1981. Toney does not dispute that his conduct with Traci was criminal, nor does he deny that his actions constituted crimes of moral turpitude. Instead, he argues that the statute authorizing dismissal for such acts does not reach conduct engaged in before a teacher is hired by a school district. In addressing this argument, the superior court noted that the language of AS 14.20.170(a) (2) “does not explicitly or implicitly limit the statute’s application to . . . acts that occur only while a teacher is under contract with an Alaska school district.” The court further found that the legislative history of the statute offered no support for Toney’s argument. Finally, the court recognized that Toney’s contention is contrary to sound public policy: As the Borough points out, the effect of such an interpretation would be contrary to public policy as it would allow an individual who commits an act of moral turpitude, and who successfully conceals his/her behavior from a school board, to be immune from dismissal upon subsequent discovery of the conduct.
Thus, the court concluded that Toney’s conduct “establish[ed] immorality under AS 14.20.170 (a)(2) and [was] sufficient grounds for his dismissal.” . . . Toney’s sole argument is that AS 14.20.170 (a) (2) does not provide for the dismissal of a tenured teacher on the grounds of conduct occurring prior to the teacher’s hiring. This argument is nonsensical. Nothing in the language of the statute or its legislative history suggests that
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such a limited interpretation is appropriate. In addition, as the superior court noted, such a construction would conflict with public policy, since it would immunize from dismissal a teacher who had engaged in illegal and immoral conduct prior to hiring, but who had successfully concealed such conduct. We therefore affirm the superior court’s conclusion that Toney’s actions were sufficient to support his dismissal under AS 14.20.170(a)(2). Toney’s criminal sexual relationship with a minor student is adequate grounds for his dismissal under AS 14.20.170(a)(2). The superior court’s opinion and order upholding Toney’s dismissal is therefore AFFIRMED.
CASE NOTES 1. Moral Turpitude. Moral turpitude is “[a]n act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between man and man.” Black’s Law Dictionary, 7th ed. (St. Paul, Minn.: West, 1999), p. 1160. Moral turpitude is difficult to clearly define because it is premised on the moral standards of the community. The courts generally separate moral turpitude into two categories: sexual misconduct and conduct involving deceit or fraud. Beyond these categories there appears to be little order or consistent rationale. See John Trebilcock, Off Campus; School Board Control over Teacher Conduct, 35 Tulsa L. J. 445 (2000); Morrison v. State Board of Education, 1 Cal. 3d 214, 82 Cal. Rptr. 175, 461 P.2d 375, 379–87 (Cal. 1969). For example, the dismissal of a teacher for a romantic relationship with a student has been upheld as moral turpitude. Ballard v. Independent School District No. 4 of Bryan County, 320 F.3d 1119 (10th Cir. 2003) (appeal stayed pending resolution of a question of state law). See also Ballard v. Independent School District No. 4 of Bryan County, 77 P.3d 1084 (Okla. 2003). Dismissal for moral turpitude was held to be appropriate where a teacher made numerous false changes to student transcripts. Hill v. Independent School District No. 25, 57 P.3d 882. (Okla. Ct. App. 2002).
Copyright 2010 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.
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Moral turpitude has also been defined as: Any conduct contrary to justice, honesty, and good morals. [It] implies something immoral in itself regardless of whether it is punishable by law. The doing of the act itself, and not its prohibition by statute determines the moral turpitude. The elements of intent and knowledge are regarded as important, and if the wrong is unintentional or if the act is made improper by statute without regard to the mental element, it is not moral turpitude.
The Oklahoma Supreme Court has said that moral turpitude is a high standard to meet. In Kelley, for example, the court held that “an isolated conviction of public drunkenness” was not a crime of moral turpitude because it was not “the kind of offense which signifies an inherent quality of baseness, vileness and depravity denoting moral turpitude.” Kelley v. City of Tulsa, 569 P.2d 455, 457 (Okla. 1977); see also Andrews v. Independent School District No. 57, 12 P.3d 491, 495 (Okla. Ct. App. 2000). Revocation of the teaching certificates of two teachers for growing 52 marijuana plants in a greenhouse has been upheld by a Florida court because their actions violated the moral standards of the community. The court concluded that since teachers are in a leadership capacity and are obligated to maintain a high moral standard in the community, the possession of marijuana plants, and the ensuing publicity, seriously impaired their abilities to be effective teachers. Adams v. State Professional Practices Council, 406 So.2d 1170 (Fla. Dist. Ct. App. 1981), petition denied, 412 So.2d 463 (Fla. 1982). In an earlier California decision, a teacher was found not to be guilty of moral turpitude where he was found to be cultivating only one marijuana plant out of curiosity. Board of Trustees v. Judge, 50 Cal. App. 3d 920, 123 Cal. Rptr. 830 (1975). Conviction for mail fraud constitutes moral turpitude justifying revocation of a teaching certificate. Startzel v. Pennsylvania Department of Education, 128 Pa. Commw. 110, 562 A.2d 1005 (1989). 2. Neglect of Duty. A school board may validly dismiss for neglect of duty a teacher who while serving as cheerleader sponsor drank beer with the cheerleaders in violation of a school rule prohibiting the drinking of alcoholic
beverages. The dismissal of the teacher in this case was upheld by the court even though the hearing officer ’s recommendation to the board was that the teacher be retained. The court said, in relating “immorality” to “neglect of duty,” that “neglect of duty is directly related to the teacher’s fitness to teach”; “neglect of duty occurs when a teacher fails to carry out his or her obligations and responsibilities in connection with classroom or other school-sponsored activities.” Blaine v. Moffat County School District Region No. 1, 748 P.2d 1280 (Colo. 1988). Willful neglect of duty may be interpreted broadly to include a teacher’s repeated failure to follow directions of the school principal. Where a teacher repeatedly sent students to the principal’s office without escorts, the court upheld the tenured teacher’s dismissal, saying it would “neither substitute its judgment for the judgment of the school board nor interfere with the board’s bona fide exercise of discretion.” Wise v. Bossier Parish School Board, 851 So.2d 1090 (La. 2003). Willful neglect of duty imposes a relatively high standard upon a school board to successfully effectuate a dismissal. Where a tenured teacher reported that a loaded gun was stolen from his wife’s car while it was parked outside of his classroom and the school board charged him with willful neglect of duty and dismissed him, the Louisiana Supreme Court overturned the dismissal and ordered the teacher to be reinstated with back pay. According to the court, the board did not have a rational basis supported by substantial evidence to document “willful neglect.” Howard v. West Baton Rouge Parish School Board, 865 So.2d 708 (2004). The duties required of a teacher by a board, when evaluating neglect of duty, were outlined in an Oregon case. The court said that the essential features are: (1) the duty of a teacher to serve as a role model for students and community of good citizenship and law-abiding behavior; (2) the duty to maintain effective relationships with students, parents, and other staff of school; and (3) the duty to teach the approved school curriculum. Jefferson County School District No. 509-J v. FDAB, 311 Or. 389, 812 P.2d 1384 (1991).
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Grounds for Termination of Tenured Teachers
Tenure Contract May Be Terminated for Off-Campus Immoral Conduct
Board of Education of Hopkins County v. Wood Supreme Court of Kentucky, 1986. 717 S.W.2d 837.
WINTERSHEIMER, Justice. . . . The issue is whether the contracts of tenured teachers may be terminated for immoral conduct or conduct unbecoming a teacher for off-campus activities involving students when no written records of such conduct are in the personnel file. In 1983, a Hopkins County grand jury while investigating a murder received testimony from two 15-year-old girls that two days prior to the murder they had purchased 10 marijuana cigarettes and had taken the marijuana to the apartment of the Wood brothers where the girls and the Woods and others smoked some of the marijuana. The grand jury suggested that the matter be investigated further by the county attorney and subsequently the Woods were arrested in a misdemeanor charge of contributing to the delinquency of a minor. In district court, on September 20, 1983, the Woods both signed a statement pleading guilty to unlawful transaction with a minor in violation of KRS 530.070, a misdemeanor. Officials of the Board of Education took the statements of the two girls on September 1, 1983, and on the basis of these statements, the Wood brothers were suspended from their teaching positions on September 6 for immoral character and conduct unbecoming a teacher. A hearing was conducted on September 28. At the hearing the Board presented the guilty plea filed in district court and the two girls as witnesses. The Woods denied smoking marijuana and three other witnesses testified that they did not see any marijuana smoking. Character witnesses also testified on behalf of the Woods. At the conclusion of the hearing the Board voted unanimously to terminate the Wood brothers. . . .
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The Wood brothers argue that the Board has no right to terminate their teaching contracts by reason of acts committed during off-duty hours, during the summer months before the school year began and in the privacy of their own apartment. . . . The evidence indicates that there was serious misconduct of an immoral and criminal nature and a direct connection between the misconduct and the teachers’ work. The Wood brothers pled guilty in district court to an unlawful transaction with a minor after having entertained two 15-year-old female students in their home at a marijuana-smoking party. . . . The purpose of teacher tenure laws is to promote good order in the school system by preventing the arbitrary removal of capable and experienced teachers by political or personal whim. It is not to protect those who violate the criminal law. A teacher is held to a standard of personal conduct which does not permit the commission of immoral or criminal acts because of the harmful impression made on the students. The school teacher has traditionally been regarded as a moral example for the students. . . . Conduct unbecoming a teacher or immoral conduct, unless limited to behavior occurring on the school premises during school hours, could not possibly be documented by a record of school supervisory personnel in a manner that is probative or appropriate as contemplated by the statute. Such records relate to in-school professional performance, not off-school activities. Therefore to give the statute an absolutely literal interpretation leads to a patently absurd result. We must construe statutes of this nature in accordance with their purpose, which means making an exception to the literal language in the present statute to avoid an absurd and unworkable result. . . . Great care must be taken to ensure that proof of conduct of an immoral nature or conduct unbecoming a teacher which is sufficient to merit discharge of a tenured teacher should be of the same quality as required by other subsections of the statute, that is, written documentation from impartial sources to substantiate the charges, as in the present case, or its substantial equivalent. In addition, the conduct, when it occurs in a context other than professional competency in the classroom, should have some nexus to the teacher’s
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occupation, as was true in this case which involves smoking marijuana with two students. . . . It was not the intention of the legislature to subject every teacher to discipline or dismissal for private shortcomings that might come to the attention of the Board of Education but have no relation to the teacher’s involvement or example to the school community. The power of the Board to discipline teachers is not based on personal moral judgments by Board members. It exists only because of the legitimate interests of the government in protecting the school community and the students from harm. . . . It is the holding of this Court that the contracts of tenured teachers may be terminated for conduct unbecoming a teacher or immoral conduct involving off-campus activities involving students notwithstanding written records indicating a satisfactory teacher performance. The decision of the Court of Appeals is reversed and the judgment of the circuit court is reinstated. All concur.
CASE NOTES 1. Off-Campus Sex. Consensual sexual conduct between a teacher and an adult of the opposite sex, committed off-campus, cannot without other extenuating circumstance constitute “good cause” for a school board’s rejection of a superintendent’s nomination of the teacher for reemployment. Sherbourne v. School Board of Suwannee County, 455 So.2d 1057 (Fla. Dist. Ct. App. 1984). 2. Commission of a Crime. Statutes in a number of states provide that teachers may be dismissed for “a felony or crime of moral turpitude.” A felony is “[a] crime of a graver or more atrocious nature than those designated as misdemeanors . . . , [g]enerally an offense punishable by death or imprisonment in the penitentiary.” Black’s Law Dictionary, 4th ed. (St. Paul, Minn.: West), p. 744. Where a teacher was charged with theft, assault and battery, and fleeing a police officer, the court upheld his dismissal and stated, “[I]t cannot be said that a teacher’s conduct outside the classroom bears no reasonable relation to his qualifications for employment.” Gary Teachers Union, Local 4, American Federation of Teachers v. School City of Gary, 165 Ind. App. 314, 332 N.E.2d 256 (1975).
Dismissal for unfitness is not necessarily dependent on criminal conviction. A school board may dismiss a teacher for an arrest for a felony, even though the trial does not result in conviction. In a case where a teacher was charged with a criminal act of engaging in oral copulation with another man and was acquitted of criminal charges, the school board dismissed the teacher for immorality and unfitness. The state code provided for school boards to dismiss teachers for sex offenses. The court held for the board and said that it was the responsibility of the board to determine the fitness of the employee even if acquitted of criminal charges. Board of Education v. Calderon, 35 Cal. App. 3d 490, 110 Cal. Rptr. 916 (1973), cert. denied, 414 U.S. 807, 95 S. Ct. 19 (1974). 3. Misdemeanor. Included in the area of criminal convictions is the dismissal of a teacher for a misdemeanor. Misdemeanors are “[o]ffenses lower than felonies and generally those punishable by a fine, penalty, forfeiture, or imprisonment otherwise than in [a] penitentiary.” Black’s Law Dictionary, 7th ed. (St. Paul, Minn.: West, 1999), p. 1150. In a case where a tenured teacher was arrested and charged with “disturbing the peace by being under the influence of intoxicants, attempting to fight, and display of a gun,” his dismissal was upheld for good and just cause, and the board’s action was held not to be arbitrary, irrational, or unreasonable. Williams v. School District No. 40 of Gila County, 4 Ariz. App. 5, 417 P.2d 376 (1966). 4. Drugs and Immorality. Teachers, in recent years, have been dismissed for possession and use of controlled substances. Since state statutes usually do not specify dismissal for drugs, teachers who have been involved with drugs have been dismissed under statutory provisions regarding fitness to teach, moral turpitude, immorality, and misdemeanor and felony convictions, plus other good and sufficient cause. Such an example was found in Georgia, where a tenured teacher was arrested for possession of cocaine, glutethimide, and marijuana and pleaded guilty to violating that state’s Controlled Substances Act. Since it was a first offense, the teacher was placed on probation. Because of the publicity, she was
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Grounds for Termination of Tenured Teachers
transferred to two other teaching positions during the remainder of the year. Finally, the board dismissed her for “immorality” and “other good and sufficient cause” based on her guilty plea. The court said, “[T]he proven fact of the teacher’s possession of three dangerous drugs is evidence from which ‘immorality’ may be inferred, even in the absence of criminal purpose or intent.” Dominy v. Mays, 150 Ga. App. 187, 257 S.E.2d 317 (1979). A similar result was reached in Chicago Board of Education v. Payne, 102 Ill. App. 3d 741, 58 Ill. Dec. 368, 430 N.E.2d 310 (1981).
A Teacher Who Had Sexual Relationship with a Student of Another School Is Unfit to Teach
Elvin v. City of Waterville Supreme Judicial Court of Maine, 1990. 573 A.2d 381.
McKUSICK, Chief Justice. In January 1989 the City of Waterville discharged plaintiff Kathleen Elvin from her job as a fourth grade teacher on the findings of the Waterville Board of Education, pursuant to 20-A M.R.S.A. § 13202 (1983), that she had proven “unfit” to teach and that her continued services were “unprofitable” to the school system. On her appeal, we find no reversible error in the Board of Education’s findings and so affirm, as did the Superior Court (Kennebec County, Alexander, J.). Elvin, a divorcee, lives in Winslow with her two children. In the spring of 1987, Elvin engaged in sexual intercourse several times with a fifteen-year-old neighbor who occasionally babysat for her children and did errands for her. The boy, a public high school sophomore, turned sixteen in June some weeks after the first act of intercourse, and Elvin continued to maintain a sexual relationship with him for several months thereafter. As a result of these acts, Elvin was indicted on two counts of sexual abuse of a minor on
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May 4, 1988. The sexual abuse charges were dropped in exchange for Elvin’s nolo contendere plea to one count of assault stemming from the sexual contact. Shortly after being indicted, Elvin was suspended with pay from her teaching position. Pursuant to 20-A M.R.S.A. § 13202, the Board held a hearing in January 1989 and voted to dismiss Elvin from her fourth grade teaching job. . . . The employment of public school teachers in Maine is controlled by statute. “A school board, after investigation, due notice of hearing and hearing thereon, shall dismiss any teacher . . . who proves unfit to teach or whose services the board deems unprofitable to the school.” 20-A M.R.S.A. § 13202. The Board concluded that Elvin was unfit to teach and that her services were unprofitable to the school. . . . Based upon the evidence before the Board, we cannot say that its decision to dismiss Elvin was irrational or arbitrary. The Board found as a fact that Elvin’s “relationship [with the boy] was her own choice, fully consensual, and of long duration.” It based its ultimate finding that Elvin had proven unfit to teach upon, inter alia, her poor judgment, her lack of concern for the emotional welfare of a public school student, and her impaired ability to deal with other sexually exploited students due to public awareness of her course of conduct. Each of these findings is supported by substantial evidence in the record. Elvin admitted that she exercised poor judgment. In the Rule 11 hearing at which Elvin pleaded nolo contendere to the assault charge, she agreed to pay part of the victim’s cost of psychological counseling for the reason that, as her counsel acknowledged, she was partly responsible for his current psychological problems. Elvin also admitted that she lied about her conduct when initially questioned by authorities and that she was aware of the boy’s psychological problems prior to their sexual relationship. According to the Board, Elvin’s actions “put more pressure on the victim” and “aggravated” the situation. Two school administrators testified that in their professional opinions, returning Elvin to the classroom “would be very detrimental to the schooling system,” would adversely affect the system’s credibility in dealing with sex abuse cases, would damage the school’s reputation, and would cause the public to “los[e] respect and trust.” Upon these findings
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the Board rationally concluded that Elvin was unfit to teach. The Board further determined that continuation of Elvin’s services would be unprofitable to the school system. In support of this conclusion, the Board found that “the publicity associated with this case certainly has made the public aware of the charges and the sexual relations that [Elvin] had with a young boy from a neighboring school” and that public awareness of her conduct will “undermine her ability and her reputation in dealing with . . . students and parents.” The Board also found that her continued employment “will undermine the administration’s program dealing with sexual abuse and exploitation of children.” These findings are supported by substantial evidence in the record. Elvin’s relationship with the boy attracted substantial media attention, and school administrators testified that at least one parent reported having a child who knew about the incident. The school administrators also testified about the deleterious consequences of returning Elvin to the classroom. Upon these findings, the Board rationally concluded that Elvin’s continued employment would be unprofitable to the school system. . . . The entry is: Judgment affirmed. All concurring.
CASE NOTES 1. Immorality and Nexus. The Supreme Court of Delaware, 2008, held that the term “immorality” refers to such immorality as may reasonably be found to impair the teacher’s effectiveness to teach. In this decision the court expanded on the “nexus requirement,” saying that the nexus test strikes “a focus on how the conduct may affect the teacher’s ability to teach.” The court found both “immorality” and the requisite “nexus” in justifying the dismissal of a male elementary school teacher who had a sexual relationship with his 17-year-old former student who frequently came to the elementary school to pick up her younger sibling. The girl did not attend a high school within the elementary school district. Public controversy had followed when the teacher was arrested and the relationship was disclosed to the public. The affair became public when the 17-year-old girl told a friend
about the relationship and the friend told her parent, who informed the state police. The teacher was arrested and charged for fourthdegree rape based on the student’s age. The charge, however, was later dismissed. In spite of the dismissal of the criminal charge, however, the school board terminated the teacher for immorality. The teacher claimed that, (1) the student did not attend school in the district, (2) he had not engaged in criminal activity, and (3) the affair had no impact on his professional responsibilities. The Delaware court cited the “nexus” rationale of the New Hampshire court in In Re Appeal of Morrill, “the holy kisses” case cited above, and upheld the school board’s decision to dismiss the teacher. The court said that the school board’s decision could be sustained merely on its determination that the relationship itself negatively affected the teacher ’s “important function as serving as a role model to the students in his school.” Furthermore, the court observed that the teacher’s conduct undermined the confidence of all parents in the community regarding both the teacher and the school district. Lehto v. Board of Education of the Caesar Rodney School District, 962 A.2d 222, (2008). 2. Lying is considered to be immoral. Where a tenured teacher was denied permission to attend a conference and she went anyway, and then upon her return she submitted a request for excused absences because of illness, the board dismissed her based on immorality. The court upheld the board and said: “[Q]uestions of morality are not limited to sexual conduct, but may include lying.” Bethel Park School District v. Krall, 67 Pa. Commw. 143, 445 A.2d 1377 (1982). 3. Some school boards have overreached the intent and meaning of the term immorality in tenure laws in their zeal to find legal grounds for suspension or dismissal of teachers. Such was the case in a Pennsylvania school district where two teachers were suspended for engaging in a water fight with students in which one of the students suffered minor skin irritation when a cleaning fluid was sprayed on the students by the teachers. The court said that such “horseplay” may have been outrageous and uncalled for, but it did not rise to the level of immorality. Everett Area School
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Grounds for Termination of Tenured Teachers
District v. Ault, 120 Pa. Commw. 514, 548 A.2d 1341 (1988). 4. Being pregnant and unmarried does not constitute immorality. In a case where an unmarried pregnant teacher was dismissed for immorality, the school district argued that “unwed parenthood is per se proof of immorality and . . . a parent of an illegitimate child is unfit role model,” yet the school district could offer no support for such an assertion. The court said, “Therefore, we hold that [the teacher’s] discharge was in violation of her rights under the equal protection clause of the Fourteenth Amendment.” Avery v. Homewood City Board of Education, 674 F.2d 337 (5th Cir. 1982).
CAUSE OR GOOD CAUSE Both common law and statute usually provide for the dismissal of teachers for “cause” or “good cause.” Where tenure statutes specify the causes for dismissal, a teacher cannot be dismissed for causes beyond those specified.47 If, however, no causes are specified and the statute merely provides for dismissal for cause, then that which constitutes cause is subject to broader interpretation.48 The substance of “just cause” may be found in other aspects of inappropriate activity of a teacher. A Pennsylvania court has found that lying and/or making false statements is immorality constituting just cause for dismissal.49 A teacher’s misrepresentations regarding his or her unexcused absences may be within the context of persistent and willful misconduct and may, thereby, be the substantive grounds for dismissal for good or just cause.50 Cause may, at times, be rather nebulous, vesting the school board with substantial and broad authority. A Kansas court interpreted that state’s tenure law to permit termination or nonrenewal of a tenured teacher for good cause, including “any ground which is put forward by the school board in good faith and which is not arbitrary, irrational, unreasonable, or irrelevant to the school board’s task of building up and maintaining an efficient school system.”51 Just cause may emanate from factors other than those of the teacher’s making. For example, financial problems of a school district may constitute “just cause” for dismissal. In an Iowa case, just cause was given as the justification for
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release of a tenured teacher with 17 years of experience. The reasons given for just cause were budgetary considerations, declining enrollments, and the need to make more efficient use of staff. The district had 757 pupils in 1975, 506 in 1985, and 440 to 461 projected by 1989. The decline in enrollment had caused a loss of state revenues. Evidence was also submitted to the court showing that the district was overstaffed. The poor financial condition therefore led the court to uphold the dismissal based on just cause.52 “Good cause” must be determined based on the facts of each case.53 For example, “good cause” has been established to support dismissal where a tenured teacher: (1) cohabitated with a teacher of the opposite sex; (2) used a human fetus in the classroom when discussing abortion; (3) talked about abortion; and (4) spoke to classes about personal living arrangements.54 Violation of school policy may constitute cause. Dismissal of a tenured teacher was upheld for violating a school policy that stated that “the board of education does not encourage corporal punishment.” Over a four-year period, the teacher had kicked a student, struck another in the face, knocked a person to the floor, and committed other similar acts.55 Needless to say, the court upheld the dismissal for cause. Failure to abide by school rules may be either “good cause” or insubordination. In a case where a tenured teacher was warned numerous times to stop religious activities such as writing “God is truth and truth is God,” on the blackboard, the board dismissed him for cause. The teacher did not deny the allegations and said he would not stop because “he was a Christian and that part of his mission was a sense of evangelism.” His actions and refusal to abide by the board’s order constituted good cause grounds for dismissal.56 Cause for dismissal may also be supported for violation of a policy prohibiting corporal punishment. In a case where a teacher grabbed a child and kneed him in the back, causing him to cry, and shoved another child to the floor, the court found sufficient cause.57 Thus, cause, good cause, or just cause may encompass a host of teacher misbehaviors that could probably be otherwise justified as incompetency, insubordination, neglect of duty, or some other more specific charge. As noted earlier, however, such other specifications may not
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be necessary if the school board is vested by the tenure law with the more general catchall term of cause.58
Teacher’s Dismissal for Just Cause Is Appropriate Where Shoplifting Was Determined to Harm Her Effectiveness and Competence
Board of Directors of Lawton-Bronson v. Davies Supreme Court of Iowa, 1992. 489 N.W.2d 19.
SNELL, Justice. This is a school teacher termination case under section 279.27 of the Iowa Code (1989). The appellant, Lawton-Bronson Community School District, made findings of just cause to discharge appellee, Kathleen Davies, during the contract year. . . . Kathleen Davies was employed by the LawtonBronson Community School District as an elementary teacher. On November 17, 1989, Davies was arrested for shoplifting at a Younker’s Department Store in Sioux City, Iowa. A formal charge of third-degree theft was filed against her on December 20, 1989. On January 22, 1990, the district’s superintendent of schools issued to Davies a notice and recommendation to terminate her employment contract pursuant to Iowa Code section 279.27 (1989). . . . Davies claims that her compulsion to engage in shoplifting activity is the result of a mental illness/disability and, therefore, such conduct does not rise to the level of just cause for termination of her employment. The board of directors of the school district maintains that the acts of shoplifting and other incidents at the school are undisputed and have detrimentally affected her ability to be a role model to the students. . . . The school superintendent also provided testimony by several teachers and one parent as to other incidences of Davies’ behavior as a teacher. These incidences were: (a) statements to
her fifth grade class that she carries a handgun, (b) statements to a student that she understood his pain related to headaches and would like to fly out of a window, (c) students dictating the substance of classes, (d) laying her head on her desk due to headaches on several occasions, (e) taking several pills in front of students, and (f) making an improper reference to “Jesus Christ” during class. . . . Several parents expressed concern to the superintendent and other teachers about her ability to be an effective teacher. Five of Davies’ colleagues, two of her principals, and the superintendent all testified that the shoplifting incident adversely impacted upon her ability to be an effective role model for fourth and fifth graders and would prevent her from being an effective teacher in the future. On the issue of Davies being an appropriate role model, the board found that Davies was not a good role model prior to November 17 and, therefore, the knowledge by the district’s patrons and students that she was involved in several cases of theft caused an irreversible situation whereby Davies could no longer be an effective teacher or role model. The board further found that fifth grade students would be negatively impacted by the knowledge of the thefts regardless of Davies’ ability to be acquitted as a result of any diminished responsibility defense. . . . . . . In our review, we give weight to the findings of fact made by the board of directors of the school district but are not bound by them. Iowa Code § 279.18. We examine the evidence to determine if the decision of the board of directors of the school district has support in a preponderance of the evidence in the record as a whole. . . . The statute under which this case proceeded provides: “a teacher may be discharged at any time during the contract year for just cause.” Iowa Code § 279.27 (1991). The term “just cause” includes legitimate reasons relating to teacher fault. In Briggs v. Board of Directors, 282 N.W. 2d 740, 743 (Iowa 1979), we stated: Probably no inflexible “just cause” definition we could devise would be adequate to measure the myriad of situations which may surface in future litigation. It is sufficient here to hold that in the context of teacher fault a “just cause” is one which directly or indirectly significantly and adversely affects what must be the ultimate goal of
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every school system: high quality education for the district’s students. It relates to job performance including leadership and role model effectiveness.
441 U.S. 68, 78–79, 99 S. Ct. 1589, 1595, 60 L. Ed. 2d 49, 57–58 (1978), stated:
In applying the “just cause” criteria to this case, the adjudicator and the district court determined that our case of Smith, 293 N.W.2d at 221, required that the board be reversed. We thus have an issue both of interpretation and application of our case law, primarily as formulated by the Smith case. In Smith, we reviewed the termination of a teacher employed as a counselor who was having difficulties fulfilling his official duties due to a preoccupation with personal problems. Smith was given an extended leave of absence and sought professional psychiatric help. After diagnosis and treatment for a paranoid condition, Smith’s doctor testified he no longer suffered from the condition. The doctor further stated that he could not determine when Smith would be fully capable of returning to work but did say that he could try returning to his duties. We recognized in Smith that just cause for termination of a teaching contract may be found as a result of mental or physical disability. . . . Among the appropriate factors to be considered are “the nature and the extent of the duties required by the contract, the character and duration of the illness, the needs of the employer and the extent to which the duties can be performed by another.” . . . Davies argues, on the law, that Smith makes no distinction among a teacher’s effectiveness, competence, and role modeling and therefore applies to this case. Role modeling comprises a part of a teacher’s effectiveness and competence. . . . It is extremely difficult in this case to compartmentalize those characteristics of Davies that may properly be considered in judging her role as a teacher. To consider the shoplifting incident as the crux of the matter and look for an explanation to Davies’ adverse reaction to medication is an oversimplification of the problem facing the school board. Such an approach virtually ignores Davies’ prior history of inappropriate conduct in the classroom, which bears not on her teaching skills but on the perception of her by students as someone to emulate. There is much precedent for requiring a teacher to be a good role model. The United States Supreme Court in Ambach v. Norwick,
Within the public school system, teachers play a critical part in developing students’ attitude toward government and understanding of the role of citizens in our society. . . . Further, a teacher serves as a role model for his students exerting a subtle but important influence over their perception and values. . . .
. . . The particular issue of shoplifting has arisen in other jurisdictions. In Leslie v. Oxford Area School District, 54 Pa. Commw. 120, 420 A.2d 764 (1980), the teacher asserted that her act of shoplifting was a result of temporary mental instability brought on by physical and emotional stresses. The Pennsylvania court found that the act of shoplifting is immoral and affects the teacher’s ability to provide effective instruction. Regarding the teacher’s claim of temporary mental instability, the court said: “The circumstances described are mitigating but they cannot ‘eradicate the result or change the complexion of her acts.’ ” . . . In its review of Davies’ record as a teacher, the board specifically found that she was not a good role model for the students even prior to the shoplifting incident of November 17. It referred to her startling comments and bizarre conduct in the classroom, referenced in this opinion. This finding was followed by a finding that the knowledge by the district’s patrons and students of her several cases of theft caused an irreversible situation whereby she could no longer be an effective teacher or role model. . . . The need for a teacher to be a good example to the students is not denied by Davies in her argument. Rather, she views role modeling as part of a teacher’s effectiveness and competence. On this, the board agrees and so do we. As it is artificial to separate these components of a teacher’s abilities in making a factual determination of “just cause,” so it is strained to interpret the legal requirements in that manner. . . . . . . The findings by the board are extremely detailed. They lead to a conclusion that Davies’ status as a role model was permanently impaired in her employment at the school with no hope of reconstruction due to the small size of the school district and the widespread knowledge of her status. Although not specifically mentioned, we find that the matters required by Smith to be considered were substantially included by the board
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in its determination. Davies was given a fair hearing by the board that met the legal requirements for the protection of her rights. Our review convinces us that there is substantial evidence to support the board’s conclusion. The board has established “just cause” for termination of Davies’ employment under section 279.27 by a preponderance of the competent evidence. . . . REVERSED AND REMANDED.
CASE NOTES 1. Cause. Good and just cause includes “any cause bearing a reasonable relationship to a teacher’s fitness to discharge [his or her] duties” or “conduct which materially and substantially affects performance.” Fredrickson v. Denver Public School District No. 1, 819 P.2d 1068 (Colo. 1991). Statutory grounds of “just cause” for termination of employment of a tenured teacher may be interpreted by a school board as encompassing insubordination. Where a teacher routinely took a confrontational approach to her supervisors, responded negatively to performance evaluations, disagreed with various instructional decisions, and refused supervisory oversight of her curriculum and classroom methods, the South Dakota Supreme Court agreed with the school board determination that such constituted insubordination and was just cause for dismissal of the teacher. Barner v. Spearfish School District No. 40-2, 725 N.W.2d 226 (2006). In a rather bizarre case where a teacher shouldered his way into a fourth-grade child’s life and then pursued a battle against the child’s parent to wrest legal custody from her, the court upheld the teacher’s dismissal for good and just cause. Kerin v. Board of Education, Lamar School District, 860 P.2d 574 (Colo. Ct. App. 1993). In a case where a hearing was conducted after a parent complained about a female teacher sending “dirty e-mail jokes” to a former female student, the teacher was dismissed for “good and just cause.” The court upheld the dismissal finding the offense to be a “fairly serious matter” constituting unprofessional conduct that was disruptive of school decorum. Oleske v. Hilliard City School District Board of Education, 764 N.E.2d 1110 (Ohio Ct. App. 2001).
2. Unfitness. In Weissman v. Board of Education, 190 Colo. 414, 547 P.2d 1267 (1976), the court held that in determining whether a teacher’s conduct indicates unfitness to teach, certain matters may properly be considered, including the age and maturity of the teacher’s students, the likelihood that his or her conduct may have adversely affected students and other teachers, the degree of such adversity, the proximity or remoteness in time of the conduct, the extenuating or aggravating circumstances surrounding the conduct, the likelihood that the conduct may be repeated, the motives underlying it, and the extent to which discipline may have a chilling effect upon the rights of either the teacher involved or other teachers. 3. Unprofessional Conduct. Some tenure laws provide for the dismissal of teachers for unprofessional conduct. Black’s Law Dictionary contains the following definition: UNPROFESSIONAL CONDUCT. That which is by general opinion considered to be grossly unprofessional, immoral or dishonorable; State Board of Dental Examiners v. Savell, 90 Colo. 177, 8 P.2d 693, 697, that which violates ethical code of profession or such conduct which is unbecoming member of profession in good standing. People v. Gorman, 346 Ill. 432, 178 N.E. 880, 885. It involves breach of duty which professional ethics enjoin. People v. Johnson, 344 Ill. 132, 176 N.E. 278, 282.
See also the authorities annotated under the title “Unprofessional Conduct,” 43A Words and Phrases 83. In 68 Am.Jur.2d Schools § 161 is found the following: Unprofessional Conduct Definition: “Unprofessional Conduct” refers to conduct that violates the rules or the ethical code of a profession in good standing, or which indicates a teacher’s unfitness to teach. So construed, a statutory provision authorizing dismissal of a permanent employee for unprofessional conduct is not rendered void for vagueness.
The phrase “unprofessional conduct” is to be construed according to its common and approved usage, having regard to the context in which it is used. Board of Education of City of Los Angeles v. Swan, 41 Cal. 2d. 546, 261 (1953). Unprofessional conduct means conduct indicating an unfitness to teach. Morrison v. State Board of Education, 1 Cal. 3rd 214, 82 Cal. Rptr. 175, 461 P.2d 375 (1969).
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Grounds for Termination of Tenured Teachers
In a case where a male teacher admitted to homosexual intimacy with a student, the court upheld the teacher’s dismissal for unprofessional conduct. In what could be classified as an Olympian understatement, the court said: “A teacher who invites or permits a student or students to sleep with him and engage in intimate activity compromises his ability to teach.” Such activity by definition would, of course, have a detrimental effect on the school and classroom. Morris v. Clarksville-Montgomery County Consolidated Board of Education, 867 S.W.2d 324 (Tenn. Ct. App. 1993).
REDUCTION IN FORCE Some school districts have been faced with declining student enrollments, and as a result, there has been a necessary, corresponding reduction in the number of professional employees. Reductions in force may be brought about through enrollment declines, financial exigencies, reorganization, or the elimination of programs. Therefore, even a tenured teacher may be removed from the workforce if justification is substantiated. Local school boards may, within their discretion, establish a reduction-in-force policy, absent contractual obligations created by statutory or collective-bargaining agreements. Such a policy should consider: (1) the necessity of a reduction in force; (2) the positions eliminated; (3) the badfaith actions of school boards; and (4) seniority.59
Reduction in Force Must Be in Good Faith and for Constitutional Reason
Zoll v. Eastern Allamakee Community School District United States Court of Appeals, Eighth Circuit, 1978. 588 F.2d 246.
Action was brought by former school teacher for reinstatement and back pay following nonrenewal of her contract. The United States District Court for the Northern District of Iowa . . .
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entered judgment in favor of teacher against superintendent and elementary principal, and superintendent and principal appealed and teacher cross-appealed. The Court of Appeals . . . held that: (1) there was sufficient evidence of illicit motive for nonrenewal of teacher’s contract to support jury verdict of liability; (2) no reversible error was committed in charging jury on elements of teacher’s case, but (3) district court failed to comply with requisite guidelines for attorney fee awards and decided back pay claims against school district without benefit of the Supreme Court’s recent Monell decision, which foreclosed absolute immunity for local governing bodies. Mrs. Zoll holds a Master’s Degree in Elementary Administration and is certified by the State of Iowa as both a teacher and an administrator. Prior to the nonrenewal of her contract, she had been employed as a first-grade teacher in Allamakee County for twenty-nine years. The last fifteen years of her teaching career were with the Eastern Allamakee Community School District which was organized after she began teaching. She was promoted to elementary school principal in the Eastern Allamakee Community School District but resigned after two years to devote her full time to teaching. In September 1973, Mr. Harold Pronga succeeded Mrs. Zoll as the elementary school principal. In June and July 1974, Mrs. Zoll wrote two letters to the editor of a local newspaper sharply criticizing Mr. Pronga, School Superintendent Duane Fuhrman, and school board members Lawrence Protsman, Hugh Conway, James Mettille and Roy Renk for a decline in administrative concern with academic excellence. Mrs. Zoll complained that athletics were stressed over academics in the high school and that the quality of the elementary school was also in jeopardy. Her fears were based in part upon Mr. Pronga’s refusal to authorize her requisition for work books and his suggestion that Mrs. Zoll teach her students to play “Fish” and “Concentration.” In August, 1974, on her second day at school following the summer vacation, Mrs. Zoll was summoned to Mr. Pronga’s office to discuss the letters. Mr. Pronga had informed Superintendent Fuhrman of the planned meeting. At the outset of their discussion, Mr. Pronga read to Mrs. Zoll
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from his prepared notes: “I am very concerned and equally puzzled by your letters to the editor.” Mr. Pronga accused Mrs. Zoll of misrepresenting facts and chastised her for failing to express her feelings through proper channels. In December 1974, the school board followed the suggestion of the Iowa Department of Public Instruction in adopting a contingency plan for staff reduction in the event of a decline in enrollment. The plan included rules for determining the pool of teachers from which layoffs would be made. Selection from the pool would be by a 100-point system. A maximum of 40 points could be awarded for experience and training. The principal, superintendent and school board could award up to 20 points each, based on their subjective evaluations. At the February 1975 school board meeting, the board was informed of a projected enrollment decline of first-grade students for the 1975–76 school year which would warrant a staff reduction. The board treated as a pool from which a lay-off would be made the three firstgrade teachers: Mrs. Zoll, Mrs. Rebecca Okerlund and Mrs. Jane Meyer. The official decision of which teacher to terminate was postponed until the March board meeting. Mrs. Zoll was advised by a colleague of the school board president that the decision to terminate her was actually made at the closed executive session of the February board meeting. Out of the potential 100 points, Mrs. Zoll received 57, Mrs. Okerlund 62½, and Mrs. Meyer 72. Mrs. Zoll was erroneously awarded 17 points for experience, although she was entitled to 20 points under the objective scale. Thus, she was actually awarded 54 points, although entitled to 57 points. Mrs. Zoll received the highest point totals on the objective evaluation of experience and training. Out of a possible 40 points, Mrs. Zoll received 40, Mrs. Okerlund 4½, and Mrs. Meyer 16. Mrs. Zoll received the lowest point totals on the subjective evaluations by Mr. Pronga, Mr. Fuhrman and the school board. Out of a possible 60 points, Mrs. Zoll received 17, Mrs. Okerlund 58, and Mrs. Meyer 56. On April 8, 1975, the school board notified Mrs. Zoll that her contract would not be renewed for the 1975–76 school year. A public hearing was convened by the school board at Mrs. Zoll’s request on June 9, 1975, pursuant to Iowa Code
§ 279.13 (1975). At the conclusion of the hearing, the board voted four to one not to renew her contract. On December 15, 1975, Mrs. Zoll filed suit against Mr. Pronga, Mr. Fuhrman, and the four board members who voted not to renew her contract, alleging that they had refused to renew her teaching contract in retaliation for her exercise of First Amendment rights, in violation of 42 U.S.C. § 1983 (1970). . . . There is sufficient evidence of a retaliatory motive for the nonrenewal of Mrs. Zoll’s contract to support the jury verdict. Mrs. Zoll’s letters to the editor criticizing the school administration were published in the summer of 1974. On the second day of the 1974–75 school year, Mr. Pronga called Mrs. Zoll to his office to express his displeasure with the letters. Mr. Fuhrman had foreknowledge of the meeting. There was testimony that the decision to terminate Mrs. Zoll was made before the statistical evaluation. Mrs. Zoll’s expert witness testified to inconsistencies between the points assigned Mrs. Zoll and the notes and testimony of Mr. Pronga and Mr. Fuhrman. Under the staff reduction policy which the board had adopted in December 1974, teachers laid off pursuant to the policy were granted certain “recall rights” for a three-year period: “Any staff member laid off due to reduction of staff policy may be recalled if a vacancy exists within three years.” Three vacancies arose during the year following Mrs. Zoll’s termination. The vacancies were at the first grade, sixth grade and seventh-eighth grade levels. Mrs. Zoll applied for but was not offered any of these positions. Instead, two new teachers were hired and one teacher was transferred to fill the vacancies. The jury could reasonably have believed that the subjective rating of Mrs. Zoll by Mr. Pronga and Mr. Fuhrman was a pretext for discharging her for exercising her First Amendment rights. See Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 97 S. Ct. 568, 50 L. Ed. 2d 471 (1977). . . . Accordingly, we affirm the entry of judgment of liability on the jury verdict, vacate the attorney’s fee award and remand to the district court for reconsideration of the post-trial back pay issue and the attorney’s fee award and for further proceedings consistent with this opinion. Affirmed in part, vacated and remanded in part.
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Constitutional Protection of Contracts
needs against available resources and take appropriate action to curtain personnel. Although a school board may exercise wide latitude and autonomy in choosing a method for reducing the teaching force, its RIF policy must nonetheless conform to the commands of tenure law. Tenured faculty has a claim to preferential status over nontenured faculty in implementation of a reductionin-force plan. To hold otherwise would emasculate the statutory tenure policy and let school boards do indirectly what they cannot do directly. Tenure rights must be protected and school boards afforded the necessary discretion to so shape quality education programs as to make them meet the available financial resources. In sum, a school board is always free to adjust its teachers’ roll to meet economic necessity, but it cannot invoke unsanctioned grounds to subvert the statutorily mandated security-from-termination protection for tenured teachers.
CASE NOTES 1. Reduction-in-force litigation can reach indepth considerations of a teacher’s endorsement to teach a certain subject. Where wording of a collective bargaining agreement lacks precision regarding credentials, courts may step in to settle the matter regarding seniority in a particular teaching area. A good example is the South Dakota Supreme Court’s distinguishing a “computer science” endorsement from that of “educational technology.” The court disallowed “bumping” rights of a senior teacher who was certified in the former but not the latter because the “educational technology” endorsement required a math and science certification and the “computer science” endorsement did not. Hansen v. Vermillion School District No. 13-1, 727 N.W.2d 459 (2007). 2. A law that permits dismissal of a tenured teacher for “good cause” is sufficient to support a reduction-in-force (RIF), terminating employment of a tenured teacher. The Montana Supreme Court has ruled that a school district’s decrease in general fund revenue constituted good cause to justify a RIF. The court also determined that a school board policy that provided for bumping rights to be determined by four criteria: seniority, evaluations, multiple certifications to enhance teacher versatility, and the number of students taught to meet accreditation standards, was rational and objective, justifying the termination of a more senior teacher. Scobey School District v. Radaovich, 332 Mont. 9, 135 P.3d 778 (2006). 3. A tenured teacher may have “bumping” rights in time of fiscal stress. A Montana court has held that a high school principal with tenure had the right to bump an untenured teacher in a subject matter area in which he was certified to teach. Holmes v. Board of Trustees of School District Nos. 4, 47 and 2, 243 Mont. 263, 792 P.2d 10 (1990). 4. In abiding by the intent of tenure laws, school boards must follow a protocol that gives priority to tenured teachers in retaining employment. An Oklahoma court has explained: When declining enrollment requires a reductionin-force, a school board must balance a district’s
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Babb v. Independent School District No. I-5 of Rogers County, 829 P.2d 973 (Okla. 1992); see also Barton v. Independent School District No. I99, 914 P.2d 1041 (Okla. 1996). 5. The term just cause, justifying termination of the employment of a tenured teacher, may be defined as including not only incompetence, turpitude or performance of duties, but also encompasses exigent fiscal conditions that justify a reduction in force (RIF). Aguilera v. Board of Education of the Hatch Valley Schools, 139 N.M. 330, 132 P.3d 587 (2006).
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Constitutional Protection of Contracts
Both state60 and federal61 constitutions contain protections against the unilateral alteration of contracts by the state to disadvantage individuals in their relationships with the government. Basically, these provisions ensure the citizens that the state will not modify or abolish a contract to which it is a party. However, an inherent conflict exists between the guaranteed sanctity of contracts and the police power of the state in subsequent legislatures to make and change laws in the interest of the common good. A legislature cannot be completely bound and restricted by agreements made by earlier legislatures. Thus, the constraints placed on legislatures by the contract provisions of the state and federal constitutions
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must necessarily be hedged to allow the government to function freely. The U.S. Supreme Court has declared: it is settled that neither the “contract” clause nor the “due process” clause has the effect of overriding the power of the State to establish all regulations that are reasonably necessary to secure the health, safety, good order, comfort, or general welfare of the community; that this power can neither be abdicated nor bargained away, and is inalienable even by express grant; and all contract and property rights are held subject to its fair exercise.62
Whether the individual’s right to a contract prevails over the state’s interest in modifying the agreement is dependent on at least three conditions. First, an agreement between an individual and the state must clearly be a “contract” before it invokes the obligation of contract protection. It cannot be simply a privilege bestowed by the state, or some other relationship defined as something other than a contract. Second, the rights under a contract are determined by the laws existing at the time that the contract was made.63 Third, where, on balance, the interests of the state in modifying or abrogating the contract are sufficiently weighty and compelling, the interest of the individual must give way to the common and general interest of all the people. The burden of proof is on the individual to show that a particular relationship with the state is, in fact, a contract. The U.S. Supreme Court in Dodge v. Board of Education defined the conditions necessary for a statute to be regarded as a contract: In determining whether a law tenders a contract to a citizen it is of first importance to examine the language of the statute. If it provides for the execution of a written contract on behalf of the state the case for an obligation binding upon the state is clear. . . . On the other hand, an act merely fixing salaries of officers creates no contract in their favor and the compensation named may be altered at will by the legislature. This is true also of an act fixing the term or tenure of a public officer or an employee of a state agency. The presumption is that such a law is not intended to create private contractual or vested rights but merely declares a policy to be pursued until the legislature shall ordain otherwise. He who asserts the creation of a contract with the state in such a case has the burden of overcoming the presumption.64
The most important precedent rendered by the Supreme Court defining the extent of governmental prerogative with regard to contracts was the famous Dartmouth College case,65 which gave form and substance to Article I, § 10, the obligation of contracts provision of the U.S. Constitution. That article states: “No State Shall . . . pass any law . . . impairing the Obligation of Contracts. . . .” In Dartmouth College, the English crown had granted a charter to the college, which had been established in the colony of New Hampshire as a private institution.66 The college was governed by a self-perpetuating board of 12 members. A conflict that had political ramifications developed between the college president and the board members. Reacting to this controversy, the New Hampshire legislature enacted legislation in 1816 that materially altered the charter, making the college a state institution. The college trustees brought an action and claimed, in part, that the act of the legislature was unconstitutional and impaired the obligation of their contract, the original charter. The opinion of the Court, delivered by Justice Marshall, made two constitutionally important points: (1) a charter is a contract, and (2) a contract between an individual and the state is protected by the U.S. Constitution, Article I, § 10, “No State Shall Pass Any Law Impairing the ‘Obligation of Contracts’.” Later, in an Indiana case, Indiana ex rel. Anderson v. Brand,67 Article I, § 10, of the U.S. Constitution was directly applied as a limitation on state legislative actions pertaining to public education. The Indiana legislature passed an act that repealed a 1927 law granting tenure to teachers, and a teacher thereafter sought a writ of mandamus to compel her continued employment. She claimed the original act had granted her a continuing contract that could not be impaired nor breached by subsequent legislation. The original act provided, “It is further agreed by the contracting parties that all of the Teachers’ Tenure Law, approved March 8, 1927, shall be in full force and effect in this contract.”68 The Indiana Supreme Court ruled in favor of the defendant board of education, and the teacher appealed. The U.S. Supreme Court reversed the Indiana court.69 Both of these decisions illustrate the constitutional requirements within which a state
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Constitutional Protection of Contracts
legislature must operate when dealing with contracts. Particular application may be noted where legislation such as tenure and retirement statutes may create a contract between the state and an individual. There is a fine line between the constitutional rights of one individual and the rights of the people as exercised through the elected authority of the legislature to provide for the welfare of the state. This is demonstrated by the dissent of Justice Black in the Anderson v. Brand case, when he said that the Supreme Court should not interfere with the determination of educational policy by the Indiana legislature because the legislature of a state cannot make and be held to a contract “with a few citizens, that would take from all the citizens, the continuing power to alter the educational policy for the best interests of Indiana school children. . . .”70
Constitutional Prohibition Against Impairment of Contracts Is Not Violated by Additional Test Requirement for Retention of Teaching Certificate
State v. Project Principle, Inc. Supreme Court of Texas, 1987. 724 S.W.2d 387.
CAMPBELL, Justice. This is a direct appeal from a temporary injunction prohibiting enforcement of Tex. Educ. Code § 13.047 (Vernon Supp. 1987) on the ground that the statute is unconstitutional. Section 13.047 provides that public school educators, to retain their teaching certificates, must successfully complete an examination known as the Texas Examination for Current Administrators and Teachers, or TECAT. We hold the statute is constitutional and we reverse the judgment of the trial court and dissolve that court’s injunction. . . . On July 3, 1984, the state legislature passed into law House Bill 72. The bill contained numerous educational reforms, including additional school funding, school finance reform, teacher salary increases, and teacher competency testing. . . .
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Section 13.047 provides for a testing program by the State Board of Education for continued certification of all educators who have not taken the test required by section 13.032(e) of the Code. However, the section 13.032(e) test was first administered on May 24, 1986; thus, all previously certified teachers, including all members of Project Principle, were required to take the TECAT. . . . The state argues that the trial court’s injunction is in error because section 13.047 impairs no contract rights. Project Principle contends that teaching certificates are contracts with which the legislature may not interfere. We hold that a teaching certificate is not a contract within the meaning of article I, section 16. Rather, the certificate is a license, and like all licenses, is subject to such future restrictions as the state may reasonably impose. The United States Supreme Court spoke to the impairment of contracts argument more than forty years ago in Dodge v. Board of Education, 302 U.S. 74, 79, 58 S. Ct. 98, 100, 82 L. Ed. 57 (1937). In Dodge, retired teachers challenged an act of the Illinois legislature which decreased the amounts of annuity payments to retired teachers of Chicago public schools. The teachers claimed that the Act impaired the obligation of contracts in contravention of article I, § 10 of the United States Constitution. The Supreme Court of Illinois held that in passing the statute providing for the annuities the state legislature evinced no intent to create a binding contract with teachers. The United States Supreme Court affirmed, stating “the presumption is that [a tenure] law is not intended to create private contractual or vested rights but merely declares a policy to be pursued until the legislature shall ordain otherwise.” As early as 1925 it was recognized in Texas that a teaching certificate is a license. In Marrs v. Matthews, 270 S.W. 586 (Tex. Civ. App.—Texarkana 1925, writ ref’d), a teacher claimed that the state superintendent could not cancel his “permanent teacher’s certificate” because the language used in describing the offenses for which a certificate may be cancelled was void for vagueness. The teacher also claimed that the statute giving the superintendent the authority to cancel the certificate of any “unworthy” teacher was an attempt to confer judicial powers upon an executive department of the state government. In dissolving
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the trial court writ enjoining cancellation of the teaching certificate, the court stated that a teaching certificate “is merely a license granted by the state, and is revocable by the state.” The court noted that the teacher had “voluntarily sought and secured a statutory privilege to be enjoyed subject to statutory conditions.” Because we hold a teaching certificate is not a contract, the constitutional prohibition against impairment of contracts is not violated when the legislature imposes new conditions for the retention of the certificate. Further, because the certificate is a license and confers no vested rights, the constitutional prohibition against retroactive laws is not violated. It is only when vested rights are impaired that a retroactive law is invalid. . . . The state contends the trial court’s injunction is in error because section 13.047 does not violate due process guarantees. Project Principle contends the statute violates federal and state guarantees of due process. . . . Project Principle argues that after the enactment of section 13.047, educators’ certificates are subject to cancellation without a hearing or avenue for appeal upon failure to take the TECAT or to perform satisfactorily on the TECAT. First, it must be noted that decertification is not automatic upon failure of the examination. Section 13.047 provides that “each teacher must be given more than one opportunity to perform satisfactorily” on the TECAT. Second, provisions for appeal of “proceedings concerning the suspension, revocation, or cancellation of a [teaching] certificate” are contained in 19 Tex. Admin. Code § 157.1(b)(4) (1985). . . .This review provides procedural due process to any teacher who fails to perform satisfactorily on a competency examination. . . . . . . Project Principle argues that the classification of teachers into a class composed of those who pass the test and a class composed of those who fail the test is subject to strict scrutiny under equal protection analysis. Strict scrutiny is applicable, Project Principle argues, because the classification impinges upon a fundamental right, the right to practice a profession. . . . Likewise, we hold a person’s interest in teaching is not a fundamental right. The right to teach not being fundamental, a classification which impinges on that right is not subject to strict scrutiny. . . . Rather, the TECAT
must be judged by a rational basis standard. We hold that competency testing bears a rational relation to the legitimate state objective of maintaining competent teachers in the public schools. . . . We reverse the judgment of the trial court and dissolve that court’s injunction.
CASE NOTE The elimination of tenure for principals in Chicago did not violate the federal Constitution. Tenure was found not to be a contract; therefore, Article I, § 10, the Obligation of Contracts provision of the U.S. Constitution, was not violated. Pittman v. Chicago Board of Education, 860 F. Supp. 495 (E.D. Ill. 1994).
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Summation of Case Law
Certification 1. The distinction between citizens and aliens is fundamental to the definition and government of a state, and thus governmental entities, when exercising the functions of government, have wide latitude in limiting the participation of noncitizens. 2. Because public schoolteachers may be regarded as performing a task that goes to the heart of representative government, and since all public schoolteachers, regardless of courses taught, should help fulfill the broader function of the public school system, the Constitution requires only that a citizenship requirement applicable to teaching in the public schools bear a rational relationship to a legitimate state interest. 3. A school board’s residency requirement for teachers is not invalid on equal protection grounds because it required newly hired teachers to move into and remain in district and yet permitted those already hired to remain or move outside district. 4. A school board may terminate a teacher for conduct outside of school if there is sufficient nexus between the conduct and the board’s legitimate interest in protecting the school community from harm. Contracts 1. Nonrenewal of teacher ’s contract can be based on the teacher’s failure to obtain the required hours of summer school and extension courses required by contract of all teachers.
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Research Aids
2. A teaching certificate may be structured as a license rather than a contract and as such is subject to any future restrictions as the State may reasonably impose. Tenure 1. A probationary teacher does not become a “career teacher” with expectancy of tenure after signing a third consecutive one-year contract but before completing performance required under such contract. At all times prior to completion of third year, a teacher’s status is probationary. 2. A probationary teacher who had completed three years of service does not acquire tenure rights by working a fourth year under temporary contract. 3. A single incident may be of such magnitude or of such far-reaching consequences that a teacher’s ability to perform his or her duties will be permanently impaired, and a finding of “incompetence” would be proper. 4. For purposes of terminating a teacher, insubordination can be a single incident of willful or intentional disobedience which, when viewed in light of community standards and subject to judicial review, shows that the teacher’s conduct was sufficiently serious to warrant the sanction of dismissal. 5. A school board’s decision to terminate a teacher will not be set aside on appeal unless the decision is fraudulent, arbitrary, and unreasonable; not supported by substantial evidence on the record; not within school board’s jurisdiction; or is based on an erroneous theory of law. 6. A criminal conviction is not necessary to support a teacher’s dismissal on grounds of immorality. 7. Proof of immoral or unbecoming conduct sufficient to merit discharge of a tenured teacher must be supported by documentation from impartial sources, or substantial equivalent. 8. Immoral or unbecoming conduct sufficient to merit discharge of a tenured teacher, when it occurs in context other than professional competency in classroom, must have some nexus to the teacher ’s occupation. Mere private shortcomings which come to the attention of the school board but have no relation to the teacher’s involvement in or example to school community are not sufficient.
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9. Contracts of tenured teachers may be terminated for conduct unbecoming a teacher or immoral conduct in regard to off-campus activities involving students, notwithstanding written records indicating satisfactory teacher performance.
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Research Aids
Research citations below are abbreviated as: American Law Reports (A.L.R.), American Jurisprudence (Am.Jur.), Corpus Juris Secundum (C.J.S.), and McQuillen Municipal Corporations (McQuillen Mun.Corp.). Explanations for each of these sources of law are found in Chapter 1 of this text. Also, see Appendix B of this book. 75 A.L.R.4th 272, Validity, Construction, and Effect of Municipal Residency Requirements for Teachers, Principals, and Other School Employees. 16B Am.Jur.2d Constitutional Law § 655, Fundamental Rights and Privileges: Freedom to Travel. 67B Am.Jur.2d Schools § 154, Teachers and Other Employees: License or Certification. 97 A.L.R.2d 827, Revocation of Teacher’s Certificate for Moral Unfitness. 66 Am.Jur. Proof of Facts 3d, 541, Proof That a Teacher’s License Was Improperly Revoked: Teacher ’s Damages and Emotional Distress Award. 22 A.L.R.3d 1047, Elements and Measure of Damages in Action by Schoolteacher from Wrongful Discharge. 78 C.J.S. Schools and School Districts 434, Teachers, Principals, Superintendents, and Similar Personnel: Measure of Damages. 67B Am.Jur.2d Schools § 235, Teachers and Other Employees: Dismissal for Immoral Conduct. 17 Causes of Action 335, Cause of Action to Challenge Discharge of Public School Teacher on Grounds of Immoral or Criminal Conduct. 52 A.L.R.4th 301, Sufficiency of Notice of Intention to Discharge or Not to Rehire Teacher. 78 C.J.S. Schools and School Districts § 385, Retention, Change, Interruption of Employment Status, Reemployment or Renewal. 52 Am.Jur.2d Mandamus § 242, Schools and Colleges: Teachers, Employees, and Administrators; Reinstatement.
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Certification, Contracts, and Tenure
67B Am.Jur.2d Schools § 205, Teachers and Other Employees: Tenure Statutes. 127 A.L.R. 1298, Teacher Tenure Statutes. 67B Am.Jur.2d Schools § 225, Incompetence and Neglect of Duty. 4 A.L.R.3d 1090, what Constitutes “Incompetency” or “Inefficiency” as a Ground for Dismissal or Demotion of a Public School Teacher. 67B Am.Jur.2d Schools § 242, Grounds for Dismissal: Insubordination. 78 A.L.R.3d 83, What Constitutes “Insubordination” as Ground for Dismissal of a Public School Teacher. 67B Am.Jur.2d Schools § 235, Grounds for Dismissal: Immoral Conduct. 78 A.L.R.3d 19, Sexual Conduct as Grounds for Dismissal of Teacher or Denial or Revocation of Teaching Certificate. 96 A.L.R. 5th, 391, Federal and State Constitutional Provisions as Prohibiting Discrimination in Employment on Basis of Gay, Lesbian, or Bisexual Sexual Orientation or Conduct. 64 A.L.R.4th 1088, Validity, Construction, and Effect of Statutes Establishing Shoplifting or Its Equivalent as a Separate Criminal Offense. 78 C.J.S. Schools and School Districts § 448, Actions for Damages: Reinstatement. Law Reviews Frederick Schauer, “The Supreme Court, 2005 Term, Foreward: The Court’s Agenda—and the Nation’s,” 120 Harv. L. Rev. 4, 35. “Supreme Court, 2005 Term-Leading Cases,” 120 Harv. L. Rev. 273, 273–83 (2006). Erwin Chemerinsky, “The Kennedy Court: October Term,” 2005, 9 Green Bag 2d 335, 340 (2006). Marka B. Fleming, Amanda Harmon Cooley, and Gwendolyn McFadden-Wade, “Morals Clauses for Educators in Secondary and Postsecondary Schools: Legal Applications and Constitutional Concerns,” 2009 B.Y.U. Educ. & L.J. 67.
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Endnotes
1. 78 Corpus Juris Secundum § 154. 2. Ellwood P. Cubberley, Public Education in the United States (Boston: Houghton Mifflin, 1934), p. 371. 3. R. Freeman Butts and Lawrence A. Cremin, A History of Education in American Culture (New York: Henry Holt, 1953), p. 399. 4. Ibid.
5. Ibid. 6. John Swett, “The Examination of Teachers,” National Education Association Proceedings (1872), pp. 71–82, in Butts and Cremin, History of Education, p. 399. 7. Richard J. Coley and Margaret E. Goertz, Educational Standards in the 50 States: 1990 (Princeton, N.J.: Educational Testing Service, August 1990), pp. 10–15. 8. Harrah Independent School District v. Martin, 440 U.S. 194, 99 S. Ct. 1062 (1979). 9. Wardwell v. Board of Education, 529 F.2d 625 (6th Cir. 1976). See McCarthy v. Philadelphia Civil Service Commission, 424 U.S. 645, 96 S. Ct. 1154 (1976). 10. Black’s Law Dictionary, 7th ed. (St. Paul, Minn.: West, 1999). 11. Board of School Commissioners of the City of Indianapolis v. Walpole, 801 N.E.2d 622 (Ind. 2004). 12. School District No. 8, Pinal County v. Superior Court of Pinal County, 102 Ariz. 478, 433 P.2d 28 (1967). 13. Webster’s New International Dictionary, quoted in Beilan v. Board of Public Education, School District of Philadelphia, 357 U.S. 399, 78 S. Ct. 1317 (1958). 14. Board of Directors of Sioux City v. Mroz, 295 N.W.2d 447 (Iowa 1980). 15. Blunt v. Marion County School Board, 515 F.2d 951 (5th Cir. 1975). 16. Ibid. 17. Kinsella v. Board of Education, 64 A.D.2d 738, 407 N.Y.S.2d 78 (N.Y. App. Div. 1978). 18. Board of Education of the School District of Philadelphia v. Kushner, 109 Pa. Commw. 120, 530 A. 2d 541 (1987). 19. Blunt v. Marion County School Board, op cit. 20. Trustees, Missoula County School District No. 1 v. Anderson, 232 Mont. 501, 757 P.2d 1315 (1988). 21. Gilliland v. Board of Education of Pleasant View Consolidated School District No. 622, 67 Ill. 2d 143, 8 Ill. Dec. 84, 365 N.E.2d 322 (1977). 22. Webster’s Third New International Dictionary (Springfield, Mass.: 1961). 23. Black’s Law Dictionary, op. cit. 24. School District No. 8, Pinal County v. Superior Court, op. cit. 25. 78 A.L.R.3d 83, 87 (1977). 26. Sims v. Board of Trustees, Holly Springs, 414 So.2d 431 (Miss. 1982). 27. Stiver v. State, 221 Ind. 370, 7 N.E.2d 181 (1937); see also 78 A.L.R.3d 83 (1977). 28. Crump v. Board of Education, 79 N.C. App. 372, 339 S.E.2d 483 (1986), review denied, 317 N.C. 333, 346 S.E.2d 137 (1986). 29. Stephens v. Alabama State Tenure Commission, 634 So.2d 549 (Ala. Civ. App. 1993). 30. Thompson v. Wake County Board of Education, 31 N.C. App. 401, 230 S.E.2d 164 (1976); see Thompson v. Wake County Board of Education; 292 N.C. 406, 233 S.E.2d 538 (1977). 31. Harris v. Mechanicville Central School District, 45 N.Y.2d 279, 408 N.Y.S.2d 384, 380 N.E.2d 213 (1978). 32. Maxey v. McDowell County Board of Education, 212 W.Va. 668, 575 S.E.2d 278 (2002). 33. 78 A.L.R.3d 83 (1977). 34. Ibid. 35. Vogulkin v. State Board of Education, 194 Cal. App. 2d 424, 15 Cal. Rptr. 335 (1961).
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Quoted Box Citations 36. Horton v. Jefferson City–DuBois Area Vocational Technical School, 157 Pa. Commw. 424, 630 A. 2d 481 (1993); Dohanic v. Department of Education, 111 Pa. Commw. 192, 533 A.2d 812 (1987). 37. Kilpatrick v. Wright, 437 F. Supp. 397 (M.D. Ala. 1977). 38. Dupree v. School Committee of Boston, 15 Mass. App. Ct. 535, 446 N.E.2d 1099 (1983). 39. Black’s Law Dictionary (St. Paul, Minn.: West, 1968), p. 885. 40. Hanes v. Board of Education of City of Bridgeport, 783 A.2d 1 (Conn. App. Ct. 2001). 41. Weems v. North Franklin School District, 37 P.3d 354 (Wash. Ct. App. 2002). 42. Weissman v. Board of Education of Jefferson County School District No. R-1, 190 Colo. 414, 547 P.2d 1267 (1976). 43. Pettit v. State Board of Education, 10 Cal. 3d 29, 109 Cal. Rptr. 665, 513 P.2d 889 (1973). 44. Ibid. 45. Morrison v. State Board of Education, 1 Cal. 3d 214, 82 Cal. Rptr. 175, 461 P.2d 375 (1969). 46. Covert v. Bensalem Township School District, 104 Pa. Commw. 441, 522 A.2d 129 (1987). 47. People v. Maxwell, 177 N.Y. 494, 69 N.E. 1092 (1904); School City of Elwood v. State ex rel. Griffin, 203 Ind. 626, 180 N.E. 471 (1932). 48. See Newton Edwards, The Courts and the Public Schools (Chicago: University of Chicago Press, 1955), p. 481. 49. Board of Education of the School District of Philadelphia v. Philadelphia Federation of Teachers AFL-CIO, 464 Pa. 92, 346 A.2d 35 (1975); see Balog v. McKeesport Area School District, 86 Pa. Commw. 132, 484 A.2d 198 (1984). 50. Bethel Park School District v. Krall, 67 Pa. Commw. 143, 445 A.2d 1377 (1982), cert. denied, 464 U.S. 851, 104 S. Ct. 162 (1983). 51. Unified School District No. 434, Osage County v. Hubbard, 19 Kan. App. 2d 323, 868 P.2d 1240 (1994); see also Gillett v. Unified School District No. 276, 227 Kan. 71, 605 P.2d 105 (1980). 52. Pocahontas Community School District v. Levene, 409 N.W.2d 698 (Iowa Ct. App. 1987). 53. Stansberry v. Argenbright, 227 Mont. 123, 738 P.2d 478 (1987).
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54. Yanzick v. School District No. 23, Lake County, 196 Mont. 375, 641 P.2d 431 (1982). 55. Tomczik v. State Tenure Commission, 175 Mich. App. 495, 438 N.W.2d 642 (1989). 56. Rhodes v. Laurel Highlands School District, 118 Pa. Commw. 119, 544 A.2d 562 (1988). 57. Ortbals v. Special School District, 762 S.W.2d 437 (Mo. Ct. App. 1988). 58. Barcheski v. Board of Education of Grand Rapids Public Schools, 162 Mich. App. 388, 412 N.W.2d 296 (1987). 59. Robert Phay, Reduction in Force: Legal Issues and Recommended Policy (Topeka, Kan.: National Organization on Legal Problems of Education, 1980). 60. See Virginia Constitution, art. I, § 11. 61. U.S. Constitution, art. I, § 10. 62. Atlantic Coast Line Railroad Co. v. City of Goldsboro, 232 U.S. 548, 558, 34 S. Ct. 364, 368 (1914). See also Manigault v. Springs, 199 U.S. 473, 26 S. Ct. 127 (1905); Stone v. Mississippi, 101 U.S. 814 (1880). 63. Ogden v. Saunders, 25 U.S. (12 Wheat.) 213 (1827); Citizens Mutual Building Ass’n v. Edwards, 167 Va. 399, 189 S.E. 453 (1937). For a definitive explanation, see A. E. Dick Howard, Commentaries on the Constitution of Virginia, Vol. I (Charlottesville: University Press of Virginia, 1974), pp. 206–207. 64. Dodge v. Board of Education, 302 U.S. 74, 58 S. Ct. 98 (1936). 65. Trustees of the Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518 (1819). 66. Ibid. 67. Indiana ex rel. Anderson v. Brand, 303 U.S. 95, 58 S. Ct. 443 (1938). 68. Ibid. 69. Ibid. 70. Ibid.
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Quoted Box Citations
Nexus. Winters v. Arizona Board of Education, 207 Ariz. 173, 83 P.3d 1114 (2004). www.CartoonStock.com
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CHAPTER 16
Teacher Rights and Freedoms It is “not free thought for those who agree with us, but freedom for the thought that we hate.” —Justice Holmes The one certain and fixed point in the entire discussion is this: that freedom of expression is guaranteed to the citizens of a liberal democracy not for the pleasure of the citizens but for the health of the state. —Archibald MacLeish
CHAPTER OUTLINE ■
INTRODUCTION
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THE SOURCE OF RIGHTS
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TEACHER WORKPLACE SEARCHES
Academic Freedom
Mental and Physical Examinations of Teachers
First Amendment: Primary Repository
Drug Testing of Teachers ■
SPEECH RIGHTS OF PUBLIC EMPLOYEES
FREEDOM OF RELIGION
Pickering and the Balancing of Interests
Title VII
Speech and the Connick Rule
Promoting Religion
Garcetti and the Pursuant to Duty Test
Religious Garb
Mt. Healthy and Motivating Factors
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PRIVILEGE AGAINST SELF-INCRIMINATION
Givhan: Expressing Public Concerns in Private
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SUMMATION OF CASE LAW
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RESEARCH AIDS
PRIVACY
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The Source of Rights
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Introduction
The legal relationship between teacher and school board is dependent on essentially three sources of the law: (1) constitutional rights and freedoms of the teacher as a citizen, (2) statutory relationships that govern the conduct of the public schools, and (3) contractual conditions of employment that may be created and agreed to by both the teacher and the employer. These sources are not wholly independent of each other; in fact, they have substantial interdependence. As we have seen in earlier chapters, overlap may come from several perspectives. For example, the presence of a statutory tenure contract relationship creates a substantive due process interest as well as a constitutionally protected contract right on behalf of the teacher. Statutes, contracts, and agreements may generally create extenuating circumstances that vest the teacher with additional implicit rights beyond those emanating directly from the state or federal constitution. As we observed in other chapters, substantive due process interests evolve from the rights and expectations created by the state through statute, regulation, or implication; they do not emanate directly from the federal Constitution itself. The rights and freedoms referred to in the present chapter are different, in that they are explicitly and directly derived from the federal Constitution. These natural rights are of such importance to human existence that they are protected by explicit wording of the Constitution. These rights, according to Justice Black, are set out as a “remarkable collection of ‘thou shalt nots,’ ”1 or prohibitions against governmental intrusion. The essence of the constitutional preservation of these inviolate natural rights is found in the first five words of the First Amendment: “Congress shall make no law.”
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The Source of Rights
Under the U.S. Constitution, the source of individual rights and freedoms is found in the Bill of Rights, the first 10 amendments. (See Chapter 3.) These amendments prohibit government encroachment upon the fundamental and inalienable human rights that all persons retain in their relationship to government. The body of the Constitution itself delegated
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specified powers to the central government and did not state what rights and freedoms were left to the people. This omission greatly concerned Jefferson, who criticized the new Constitution as promulgated in Philadelphia in 1787 because it contained no specific provisions guaranteeing individual rights and freedoms. Jefferson wrote to Madison from Paris (where Jefferson was ambassador) praising the new Constitution, but he ended his letter with a denunciation of the Constitutional Convention for not including a bill of rights. He said: “Let me add that a bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse, or rest on inference.”2 Jefferson’s concern was reflected by others as well, and the ratification of the Constitution by the states was made contingent on the passage of an attendant bill of rights. Madison wrote the proposed bill of rights and presented it to Congress on September 25, 1789, in order to “kill the opposition” to the new Constitution.3 With the additional assurance protecting the individual from governmental overbearance, the requisite number of state legislatures ratified the Bill of Rights by December 15, 1791. Among the specifications of “thou shalt nots” contained in the Bill of Rights, the most basic are freedom of religion, speech, press, and assembly and a guarantee of due process as well as freedom from warrantless searches and forced self-incrimination. It was not until much later, after the Civil War, that the Fourteenth Amendment’s due process and equal protection provisions were added to form the formidable and complete array of specified individual rights that are enjoyed by Americans today. Yet, it was well into the twentieth century before the original 10 amendments were finally applied to prevent state governments from denying individual rights and freedoms.4 Until that time, the protections were read literally by the courts only to mean, “Congress shall make no law.” In addition to the Bill of Rights, state constitutions have provided additional protections against encroachments of state governments on rights of individuals. Most state constitutions have their own bill of rights or provisions that are tantamount to such. Unfortunately, in many instances state courts historically have not been as dedicated to enforcement of individual rights
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Teacher Rights and Freedoms
as have the federal courts. More recently though, state courts have shown new vigor and have greatly enhanced the importance of state constitutional provisions as restraints on unwarranted governmental action.
ACADEMIC FREEDOM The idea of academic freedom apparently traversed the Atlantic from German universities, where the terms lernfreheit, meaning freedom to learn, and lehrfreiheit, meaning freedom to teach, constituted the forerunners of the concept of academic freedom that is held so dear by the great American universities of today. In Germany, the university was viewed as a special place, separate and distinct from society at large, a place where professors could speak without “fear or favor” but in an “atmosphere of consent” that surrounded the whole learning environment of the institution.5 The idea of academic freedom in the United States is an important attribute to education regardless of the type of institution where learning takes place, but the necessity of academic freedom to stand against encroachments upon the freedom to learn and teach is of less importance in America than in Germany because of the more pervasive individual protections of our Bill of Rights in the U.S. Constitution. Under the Bill of Rights, all aspects of academic freedom are found in the speech, expression, privacy, and religion provisions of the First Amendment. The Supreme Court has observed both the essential nature and desirability of academic freedom and the fact that its essence is contained in the First Amendment. In Keyishian v. Board of Regents,6 the Supreme Court placed the imprimatur of the U.S. Constitution behind the concept when it said: Our nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to teachers concerned. That freedom is, therefore, a specific concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.7
In other cases, including Bakke8 and Sweezy,9 the Court has recognized a kind of institutional right encompassed in academic freedom,10 and at least one lower court has asserted an individual right to academic freedom under the limited circumstances of the university setting.11 Yet, in each of these cases, it is clear that protection to learn
and teach does not emanate directly from any abstract concept of academic freedom, but rather is founded in the substantive constitutional protections of free speech and expression embodied in the First Amendment. The student and the teacher are guaranteed lernfreheit and lehrfreiheit by virtue of the First Amendment’s direct proscription of the state or other entity casting a “pall of orthodoxy over the classroom.”12 Thus, academic freedom is not, in and of itself, a separate constitutional protection, but instead it is the desirable end to be achieved by the enforcement of the individual rights and freedoms in the classroom as guaranteed by the Bill of Rights.13 Therefore, although the issue is a bit clouded by several references to academic freedom in constitutional law involving universities, there is scarce case law to support the proposition that an elementary or secondary school teacher has a constitutional right to academic freedom per se beyond First Amendment protections. In the public schools, the teacher does not have “unlimited liberty” to determine the structure and content of the courses.14 A teacher cannot simply plead denial of academic freedom without buttressing the claim with the substantive grounds of the First Amendment or other provisions of the Bill of Rights. An allegation of denial of academic freedom alone will not prevail unless the teacher can show that as a result of school policy a “pall of orthodoxy” has been cast over the classroom and that the denial offends a specified right under the U.S. Constitution.
FIRST AMENDMENT: PRIMARY REPOSITORY The First Amendment is the basic repository of the primary and essential rights and freedoms. At an earlier point in our nation’s constitutional development, public employment was viewed as a privilege and not a right. 15 The basis for the logic that public employees could not fully retain their political freedoms and hold public employment concurrently was founded in Justice Holmes’s oft-quoted assertion in an 1892 case, “[t]he petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.”16 Some earlier cases involving public school teachers followed this philosophy, holding that the contract provisions between the board and the teacher could prohibit the exercise of various
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Speech Rights of Public Employees
rights and freedoms by teachers. If the teacher violated the provisions of the contract, even though they were repressive of the teacher’s rights, dismissal could be upheld.17 Under such rationale, some courts allowed the dismissal of teachers for marriage,18 absence from school for childbirth,19 and political discussion in the classroom.20 Thus, courts were generally split and clearly uncertain as to the political rights and personal freedoms of teachers as the privilege–right dichotomy continued to exist. Where teachers did prevail, the courts based their conclusions on common-law reasonableness and not on constitutional rights or freedoms. The common-law standard maintained simply that school boards held an implicit common-law power, even in the absence of a statute, to dismiss teachers for valid reasons.21 The validity of the reasons was many times spurious and bore little relationship to the ability to teach. Where statutes did govern dismissals, teachers’ rights could be no less in jeopardy. Some statutes simply invested boards with the power to dismiss teachers at the pleasure of the board.22 Thus, the teacher employment–school board relationship was defined by common-law reasonableness, contract law, and statutory and regulatory provisions of the state. It did not clearly reach to constitutional rights and freedoms until 1968 in Pickering v. Board of Education.
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Speech Rights of Public Employees
What a teacher may do or say is governed by the Supreme Court precedents covering the constitutional conditions of public employment. The Supreme Court has more narrowly circumscribed the freedom of speech of public employees than that of the public at large. In a series of cases, the Court attempted to establish a rationale that answers a basic question: What is it about the government’s role as employer that gives it a freer hand in regulating the speech of its employees than it has in regulating the speech of the public at large?23 In answer to this question, the Court has concluded that practical reality requires that government, at certain times and under certain conditions, be able to restrict employees’ speech in order to fulfill its responsibilities to operate effectively and efficiently.24 The fundamental maxim of free speech is that government must tolerate and cannot restrain
811
the exercise of free speech in open debate by the public regardless of whether it is offensive, tumultuous, or discordant.25 The First Amendment reflects the “profound material commitment of the principle that debate on public issues should be uninhibited, robust and wide-open.”26 Yet, the Court has never expressed doubt that the government, as an employer, may bar its employees from issuing forth with offensive utterances to either the public or other employees with whom they work.27 Even though a private person is completely free to uninhibitedly criticize a governor’s or a legislator’s position on a subject, the Court has never suggested that the governor or legislator (or school superintendent) could not fire a subordinate administrator or government official for similar criticism.28 Public officials are not constitutionally required to allow public dissent by their subordinates.29 Different principles of free speech apply to government as an employer as opposed to government as sovereign.30 If speech by employees interferes with governmental operation, it can be curtailed, but speech by nonemployees cannot be inhibited under the same standards. The Court has said that the extra power accruing to government to regulate the employees’ speech comes from the nature of the government’s mission as employer. Governmental agencies (or school districts) are charged by law with the responsibility for conducting governmental business. State agencies employ workers to perform assigned tasks as effectively and efficiently as possible. The precedent is well established that when an employee is paid a salary to work and contributes to an agency’s effective operation and thereafter begins to do or say things that detract from the agency’s effective operation, the government employer must have the power to prevent or restrain the employee from such acts or utterances. In a 1994 decision, Waters v. Churchill,31 the Supreme Court defined what it called the key decisions to constitutional analysis of government employment decisions. The Court said: The key to First Amendment analysis of government employment decisions, then, is this: The government’s interest in achieving its goals as effectively and efficiently as possible is elevated from a relatively subordinate interest when it acts as sovereign to a significant one when it acts as employer. The government cannot restrict the speech of the public at large just in the name of efficiency. But
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Teacher Rights and Freedoms
where the government is employing someone for the very purpose of effectively achieving its goals, such restrictions may well be appropriate.32
The public school teacher or other school employee employed by the school district therefore may be restrained in the exercise of speech to the extent described by the Supreme Court in Waters. Under this precedent, the ultimate constitutional analysis requires that the Court weigh the employee’s interest against the state’s in determining the validity of the restraint. In refining this task, the Court has separated employee speech into matters of “public concern” and “personal interest.” Key Cases and Concepts Governing School Employee Speech Pickering
Teacher’s Right of Speech Public Concern Balance of Interests
Connick
Public v. Private Concerns
Garcetti
Pursuant to Duty
Mt. Healthy
Motivating Factors
Givhan
Public Concern in Private
PICKERING AND THE BALANCING OF INTERESTS The watershed case in the application of constitutional standards to teacher employment was decided in 1968 in Pickering v. Board of Education.33 The U.S. Supreme Court held that freedom of speech, although not absolute in all circumstances, is nevertheless sufficiently strong to require that the state show a “compelling state interest” in order to overcome a teacher’s right to speak out on issues of public importance. In so doing, the Court equated teachers’ right of free speech with that of other members of the general public to criticize and comment on public policies and issues. Any lingering doubt about the legal dichotomy of privileges versus rights was extinguished by this case, and the dictum of Justice Holmes was repudiated. Before Pickering,34 1968, school teachers were hesitant to become too involved in politics for
fear that they would be penalized or even dismissed for such activities. In Pickering, a teacher was fired for sending a letter to a local newspaper that was critical of the school officials in the way they raised money for the schools. The Supreme Court held that the dismissal offended the First Amendment’s Free Speech Clause. Justice Marshall, writing for the Court, said that the task was to balance the free speech rights of government employees with the government’s need for efficient operation. He wrote: The State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with the regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the teacher, as a 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.35
The Court pointed out that Pickering’s statements in no way harmed the operation of the school district and did not affect the teacher’s performance. Even though there were factual inaccuracies in Pickering’s letter, the Court said that “absent proof of false statements knowingly or recklessly made by him, a teacher’s exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment.”36 This case is set forth more fully in the following pages. After Pickering, the courts implemented a flexible rule that provides for balancing the public’s interest against the private interest of the employee in each circumstance. This balancing, however, does not remove all state restraint on teacher activities; on the contrary, the courts have reflected a strong belief that because of their sensitive position in the classroom, teachers must be held accountable for certain activities both internal and external to the school.37 The interest of the public is to a great extent dependent on teachers’ status, appearance, and stature in the community. The school board must preserve the integrity of the learning processes of the school. Yet, because a teacher enters the school setting with constitutional freedoms of speech and association, the school must have a good and valid reason to overcome the teacher’s interest.
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Speech Rights of Public Employees
This means simply that teachers’ rights are not absolute and can be overcome if the public necessity is great enough. The valid rationales used by boards of education in dismissing teachers have ranged from in-school issues, such as insubordination and incompetency, to out-of-school activities that tend to reflect negatively on the welfare of the school. One of the issues that immediately comes to mind with the application of the Pickering rule is the latitude of subordinate school administrators who wish to exercise their right of free speech in criticizing administrative policies sent down from higher up the chain of command. For example, can an assistant school superintendent flout directives of a superintendent and claim that the right of free speech entitles him or her to do so? Or can a teacher disregard advice of the principal who has implemented a new instructional plan and defend her opposition on the grounds of free speech? The answer is basically “no.” In Pickering, the Supreme Court was careful to observe that a critical question regarding the exercise of free speech by a subordinate administrator or a teacher is whether the statement would create problems in maintaining rapport with supervisors or create discord among co-workers. One federal circuit court has observed: It would be a strange rule that gave more job protection to policy-making employees who vociferously attack their superiors than to employees who do their best to serve those superiors faithfully but have the misfortune to belong to the wrong party. It would give policy-making employees and other sensitive employees an incentive to attack their bosses in order to retain their jobs.38
In this regard, the courts balance the intent of employees’ free speech rights against school districts’ right to promote efficient public services. Thus, it has been held, in following Pickering, that the First Amendment does not prohibit the discharge of a policy-making employee when that individual has engaged in speech in a matter of public concern that is critical of superiors or their stated policies.39 As to the balance between government or school interests in providing a public service and employees’ right of free speech, the U.S. Court of Appeals, Seventh Circuit, has said that “the government
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employer ’s need for political allegiance from its policy-making employee outweighs the employee’s freedom of expression to such a degree that it obviates the Pickering balance.”40 Therefore, precedents that follow Pickering give great weight to the interests of the school district in its conduct of the public’s affairs relative to the right of employees when the issue involves policy or the efficient implementation of such policy. As we shall see later in this chapter, the all-important cases of Connick and Garcetti come into play, with Garcetti, in particular, establishing the “pursuant to official duty” test.
Teachers Have a Constitutional Right to Speak Out Freely on Matters of Public Concern
Pickering v. Board of Education Supreme Court of the United States, 1968. 391 U.S. 563, 88 S. Ct. 1731.
Mr. Justice MARSHALL delivered the opinion of the Court. Appellant Marvin L. Pickering, a teacher in Township High School District 205, Will County, Illinois, was dismissed from his position by the appellee Board of Education for sending a letter to a local newspaper in connection with a recently proposed tax increase that was critical of the way in which the Board and the district superintendent of schools had handled past proposals to raise new revenue for the schools. Appellant’s dismissal resulted from a determination by the Board, after a full hearing, that the publication of the letter was “detrimental to the efficient operation and administration of the schools of the district” and hence, under the relevant Illinois statute, Ill. Rev. Stat., c. 122, § 10-22.4 (1963), that “interests of the schools require[d] [his dismissal].” . . . The letter constituted, basically, an attack on the School Board’s handling of the 1961 bond issue proposals and its subsequent allocation of financial resources between the schools’ educational
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and athletic programs. It also charged the superintendent of schools with attempting to prevent teachers in the district from opposing or criticizing the proposed bond issue. The Board dismissed Pickering for writing and publishing the letter. Pursuant to Illinois law, the Board was then required to hold a hearing on the dismissal. At the hearing the Board charged that numerous statements in the letter were false and that the publication of the statements unjustifiably impugned the “motives, honesty, integrity, truthfulness, responsibility and competence” of both the Board and the school administration. The Board also charged that the false statements damaged the professional reputations of its members and of the school administrators, would be disruptive of faculty discipline, and would tend to foment “controversy, conflict and dissension” among teachers, administrators, the Board of Education, and the residents of the district. Testimony was introduced from a variety of witnesses on the truth or falsity of the particular statements in the letter with which the Board took issue. The Board found the statements to be false as charged. No evidence was introduced at any point in the proceedings as to the effect of the publication of the letter on the community as a whole or on the administration of the school system in particular, and no specific findings along these lines were made. . . . It is not altogether clear whether the Illinois Supreme Court held that the First Amendment had no applicability to appellant’s dismissal for writing the letter in question or whether it determined that the particular statements made in the letter were not entitled to First Amendment protection. In any event, it clearly rejected Pickering’s claim that, on the facts of this case, he could not constitutionally be dismissed from his teaching position. To the extent that the Illinois Supreme Court’s opinion may be read to suggest that teachers may constitutionally be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest in connection with the operation of the public schools in which they work, it proceeds on a premise that has been unequivocally rejected in numerous prior decisions of this Court. . . . “[T]he theory that public employment which may be denied altogether may be subjected to
any conditions, regardless of how unreasonable, has been uniformly rejected.” Keyishian v. Board of Regents, supra, 385 U.S. at 605–606, 87 S. Ct. at 685. At the same time it cannot be gainsaid that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the teacher, as a 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. The Board contends that “the teacher by virtue of his public employment has a duty of loyalty to support his superiors in attaining the generally accepted goals of education and that, if he must speak out publicly, he should do so factually and accurately, commensurate with his education and experience.” Appellant, on the other hand, argues that the test applicable to defamatory statements directed against public officials by persons having no occupational relationship with them, namely, that statements to be legally actionable must be made “with knowledge that [they were] . . . false or with reckless disregard of whether [they were] . . . false or not” . . . should also be applied to public statements made by teachers. . . . An examination of the statements in appellant’s letter objected to by the Board reveals that they, like the letter as a whole, consist essentially of criticism of the Board’s allocation of school funds between educational and athletic programs, and of both the Board’s and the superintendent’s methods of informing, or preventing the informing of, the district’s taxpayers of the real reasons why additional tax revenues were being sought for the schools. The statements are in no way directed towards any person with whom appellant would normally be in contact in the course of his daily work as a teacher. Thus no question of maintaining either discipline by immediate superiors or harmony among coworkers is presented here. Appellant’s employment relationships with the Board and, to a somewhat lesser extent, with the superintendent are not the kind of close working relationships for which it can persuasively be claimed that personal loyalty and confidence are necessary to their proper
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Speech Rights of Public Employees
functioning. Accordingly, to the extent that the Board’s position here can be taken to suggest that even comments on matters of public concern that are substantially correct . . . may furnish grounds for dismissal if they are sufficiently critical in tone, we unequivocally reject it. We next consider the statements in appellant’s letter which we agree to be false. The Board’s original charges included allegations that the publication of the letter damaged the professional reputations of the Board and the superintendent and would foment controversy and conflict among the Board, teachers, administrators, and the residents of the district. However, no evidence to support these allegations was introduced at the hearing. So far as the record reveals, Pickering’s letter was greeted by everyone but its main target, the Board, with massive apathy and total disbelief. . . . In addition, the fact that particular illustrations of the Board’s claimed undesirable emphasis on athletic programs are false would not normally have any necessary impact on the actual operation of the schools, beyond its tendency to anger the Board. For example, Pickering’s letter was written after the defeat at the polls of the second proposed tax increase. It could, therefore, have had no effect on the ability of the school district to raise necessary revenue, since there was no showing that there was any proposal to increase taxes pending when the letter was written. More importantly, the question whether a school system requires additional funds is a matter of legitimate public concern on which the judgment of the school administration, including the School Board, cannot, in a society that leaves such questions to popular vote, be taken as conclusive. On such a question free and open debate is vital to informed decision-making by the electorate. Teachers are, as a class, the members of a community most likely to have informed and definite opinions as to how funds allotted to the operation of the schools should be spent. Accordingly, it is essential that they be able to speak out freely on such questions without fear of retaliatory dismissal. . . . What we do have before us is a case in which a teacher has made erroneous public statements upon issues then currently the subject of public attention, which are critical of his ultimate employer but which are neither shown nor can be presumed
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to have in any way either impeded the teacher’s proper performance of his daily duties in the classroom or to have interfered with the regular operation of the schools generally. In these circumstances we conclude that the interest of the school administration in limiting teachers’ opportunities to contribute to public debate is not significantly greater than its interest in limiting a similar contribution by any member of the general public. The public interest in having free and unhindered debate on matters of public importance— the core value of the Free Speech Clause of the First Amendment—is so great that it has been held that a State cannot authorize the recovery of damages by a public official for defamatory statements directed at him except when such statements are shown to have been made either with knowledge of their falsity or with reckless disregard for their truth or falsity. . . . It is therefore perfectly clear that, were appellant a member of the general public, the State’s power to afford the appellee Board of Education or its members any legal right to sue him for writing the letter at issue here would be limited by the requirement that the letter be judged by the standard laid down in New York Times. . . . In sum, we hold that, in a case such as this, absent proof of false statements knowingly or recklessly made by him, a teacher’s exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment. Since no such showing has been made in this case regarding appellant’s letter, his dismissal for writing it cannot be upheld and the judgment of the Illinois Supreme Court must, accordingly, be reversed and the case remanded for further proceedings not inconsistent with this opinion. It is so ordered. Judgment reversed and case remanded with directions.
PICKERING’S TWO-PRONGS TEST 1. Whether the public employee spoke as a citizen on a “matter of public concern.” 2. If the answer to above is “yes,” then the question becomes whether the public employer had adequate justification for treating the employee differently from any other member of the general public.
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SPEECH AND THE CONNICK RULE Connick explains that First Amendment free speech is protected when an employee speaks out on “matters of public concern.” 41 These words, taken from Pickering, mean the Court must weigh the employee’s interest in speaking on matters of public concern against the state’s interest in providing efficient public services. Speech or expression exercised by a public employee, not as a citizen, concerning matters of private or personal interest upon matters of public concern is not protected by the First Amendment. Connick and Pickering combined to form a twostep free speech test. First, the initial inquiry is whether the speech is a matter of public concern; in this regard, Connick states: When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment.42
Second, if the speech is found to be a matter of public concern, the Court must then apply the Pickering balancing test. The interest of the public employee as a citizen in commenting on matters of public concern must be weighed against the interest of the state as an employer to promote effective and efficient public service.43 In Connick, a public employee (Assistant District Attorney Myers), when informed that she would be transferred to prosecute cases in a different area of criminal law, opposed her transfer. In response, Myers passed out a questionnaire to fellow assistant district attorneys, soliciting information about office morale and pressure to work in political campaigns. Myers was told the questionnaire constituted insubordination, and her employment was terminated. The Supreme Court upheld Myers’s dismissal, finding that the matter was basically of a personal nature and not a matter of public concern of any particular weight or magnitude. Though a question posed did fall under the rubric of “public concern,” Myers’s First Amendment interest was outweighed by the disruptive nature of the other questions. The state’s beliefs that Myers’s actions would disrupt the office, undermine authority, and destroy the close working
relationships within the office were reasonably taken in view of the evidence. The fact that Myers issued the questionnaire immediately after the transfer dispute and suggested conflict involving confidence in the conduct of the office lent additional weight in balancing the scales on behalf of the state. In so holding, the Court rejected Myers’s contention that the state must bear the burden of clearly demonstrating that the discharge was necessary because the speech “substantially interfered” with the operation of the office. The “substantial interference” standard originally placed on the state in Tinker, was not applicable here because the extent of a public employee’s interest in the exercise of speech was not of “public concern,” whereas in Tinker a protest of the Vietnam War was clearly a matter of great political significance. The speech test of the public employee, after Connick, can be summarized as follows: (1) Public speech is a fundamental constitutional right, and allegations regarding teacher dismissal for exercise of freedom of speech place the burden of proof on the state (or school board); (2) speech can be denied if the interests of the state outweigh the interests of the employee in the exercise of that right; (3) public speech involving matters of public concern imposes an extensive burden on the part of the state to justify denial, in which case the state must “clearly demonstrate” that denial was necessary in order to prevent “substantial interference”; and (4) public speech involving private concerns involves a relatively low standard of proof by the state to justify dismissal, one that a school board can easily sustain by showing minimally, as was shown in Connick and Garcetti, that the exercise of speech can be reasonably believed to undermine authority, disrupt decorum, or harm working relationships. Connick leaves it up to lower federal courts to draw the precise line between speech that is of public concern and speech that is of personal interest only. The U.S. Court of Appeals, Sixth Circuit, has indicated that it disagrees with the Fourth and Fifth Circuit’s understanding of Connick.44 The Fourth Circuit in Boring v. Buncombe County, 45 and the Fifth Circuit in Kirkland v. Northside Independent School District,46 concluded that in choosing what to teach, a teacher is not speaking about a matter of public concern and
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Speech Rights of Public Employees
not as a citizen, but rather as an employee in matters of private interest. On the contrary, in 2001, the Sixth Circuit in Cockrel v. Shelby County School District47 pointed out that Boring and Kirkland can only lead to the conclusion that a teacher, regardless of what he or she decides to include in the curriculum, is speaking as an employee on a private matter. This interpretation of Connick, the Sixth Circuit says: essentially gives a teacher no right to freedom of speech when teaching students in a classroom. . . . Thus when teaching, even about an upcoming presidential election or the importance of our Bill of Rights, the Fourth and Fifth Circuit’s reasoning would leave such speech without constitutional protection, for the teacher is speaking as an employee and not as a citizen.48
The reality is that a teacher speaking to a class may also be addressing a matter of public concern that is of political and social importance to the community. In taking this opposing position, the Sixth Circuit concluded in Cockrel that if such twin purposes are in play, the speech should be determined to be of public concern. The key is the topic of the speech, not the employment status of the individual. The Sixth Circuit therefore concluded that the proper reading of Connick is: even if a public employee were acting out of a private motive (and/or as an employee of a school district) so long as the speech relates to matters of “political, social or other concern to the community,” as opposed to matters “only of personal interest,” it shall be considered as touching upon matters of public concern.49
Based on this rationale, the Sixth Circuit concluded that a teacher who invited a prominent Hollywood actor to her class to speak about the industrial and economic benefits of growing hemp was, in fact, conveying a matter of public concern, and her speech interests were constitutionally protected.50 The weight of this public issue and the teacher’s right to address it outweighed the school district’s interests in an efficient operation of the school and the need for a harmonious workplace.51 Another scenario involving the rule is that of “mixed speech.” In the case of “mixed speech,” an employee speaks both as an employee and as a citizen on matters that involve both public
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and private concerns.52 In such cases, the Connick balancing test weighs both the nature of the employment as well as the content of the speech as to public or personal interests. Mixed speech, however, has not changed the basic Pickering and Connick considerations of the “balancing of the interests” test, weighing the free speech interests of the teacher against the interests of the school district.
Dismissal of Public Employee for Distribution of Questionnaire Concerning Matters Not of Public Concern to Other Office Staff Did Not Violate Constitutional Right of Free Speech
Connick v. Myers Supreme Court of the United States, 1983. 461 U.S. 138, 103 S. Ct. 1684
Justice WHITE delivered the opinion of the Court. In Pickering v. Board of Education we stated that a public employee does not relinquish First Amendment rights to comment on matters of public interest by virtue of government employment. We also recognized that the State’s interests as an employer in regulating the speech of its employees “differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.” The problem, we thought, was arriving “at a balance between the interests of the [employee], as a 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.” We return to this problem today and consider whether the First and Fourteenth Amendments prevent the discharge of a state employee for circulating a questionnaire concerning internal office affairs. The respondent, Sheila Myers, was employed as an Assistant District Attorney in New Orleans for five and a half years. She served at the pleasure of petitioner Harry Connick, the District
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Attorney for Orleans Parish. During this period Myers competently performed her responsibilities of trying criminal cases. In the early part of October, 1980, Myers was informed that she would be transferred to prosecute cases in a different section of the criminal court. Myers was strongly opposed to the proposed transfer and expressed her view to several of her supervisors, including Connick. Despite her objections, on October 6, Myers was notified that she was being transferred. Myers’ opposition was at least partially attributable to her concern that a conflict of interest would have been created by the transfer because of her participation in a counseling program for convicted defendants released on probation in the section of the criminal court to which she was to be assigned. Myers again spoke with Dennis Waldron, one of the first assistant district attorneys, expressing her reluctance to accept the transfer. A number of other office matters were discussed and Myers later testified that, in response to Waldron’s suggestion that her concerns were not shared by others in the office, she informed him that she would do some research on the matter. That night Myers prepared a questionnaire soliciting the views of her fellow staff members concerning office transfer policy, office morale, the need for a grievance committee, the level of confidence in supervisors, and whether employees felt pressured to work in political campaigns. Early the following morning, Myers typed and copied the questionnaire. She also met with Connick who urged her to accept the transfer. She said she would “consider” it. Connick then left the office. Myers then distributed the questionnaire to 15 assistant district attorneys. Shortly after noon, Dennis Waldron learned that Myers was distributing the survey. He immediately phoned Connick and informed him that Myers was creating a “mini-insurrection” within the office. Connick returned to the office and told Myers that she was being terminated because of her refusal to accept the transfer. She was also told that her distribution of the questionnaire was considered an act of insubordination. Connick particularly objected to the question which inquired whether employees “had confidence in and would rely on the word” of various superiors
in the office, and to a question concerning pressure to work in political campaigns which he felt would be damaging if discovered by the press. The questionnaire distributed by Myers was as follows: Please take the few minutes it will require to fill this out. You can freely express your opinion WITH ANONYMITH [sic] GUARANTEED. 1. How long have you been in the Office? 2. Were you moved as a result of the recent transfers? 3. Were the transfers as they effected [sic] you discussed with you by any superior prior to the notice of them being posted? 4. Do you think as a matter of policy, they should have been? 5. From your experience, do you feel office procedure regarding transfers has been fair? 6. Do you believe there is a rumor mill active in the office? 7. If so, how do you think it effects [sic] overall working performance of A.D.A. personnel? 8. If so, how do you think it effects [sic] office morale? 9. Do you generally first learn of office changes and developments through rumor? 10. Do you have confidence in and would you rely on the word of Bridget Bane? Fred Harper? Lindsay Larson? Joe Meyer? Dennis Waldron? 11. Do you ever feel pressured to work in political campaigns on behalf of office supported candidates? 12. Do you feel a grievance committee would be a worthwhile addition to the office structure? 13. How would you rate office morale? 14. Please feel free to express any comments or feelings you have. Thank you for your cooperation in this survey.
Myers filed suit under 42 U.S.C. § 1983, contending that her employment was wrongfully terminated because she had exercised her constitutionally protected right of free speech. The District Court agreed, ordered Myers reinstated, and awarded backpay, damages, and attorney’s fees. The District Court found that although Connick informed Myers that she was being fired because of her refusal to accept a transfer, the facts showed that the questionnaire was the real reason for her termination. The court then proceeded to hold that Myers’ questionnaire
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Speech Rights of Public Employees
involved matters of public concern and that the state had not “clearly demonstrated” that the survey “substantially interfered” with the operations of the District Attorney’s office. Connick appealed to the United States Court of Appeals for the Fifth Circuit, which affirmed on the basis of the District Court’s opinion. Connick then sought review in this [Supreme] Court by way of certiorari, which we granted. For at least 15 years, it has been settled that a state cannot condition public employment on a basis that infringes the employee’s constitutionally protected interest in freedom of expression. Keyishian v. Board of Regents; Pickering v. Board of Education; Perry v. Sindermann. Our task, as we defined it in Pickering, is to seek “a balance between the interests of the [employee], as a 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.” The District Court, and thus the Court of Appeals as well, misapplied our decision in Pickering and consequently, in our view, erred in striking the balance for respondent. The District Court got off on the wrong foot in this case by initially finding that, “[t]aken as a whole, the issues presented in the questionnaire relate to the effective functioning of the District Attorney’s Office and are matters of public importance and concern.” Connick contends at the outset that no balancing of interests is required in this case because Myers’ questionnaire concerned only internal office matters and that such speech is not upon a matter of “public concern,” as the term was used in Pickering. Although we do not agree that Myers’ communication in this case was wholly without First Amendment protection, there is much force to Connick’s submission. The repeated emphasis in Pickering on the right of a public employee “as a citizen, in commenting upon matters of public concern,” was not accidental. This language, reiterated in all of Pickering’s progeny, reflects both the historical evolvement of the rights of public employees, and the common sense realization that government offices could not function if every employment decision became a constitutional matter. For most of this century, the unchallenged dogma was that a public employee had no right
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to object to conditions placed upon the terms of employment—including those which restricted the exercise of constitutional rights. The classic formulation of this position was Justice Holmes’, who, when sitting on the Supreme Judicial Court of Massachusetts, observed: “A policeman may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.” McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220, 29 N.E. 517, 517 (1892). For many years, Holmes’ epigram expressed this Court’s law. . . . [T]he precedents in which Pickering is rooted, . . . invalidated statutes and actions sought to suppress the rights of public employees to participate in public affairs. The issue was whether government employees could be prevented or “chilled” by the fear of discharge from joining political parties and other associations that certain public officials might find “subversive.” The explanation for the Constitution’s special concern with threats to the right of citizens to participate in political affairs is no mystery. The First Amendment “was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.” “[S]peech concerning public affairs is more than self-expression; it is the essence of self-government.” Accordingly, the Court has frequently reaffirmed that speech on public issues occupies the “highest rung of the hierarchy of First Amendment values,” and is entitled to special protection. . . . Pickering, its antecedents and progeny, lead us to conclude that if Myers’ questionnaire cannot be fairly characterized as constituting speech on a matter of public concern, it is unnecessary for us to scrutinize the reasons for her discharge. When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment. Perhaps the government employer’s dismissal of the worker may not be fair, but ordinary dismissals from government service which violate no fixed tenure or applicable statute or regulation are not subject to judicial review even if the reasons for the dismissal are alleged to be mistaken or unreasonable.
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. . . Whether an employee’s speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record. In this case, with but one exception, the questions posed by Myers to her coworkers do not fall under the rubric of matters of “public concern.” We view the questions pertaining to the confidence and trust that Myers’ coworkers possess in various supervisors, the level of office morale, and the need for a grievance committee as mere extensions of Myers’ dispute over her transfer to another section of the criminal court. Unlike the dissent, we do not believe these questions are of public import in evaluating the performance of the District Attorney as an elected official. Myers did not seek to inform the public that the District Attorney’s office was not discharging its governmental responsibilities in the investigation and prosecution of criminal cases. Nor did Myers seek to bring to light actual or potential wrongdoing or breach of public trust on the part of Connick and others. Indeed, the questionnaire, if released to the public, would convey no information at all other than the fact that a single employee is upset with the status quo. While discipline and morale in the workplace are related to an agency’s efficient performance of its duties, the focus of Myers’ questions is not to evaluate the performance of the office but rather to gather ammunition for another round of controversy with her superiors. These questions reflect one employee’s dissatisfaction with a transfer and an attempt to turn that displeasure into a cause celèbre. To presume that all matters which transpire within a government office are of public concern would mean that virtually every remark— and certainly every criticism directed at a public official—would plant the seed of a constitutional case. While as a matter of good judgment, public officials should be receptive to constructive criticism offered by their employees, the First Amendment does not require a public office to be run as a roundtable for employee complaints over internal office affairs. One question in Myers’ questionnaire, however, does touch upon a matter of public concern. Question 11 inquires if assistant district attorneys “ever feel pressured to work in political campaigns on behalf of office supported
candidates.” We have recently noted that official pressure upon employees to work for political candidates not of the worker’s own choice constitutes a coercion of belief in violation of fundamental constitutional rights. In addition, there is a demonstrated interest in this country that government service should depend upon meritorious performance rather than political service. Given this history, we believe it apparent that the issue of whether assistant district attorneys are pressured to work in political campaigns is a matter of interest to the community upon which it is essential that public employees be able to speak out freely without fear of retaliatory dismissal. Because one of the questions in Myers’ survey touched upon a matter of public concern, and contributed to her discharge we must determine whether Connick was justified in discharging Myers. Here the District Court again erred in imposing an unduly onerous burden on the state to justify Myers’ discharge. The District Court viewed the issue of whether Myers’ speech was upon a matter of “public concern” as a threshold inquiry, after which it became the government’s burden to “clearly demonstrate” that the speech involved “substantially interfered” with official responsibilities. Yet Pickering unmistakably states, and respondent agrees, that the state’s burden in justifying a particular discharge varies depending upon the nature of the employee’s expression. Although such particularized balancing is difficult, the courts must reach the most appropriate possible balance of the competing interests. The Pickering balance requires full consideration of the government’s interest in the effective and efficient fulfillment of its responsibilities to the public. . . . We agree with the District Court that there is no demonstration here that the questionnaire impeded Myers’ ability to perform her responsibilities. The District Court was also correct to recognize that “it is important to the efficient and successful operation of the District Attorney’s office for Assistants to maintain close working relationships with their superiors.” Connick’s judgment, and apparently also that of his first assistant Dennis Waldron, who characterized Myers’ actions as causing a “mini-insurrection,” was that Myers’ questionnaire was an act of
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Speech Rights of Public Employees
insubordination which interfered with working relationships. Waldron testified that from what he had learned of the events on October 7, Myers “was trying to stir up other people not to accept the changes [transfers] that had been made on the memorandum and that were to be implemented.” In his view, the questionnaire was a “final act of defiance” and that, as a result of Myers’ action, “there were going to be some severe problems about the changes.” Connick testified that he reached a similar conclusion after conducting his own investigation. “After I satisfied myself that not only wasn’t she accepting the transfer but that she was affirmatively opposing it and disrupting the routine of the office by this questionnaire, I called her in . . . [and dismissed her].” When close working relationships are essential to fulfilling public responsibilities, a wide degree of deference to the employer ’s judgment is appropriate. Furthermore, we do not see the necessity for an employer to allow events to unfold to the extent that the disruption of the office and the destruction of working relationships is manifest before taking action. We caution that a stronger showing may be necessary if the employee’s speech more substantially involved matters of public concern. . . . Finally, the context in which the dispute arose is also significant. This is not a case where an employee, out of purely academic interest, circulated a questionnaire so as to obtain useful research. Myers acknowledges that it is no coincidence that the questionnaire followed upon the heels of the transfer notice. When employee speech concerning office policy arises from an employment dispute concerning the very application of that policy to the speaker, additional weight must be given to the supervisor’s view that the employee has threatened the authority of the employer to run the office. . . . Myers’ questionnaire touched upon matters of public concern in only a most limited sense; her survey, in our view, is most accurately characterized as an employee grievance concerning internal office policy. The limited First Amendment interest involved here does not require that Connick tolerate action which he reasonably believed would disrupt the office, undermine his authority, and destroy close working relationships. Myers’ discharge therefore did not offend the First Amendment. We reiterate, however, the
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caveat we expressed in Pickering: “Because of the enormous variety of fact situations in which critical statements by . . . public employees may be thought by their superiors . . . to furnish grounds for dismissal, we do not deem it either appropriate or feasible to lay down a general standard against which all such statements may be judged.” Our holding today is grounded in our longstanding recognition that the First Amendment’s primary aim is the full protection of speech upon issues of public concern, as well as the practical realities involved in the administration of a government office. Although today the balance is struck for the government, this is no defeat for the First Amendment. For it would indeed be a Pyrrhic victory for the great principles of free expression if the Amendment’s safeguarding of a public employee’s right, as a citizen, to participate in discussions concerning public affairs were confused with the attempt to constitutionalize the employee grievance that we see presented here. The judgment of the Court of Appeals is Reversed.
CASE NOTES 1. A gray area exists in most governmental organizations between employees whose comments may negatively affect operations and management and those expressions of speech that involve overriding matters of public concern. In public schools or universities, the academic freedom of a teacher to comment on public matters is more extensive than freedom of an administrator involved in operations and management. However, the free speech rights of a school nurse, for example, who is neither a teacher nor an administrator nor manager, may have considerable free speech latitude, as illustrated in a Pennsylvania case. In that case, a federal court ruled that a school nurse who was given an unsatisfactory employment rating for raising matters of public concern relating to her advocacy of two disabled students and her objecting to pesticide spraying at school by an unlicensed individual denied her right of free speech. Her exercise of free speech was in the nature of complaints to government agencies of health, civil rights, and child services. One result of her complaints was an inspection of
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the district by the State Auditor General. The court concluded that in contrast to Connick, the nurse’s advocacy for the two disabled students and her objections to pesticide spraying by an unlicensed individual were “matters of true public concern.” McGreevy v. Stroup, 413 F.3d 359 (3rd Cir. 2005). 2. A school superintendent who becomes actively involved in a school board election, supporting one candidate over another, and then loses, must suffer the consequences. The U.S. Court of Appeals, Fifth Circuit, has held that the nature of the working relationship between school board and superintendent is by necessity a close and essential one. The superintendent has the power to “make or break” board policies, and, thus, the efficiency of the governance of the school district is dependent on the effectiveness and accord between the superintendent and the board. When the superintendent publicly breaks this bond, he abandons “any shelter otherwise provided him by the First Amendment.” This conclusion was reached by relying on Pickering. Kinsey v. Salado Independent School District, 950 F.2d 988 (5th Cir. 1992). 3. Speech exercised by the secretary of a school district superintendent in opposing a bond issue was entitled to First Amendment protection absent a showing that the speech interfered with the efficient functioning of the office of the superintendent or impeded the secretary’s performance or the performance of those with whom she worked. The court found that there was no evidence that the secretary’s speech had either effect. The court in explaining its reasoning elaborated on Pickering and Connick, saying: Under the Pickering test, an employee’s First Amendment rights are protected “unless the employer shows that some restriction is necessary to prevent the disruption of official functions or to insure effective performance by the employee.” The employer’s burden to justify its restriction on speech increases in proportion to the value of that speech in the public debate. In focusing on the effective functioning of the employer’s enterprise, a court should consider “whether the statement impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty
and confidence are necessary, or impedes the performance of the speaker’s duties or interferes with the regular operation of the enterprise.”
4.
5.
6.
7.
8.
Ware v. Unified School District No. 492, Butler County, State of Kansas, 881 F.2d 906 (10th Cir. 1989); Rankin v. McPherson, 483 U.S. 378, 107 S. Ct. 2891, 2899 (1987). A school principal’s speech to the school board involving a proposed transfer of his wife, an English teacher, was a matter of “public concern.” Lewis v. Harrison School District No. 1, 805 F.2d 310 (8th Cir. 1986), cert. denied, 482 U.S. 905, 107 S. Ct. 2481 (1987). A letter of complaint written by teachers to the Arkansas Department of Education concerning the schools’ delay in implementing federally mandated programs for students with disabilities constituted a matter of “public concern.” Southside Public Schools v. Hill, 827 F.2d 270 (8th Cir. 1987). Matters involving a high school’s use of collegiate registration, a procedure in which students were permitted to choose their own subjects and teachers, were not of “public concern” and were therefore not protected by the First Amendment. Ferrara v. Mills, 781 F.2d 1508 (11th Cir. 1986). A ninth-grade government class is not a public forum, and a teacher could be disciplined for comments made during class regarding lack of discipline at the school. The court in a Colorado case concluded that the teacher could not logically maintain that a regular government class was a public forum that bestowed upon him expansive First Amendment speech protections. The court said, “If the creation and operation of a school newspaper as part of a journalism class can be devoid of an intent to open a classroom for public discourse (as in Hazelwood), then an ordinary classroom . . . is not a public forum.” Miles v. Denver Public Schools, 944 F. 2d 773 (10th Cir. 1991). Where a teacher’s record is replete with conflict with the school principal, the teacher’s resort to free speech protection is not likely to be successful. The U.S. Court of Appeals, Seventh Circuit, applied the Pickering–Connick balancing test in a case where a teacher’s employment was terminated for insubordination, negligence of duty, and failure to follow
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Speech Rights of Public Employees
directives of the school principal. The teacher had not responded to the principal’s requests to turn in several reports and had generally ignored other directives and requirements, in addition to writing a letter accusing the principal of “adultery,” “wrongdoing,” and “massage parlor visits.” The court held that the teacher could not succeed in challenging the dismissal on free speech grounds. In so holding, the court applied the Pickering–Connick three-step analysis: (1) Was the plaintiff’s speech constitutionally protected? (2) If so, were the defendant’s actions motivated by the plaintiff’s constitutionally protected speech? (3) Could the plaintiff show that his exercise of speech rights was the substantial and motivating factor in his termination? The court found that there was strong evidence of the plaintiff’s insubordination and therefore concluded that the school district had legitimate justification for the termination, which were not pretextual. Vukadinovich v. Board of School Trustees of North Newton School Corp., 278 F.3d 693 (7th Cir. 2002). 9. Retaliation against a teacher for exercise of a First Amendment right is prohibited by the courts. The reprimand and transfer of teachers as retaliation for their exercise of freedom of speech may subject a school district to Section 1983 liability. In order for a school district to be liable, however, the plaintiff must satisfy four elements in order to sustain a retaliation claim. First, the plaintiff must suffer an adverse employment decision. A valid claim by the plaintiff of an adverse employment decision cannot be based on trivial issues such as teaching assignments, room assignments, administrative duties, classroom equipment, teacher recognition, or a host of other relatively inconsequential matters. The courts may, however, hold that reprimands and demotions are of sufficient magnitude to constitute adverse employment decisions. Second, the plaintiff’s speech must be of public concern in the context of the U.S. Supreme Court’s rationale in Connick. To rise to a level of public concern, the plaintiff’s speech must be made in his or her role as citizen rather than merely that of an employee expressing matters of personal concern. Third, the plaintiff’s interest in commenting on matters of public
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concern must outweigh the defendant school district’s interest in promoting efficiency. Of concern to the courts is whether in striking the balance the speech was likely to generate controversy and disruption so as to impede the general performance, operation, and working relationships of the school. Fourth, in order for a complaint of retaliation to be successfully maintained, the plaintiff must show that the exercise of free speech was the motivating reason for the adverse employment decision by the school administration. The U.S. Court of Appeals, Fifth Circuit, held that all four elements were present where a school administration instituted an adverse employment decision moving teachers to different school campuses of the school district; the action according to the court was in retaliation for the teachers’ exercise of free speech. Harris v. Victoria Independent School District, 168 F.3d 216 (5th Cir. 1999).
GARCETTI AND THE PURSUANT TO DUTY TEST In 2006, the U.S. Supreme Court in Garcetti v. Ceballos tightened the reins on the free speech of public employees, adding to and further circumscribing the Pickering and Connick precedents.53 The decisive point that the Court added and emphasized was that when public employees make statements “pursuant to their official duties,” they are not speaking as citizens for First Amendment free speech purposes, and are not, therefore, insulated from discipline by their public employers.54 Effectively the rule enunciated by the Court said that public employees are not insulated by the First Amendment from disciplinary measures if they make statements pursuant to their official duties that are objectionable to their supervisors. Here in a nonschool case, but with significant public school implications similar to Connick, a conflict arose between supervisors and a deputy district attorney over inaccuracies in an affidavit used in a critical search warrant. Ceballos, the deputy and plaintiff, in examining the affidavit at the request of defense attorneys, found factual inconsistencies that would invalidate the warrant, whereupon he submitted a memo pertaining thereto to his supervisors and thereafter had heated oral discourse with his supervisors and
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members of the sheriff’s department. Ceballos claimed that subsequently he was subjected to a series of retaliatory employment actions. Ceballos argued that his memo and verbal exchanges were constitutionally protected free speech. His superiors countered that his memo and his objections to instructions of his superiors were not entitled to free speech protection, were employment related duties, and could, therefore, be the basis for the disciplining of Ceballos. The Supreme Court, in referring back to Pickering as relevant precedent, pointed out that there are two essential inquiries to resolving the issue: First, a court must determine whether the employee spoke as a citizen on a matter of public concern. If the answer is negative, the employee has no redress regarding the employer’s reaction. If the answer is “yes,” then the possibility of a free speech claim arises and then the issue becomes whether the public agency had adequate justification for treating the employee differently from other members of the general public.55 The government entity can, therefore, impose restrictions and penalties on the employee, but it must consider what potential effect the speech may have had on the operations and management of the entity.56 It is well established that when a citizen enters government employment the citizen must, as a necessity, accept certain limitations on his freedom of speech in matters pertaining to his duties.57 In holding against Ceballos, the Court observed that the “significant point” is that the memo was a part of Ceballos’ official duties, owing its existence to his public professional responsibilities, the restraint of which does not infringe on any liberty that he might otherwise enjoy as a private citizen. Pursuant to Duty. Thus, what exactly the Garcetti case added to the Pickering and Connick line of cases is the “pursuant to duty” test. This test makes it clear that when public employees make statements pursuant to their official duties, such statements are outside the protection of the First Amendment and are subject to employer control. In the words of the Court: “We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”58 The bottom line is that when a citizen becomes an employee of a public entity, the right
of free speech as a citizen still applies; however, that right is more restricted and limited. In this regard, the Supreme Court summed up its rationale: “Employers have heightened interests in controlling speech made by an employee in his or her professional capacity. Official communications have official consequences, creating a need for substantive consistency and clarity. Supervisors must ensure that their employees’ official communications are accurate, demonstrate sound judgment, and promote the employer’s mission. . . .”59 In explaining how Pickering, Connick, and Garcetti are complementary, Justice Kennedy writing for the majority in Garcetti stated: “So long as employees are speaking as citizens about matters of public concern (Pickering), they must face only those restrictions that are necessary for their employers to operate efficiently and effectively (Connick) . . . [However], [g]overnment employers, like private employers, need a significant degree of control over their employee’s words and actions [because] without it, there would be little chance for the efficient provision of public services” [Garcetti] (names of cases added). Thus, Garcetti follows Pickering and Connick, but tilts the balance more favorably toward the government employer and away from the employee. The potential effect of the precedent on public schools is to more clearly define the limits that can validly be placed on those persons operating as part of the management team supervising school operations. The Court does not, and cannot in view of the facts in Garcetti, cast any light as to how this precedent might affect “academic scholarship or classroom teaching,” but it does observe that academic freedom may “implicate additional constitutional interests that are not fully accounted for by the Court’s customary employeespeech jurisprudence.” 60 In this regard, it is worth emphasizing that Pickering involved the public speech of a classroom teacher and not a person in the chain of management of a school district. The Court in Connick and Garcetti is thus clearly prescribing constitutional standards for management and operations of public schools and neither case is directed to freedom of speech enjoyed by a teacher in the classroom. With an apparent concern that Garcetti would be read as vesting too extensive authority in the hands of the public employer, and adversely affecting the employee’s freedoms as explained by Pickering,
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Speech Rights of Public Employees
the Court said that the scope of Garcetti pertains only to duties of employment and not to the Pickering type of classroom situation. Finally, the three cases, Pickering, Connick, and Garcetti, provide rather indistinct guideposts for the school board or superintendent to follow. Mawdsley and Osborne provide some helpful counsel, in a West Education Law Reporter article,61 concerning questions that the school administration should ask in viewing employee free speech. Breaking them down into small bits, the questions are: “(a) Whether the employee is speaking as a private citizen? (b) Whether the subject is a matter of public concern? (c) To what extent is a public concern the essence of the speech? (d) Did the speech occur outside the school environment? (e) Did the speech occur in a public context? (f) Did the employee’s speech interfere with the employee’s duties and responsibilities? (g) Did the speech interfere with the efficient operation of the school? (h) Did the employee’s speech harm professional relationships within the school? (i) What other avenues were provided the employee to exercise his speech prerogative?” Most importantly, it should be noted that there are differences in the job duties of employees; some are administrators, supervisors, and managers, whereas others are professionally certified teachers. And still there are others who are nonprofessional staff, who have no supervisory nor teaching responsibilities. In short, Pickering, Connick, and Garcetti leave an abundance of unanswered questions for future litigation.
Statements Made by Public Employees, Pursuant to Their Official Duties, That Are Objectionable to Their Public Employer Are Not Insulated by the First Amendment and Against Discipline
Garcetti v. Ceballos Supreme Court of the United States, 2006. 547 U.S. 410, 126 S. Ct. 1951.
Justice KENNEDY delivered the opinion of the Court. It is well settled that “a State cannot condition public employment on a basis that infringes
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the employee’s constitutionally protected interest in freedom of expression.” Connick v. Myers. The question presented by the instant case is whether the First Amendment protects a government employee from discipline based on speech made pursuant to the employee’s official duties. Respondent Richard Ceballos has been employed since 1989 as a deputy district attorney for the Los Angeles County District Attorney’s Office. During the period relevant to this case, Ceballos was a calendar deputy in the office’s Pomona branch, and in this capacity he exercised certain supervisory responsibilities over other lawyers. In February 2000, a defense attorney contacted Ceballos about a pending criminal case. The defense attorney said there were inaccuracies in an affidavit used to obtain a critical search warrant. The attorney informed Ceballos that he had filed a motion to traverse, or challenge, the warrant, but he also wanted Ceballos to review the case. According to Ceballos, it was not unusual for defense attorneys to ask calendar deputies to investigate aspects of pending cases. After examining the affidavit and visiting the location it described, Ceballos determined the affidavit contained serious misrepresentations. The affidavit called a long driveway what Ceballos thought should have been referred to as a separate roadway. Ceballos also questioned the affidavit’s statement that tire tracks led from a stripped-down truck to the premises covered by the warrant. His doubts arose from his conclusion that the roadway’s composition in some places made it difficult or impossible to leave visible tire tracks. Ceballos spoke on the telephone to the warrant affiant, a deputy sheriff from the Los Angeles County Sheriff’s Department, but he did not receive a satisfactory explanation for the perceived inaccuracies. He relayed his findings to his supervisors, petitioners Carol Najera and Frank Sundstedt, and followed up by preparing a disposition memorandum. The memo explained Ceballos’ concerns and recommended dismissal of the case. On March 2, 2000, Ceballos submitted the memo to Sundstedt for his review. A few days later, Ceballos presented Sundstedt with another memo, this one describing a second telephone conversation between Ceballos and the warrant affiant.
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Based on Ceballos’ statements, a meeting was held to discuss the affidavit. Attendees included Ceballos, Sundstedt, and Najera, as well as the warrant affiant and other employees from the sheriff ’s department. The meeting allegedly became heated, with one lieutenant sharply criticizing Ceballos for his handling of the case. Despite Ceballos’ concerns, Sundstedt decided to proceed with the prosecution, pending disposition of the defense motion to traverse. The trial court held a hearing on the motion. Ceballos was called by the defense and recounted his observations about the affidavit, but the trial court rejected the challenge to the warrant. Ceballos claims that in the aftermath of these events he was subjected to a series of retaliatory employment actions. The actions included reassignment from his calendar deputy position to a trial deputy position, transfer to another courthouse, and denial of a promotion. Ceballos initiated an employment grievance, but the grievance was denied based on a finding that he had not suffered any retaliation. Unsatisfied, Ceballos sued in the United States District Court for the Central District of California, asserting, as relevant here, a claim under . . . 42 U.S.C. § 1983. He alleged petitioners violated the First and Fourteenth Amendments by retaliating against him based on his memo dated March 2. Petitioners responded that no retaliatory actions were taken against Ceballos and that all the actions of which he complained were explained by legitimate reasons such as staffing needs. They further contended that, in any event, Ceballos’ memo was not protected speech under the First Amendment. Petitioners moved for summary judgment, and the District Court granted their motion. Noting that Ceballos wrote his memo pursuant to his employment duties, the court concluded he was not entitled to First Amendment protection for the memo’s contents. It held in the alternative that even if Ceballos’ speech was constitutionally protected, petitioners had qualified immunity because the rights Ceballos asserted were not clearly established. The Court of Appeals for the Ninth Circuit reversed, holding that “Ceballos’s allegations of wrongdoing in the memorandum constitute protected speech under the First Amendment.” In reaching its conclusion the court looked to the First Amendment analysis set forth in Pickering
v. Board of Education and Connick. Connick instructs courts to begin by considering whether the expressions in question were made by the speaker “as a citizen upon matters of public concern.” The Court of Appeals determined that Ceballos’ memo, which recited what he thought to be governmental misconduct, was “inherently a matter of public concern.” The Court did not, however, consider whether the speech was made in Ceballos’ capacity as a citizen. . . . Having concluded that Ceballos’ memo satisfied the public-concern requirement, the Court of Appeals proceeded to balance Ceballos’ interest in his speech against his supervisors’ interest in responding to it. The court struck the balance in Ceballos’ favor, noting that petitioners “failed even to suggest disruption or inefficiency in the workings of the District Attorney’s Office” as a result of the memo. The Court further concluded that Ceballos’ First Amendment rights were clearly established and that petitioners’ actions were not objectively reasonable. . . . We granted certiorari, and we now reverse. As the Court’s decisions have noted, for many years “the unchallenged dogma was that a public employee had no right to object to conditions placed upon the terms of employment— including those which restricted the exercise of constitutional rights.” That dogma has been qualified in important respects. The Court has made clear that public employees do not surrender all their First Amendment rights by reason of their employment. Rather, the First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern. . . . Respondent Ceballos believed the affidavit used to obtain a search warrant contained serious misrepresentations. He conveyed his opinion and recommendation in a memo to his supervisor. That Ceballos expressed his views inside his office, rather than publicly, is not dispositive. Employees in some cases may receive First Amendment protection for expressions made at work. See Givhan v. Western Line Consol. School Dist. Many citizens do much of their talking inside their respective workplaces, and it would not serve the goal of treating public employees like “any member of the general public,” to hold that all speech within the office is automatically exposed to restriction.
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Speech Rights of Public Employees
The memo concerned the subject matter of Ceballos’ employment, but this, too, is nondispositive. The First Amendment protects some expressions related to the speaker ’s job. As the Court noted in Pickering: “Teachers are, as a class, the members of a community most likely to have informed and definite opinions as to how funds allotted to the operation of the schools should be spent. Accordingly, it is essential that they be able to speak out freely on such questions without fear of retaliatory dismissal.” The same is true of many other categories of public employees. The controlling factor in Ceballos’ case is that his expressions were made pursuant to his duties as a calendar deputy. . . . That consideration— the fact that Ceballos spoke as a prosecutor fulfilling a responsibility to advise his supervisor about how best to proceed with a pending case—distinguishes Ceballos’ case from those in which the First Amendment provides protection against discipline. We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline. Ceballos wrote his disposition memo because that is part of what he, as a calendar deputy, was employed to do. It is immaterial whether he experienced some personal gratification from writing the memo; his First Amendment rights do not depend on his job satisfaction. The significant point is that the memo was written pursuant to Ceballos’ official duties. Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created. . . . Contrast, for example, the expressions made by the speaker in Pickering, whose letter to the newspaper had no official significance and bore similarities to letters submitted by numerous citizens every day. Ceballos did not act as a citizen when he went about conducting his daily professional activities, such as supervising attorneys, investigating charges, and preparing filings. In the same way he did not speak as a citizen by writing a memo that addressed the proper disposition of a
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pending criminal case. When he went to work and performed the tasks he was paid to perform, Ceballos acted as a government employee. The fact that his duties sometimes required him to speak or write does not mean his supervisors were prohibited from evaluating his performance. . . . Proper application of our precedents thus leads to the conclusion that the First Amendment does not prohibit managerial discipline based on an employee’s expressions made pursuant to official responsibilities. Because Ceballos’ memo falls into this category, his allegation of unconstitutional retaliation must fail. Two final points warrant mentioning. First, as indicated above, the parties in this case do not dispute that Ceballos wrote his disposition memo pursuant to his employment duties. We thus have no occasion to articulate a comprehensive framework for defining the scope of an employee’s duties in cases where there is room for serious debate. We reject, however, the suggestion that employers can restrict employees’ rights by creating excessively broad job descriptions. (SOUTER, J., dissenting). The proper inquiry is a practical one. Formal job descriptions often bear little resemblance to the duties an employee actually is expected to perform, and the listing of a given task in an employee’s written job description is neither necessary nor sufficient to demonstrate that conducting the task is within the scope of the employee’s professional duties for First Amendment purposes. Second, Justice SOUTER suggests today’s decision may have important ramifications for academic freedom, at least as a constitutional value. There is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court’s customary employee-speech jurisprudence. We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching. . . . Our precedents do not support the existence of a constitutional cause of action behind every statement a public employee makes in the course of doing his or her job. The judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion. It is so ordered.
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Complaint to Supervisor by Teacher and Filing of a Union Grievance About the Complaint Is “Pursuant to Official Duties” and Is Unprotected Speech.
Weintraub v. Board of Education of the City District of the City of New York United States Court of Appeals, Second Circuit, 2010. 593 F.3d 196.
JOHN M. WALKER, JR., Circuit Judge: Petitioner-Appellant David H. Weintraub, a former New York City public school teacher, appeals from an order of the United States District Court for the Eastern District of New York. . . . Weintraub alleged that Defendants violated his First Amendment rights by retaliating against him for filing a formal grievance with his union that challenged the school assistant principal’s decision not to discipline a student who had thrown books at Weintraub during class. The district court dismissed Weintraub’s claim in light of Garcetti v. Ceballos, . . . which held that the First Amendment does not protect speech made pursuant to a public employee’s official duties. We find that Weintraub’s filing of the grievance was in furtherance of one of his core duties as a public school teacher, maintaining class discipline, and had no relevant analogue to citizen speech. Accordingly, we conclude that, under Garcetti, . . . Weintraub filed the grievance “pursuant to [his] official duties,” and thus, not as a citizen for purposes of the First Amendment. The grievance, therefore, is not protected speech, and we affirm the district court’s dismissal of Weintraub’s retaliation claim. . . . In September 1998, Weintraub began teaching fifth grade at P.S. 274, a public school in Brooklyn, New York. During his first two months, there were no apparent problems in his class, with his performance, or between Weintraub and school administrators. On Friday, November 6, 1998, after a student threw a book at him during class, Weintraub referred the student to his immediate supervisor,
Assistant Principal Douglas Goodman. Shortly thereafter, . . . Goodman returned the student to Weintraub’s classroom. The next school day, the same student threw additional books at Weintraub. Weintraub again referred the student to Goodman, who returned the student to Weintraub’s class. Weintraub was “upset” by Goodman’s decision not to discipline the student and concerned that “if this child could do this to [Weintraub], . . . it would put the . . . other students at risk.” . . . Weintraub subsequently learned that the same student “put a kid in the hospital later in the year.” . . . After the second book-throwing incident, Weintraub told Goodman, “If nothing is going to be done, I [will] have to file a grievance with the union to have something done about this because [the student] should be suspended for this,” . . . and “it is not an environment a teacher would want to go to where a child is allowed to throw a book at teachers,” . . . Weintraub also “underst[oo]d” that under “citywide Board of Education policy . . . a student assaulting the teacher in 5th grade . . . should have been suspended.” . . . Weintraub told other teachers at P.S. 274 about the incidents and his intention to file a grievance, and then filed the grievance with his union representative. Weintraub alleges that because of his complaints, including his grievance, Goodman and other school officials retaliated against him through “acts of intimidation, harassment, workplace abuse, and deliberate attempts to undermine [his] authority.” . . . Specifically, Weintraub avers that he received unfounded negative classroom evaluations, performance reviews, and disciplinary reports; was wrongfully accused of sexually abusing a student and abandoning his class; was arrested for misdemeanor attempted assault of another teacher at P.S. 274 on allegedly false grounds; and was ultimately terminated. After the criminal charges against him were dropped, Weintraub was denied reinstatement to teach and unsuccessfully sought review of his dismissal in state court. In July 2000, Weintraub commenced this action in the Eastern District of New York asserting several claims against Defendants, including adverse employment retaliation in violation of the First Amendment. Defendants moved for summary judgment on all of Weintraub’s claims.
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Speech Rights of Public Employees
. . . Pursuant to 28 U.S.C. § 1292(b), we accepted Weintraub’s interlocutory appeal, which is limited to the question of whether the First Amendment protects his filing of a grievance. We now examine his claim. . . . “If [we] determine[ ] that [Weintraub] either did not speak as a citizen or did not speak on a matter of public concern, ‘[he] has no First Amendment cause of action based on his . . . employer’s reaction to the speech.’ ” . . . We hold that Weintraub, by filing a grievance with his union to complain about his supervisor’s failure to discipline a child in his classroom, was speaking pursuant to his official duties and thus not as a citizen. Accordingly, Weintraub’s speech was not protected by the First Amendment, and there is no cause for us to address whether it related to a “matter of public concern.” . . . see Garcetti. . . . . . . The objective inquiry into whether a public employee spoke “pursuant to” his or her official duties is “a practical one.” . . . The Garcetti Court cautioned courts against construing a government employee’s official duties too narrowly. . . . . . . We join [other] circuits and conclude that, under the First Amendment, speech can be “pursuant to” a public employee’s official job duties even though it is not required by, or included in, the employee’s job description, or in response to a request by the employer. In particular, we conclude that Weintraub’s grievance was “pursuant to” his official duties because it was “partand-parcel of his concerns” about his ability to “properly execute his duties,” . . . as a public school teacher—namely, to maintain classroom discipline, which is an indispensable prerequisite to effective teaching and classroom learning. . . . Weintraub’s speech challenging the school administration’s decision to not discipline a student in his class was a “means to fulfill,” . . . and “undertaken in the course of performing,” . . . his primary employment responsibility of teaching. . . . The lodging of a union grievance is not a form or channel of discourse available to nonemployee citizens, as would be a letter to the editor or a complaint to an elected representative or inspector general. Rather than voicing his grievance through channels available to citizens generally, Weintraub made an internal communication pursuant to an existing disputeresolution policy established by his employer,
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the Board of Education. . . . As with the speech at issue in Garcetti, Weintraub could only speak in the manner that he did by filing a grievance with his teacher’s union as a public employee. . . . His grievance filing, therefore, lacked a relevant analogue to citizen speech and “retain[ed no] possibility” of constitutional protection. . . . For the reasons stated above, the order of the district court is Affirmed.
Coach’s Speech Was Made While Performing His Employment Duties and Was Not Protected by the First Amendment
Williams v. Dallas Independent School District United States Court of Appeals, Fifth Circuit, 2007. 480 F.3d 689.
PER CURIAM: Gregory Williams appeals the district court’s grant of summary judgment in favor of his former employer, Dallas Independent School District (“DISD”), on his claim that DISD retaliated against him for engaging in speech protected by the First and Fourteenth Amendments. We affirm. Gregory Williams was previously employed as Athletic Director and Head Football Coach at Pinkston High School in the DISD. During the months leading up to the 2003 school year, Williams repeatedly asked the school’s office manager for information concerning the funds appropriated for athletic activities. Despite numerous requests, the office manager did not give Williams specific information on the athletic account. In late September of that year, Williams wrote a memorandum to the office manager (copied to the school principal, J.L. Wright) in which he protested the manager’s “fail[ure] to provide [him] with any information and/or balance pertaining to th[e athletic] account.” Also in this letter, he questioned as “extremely unusual” a previous incident when the office manager casually informed him that the athletic account had a negative balance even though it had been
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credited with $1,000 for football season, and he had charged only one $165 purchase against that account. Williams concluded his letter to the office manager with, “Your failure to provide me with and [sic] account balance, despite numerous requests, has hurt my ability to provide our student/athletes with critical items and/or materials necessary for competition.” Almost two months later, Williams wrote a memorandum to principal Wright, expressing further concern regarding the handling of school athletic funds. Williams wrote: This memorandum is with reference to gate receipts generated through athletic events held here at L.G. Pinkston High School. As an experienced coach with Dallas Independent School District, I am very familiar with the standard operating procedures utilized at the majority of the high school campuses in this district. I have also gone a step further by communicating with Coach Goree Johnson, Assistant AD DISD, Coach Elsie Moreno, Assistant AD DISD and Coach Calvin Portly, Assistant AD DISD on yesterday, November 19, 2003. These individuals confirmed my original understanding of what standard operating procedure is at the majority of the high school campuses. Typically, all gate receipts generated for nondistrict events held on campus or at one of the field houses are deposited into the “General Athletic Account.” In this instance that would be Account # 101. This general athletic account is then utilized to provide supplemental funding for all sports. Which means these gate revenues should be used to help fund all of our basketball teams, girls and boys. At the present time, our varsity boys have 2 (two) upcoming tournaments, which require entry fees. Our freshmen boys’ basketball team is scheduled to participate in a tournament this weekend, which requires an entry fee be paid immediately. The varsity girls basketball team receives the total gate revenues from their scrimmage game held here last week. This was considered a “fund raiser” for the basketball program. The scrimmage game generated over $200.00. The gate revenues from this weeks [sic] games were earmarked for tournament entry fees for our boys’ teams. I am attempting to operate the athletic department based on standard operating procedures and norms throughout the State of Texas. However, I have found that there is a network of friends and house rules, which govern practices here at L.G. Pinkston High School. As a result, Coach Calahan was permitted to deposit an additional $200.00 into
the girls [sic] account. Therefore, I will advise the other basketball coaches that the athletic account # 101 will not be able to support their entry fees as originally planned.
Four days after receiving the memorandum, principal Wright removed Williams as Athletic Director. Removal as Athletic Director was elevated to emergency removal and administrative leave. In early March, DISD decided not to renew Williams’s contract. Later that month, DISD placed principal Wright and the office manager on administrative leave pending an investigation of matters including “financial accountability.” Williams sued in the district court under 42 U.S.C. § 1983, alleging that DISD removed him as Athletic Director in retaliation for engaging in speech protected by the First and Fourteenth Amendments. The district court granted summary judgment in favor of DISD, holding that Williams’s memorandum to principal Wright did not “address a matter of public concern” and therefore did not receive First Amendment protection. Williams appeals. . . . William claims that the memoranda he submitted to the office manager and principal are speech protected by the First Amendment. He argues that his memoranda are identical to that in Pickering v. Board of Education, where a teacher’s letter to the local newspaper protesting the manner in which his school distributed funds between athletic and academic programs was held to be protected speech. Williams views himself as engaging in a similar crusade against misappropriated and discriminatory funding, specifically pointing out that the girls’ basketball team received $200 in special proceeds that should have gone to the general fund and that money was mysteriously missing from the athletic account. Claiming to have written the memoranda as a “taxpayer” and a “father,” Williams notes that his efforts were later vindicated when principal Wright and the office manager were removed from their positions. . . . In the instant case, DISD concedes that an Athletic Director is not required to write memoranda to his principal regarding athletic accounts. Thus, we must determine the extent to which, under Garcetti, a public employee is protected by the First Amendment if his speech is not necessarily required by his job duties but nevertheless is related to his job duties. . . .
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Speech Rights of Public Employees
We must therefore decide whether Williams wrote his memoranda in the course of performing his job as Athletic Director. Williams’ statements in his memoranda focus on his daily operations. He needed information regarding the athletic account so that he could “operate the athletic department based on standard operating procedures and norms throughout the State of Texas.” He accused the office manager of “hurt[ing his] ability to provide . . . student/ athletes with critical items and/or materials necessary for competition.” Moreover, Williams was responsible for buying sports equipment and for arranging and paying tournament fees. Because the office manager and principal were in charge of allocating and monitoring the athletic accounts (Williams obviously did not have exclusive control of the accounts), in order for Williams to purchase equipment and enter competitions, he needed to consult with his superior about his budget. . . . We thus find that Williams’ speech was made in the course of performing his employment. This is not a case where Williams wrote to the local newspaper or school board with his athletic funding concerns. (“Contrast, for example, the expressions made by the speaker in Pickering, whose letter to the newspaper had no official significance and bore similarities to letters submitted by numerous citizens every day.”). Simply because Williams wrote memoranda, which were not demanded of him, does not mean he was not acting within the course of performing his job. He needed account information so that he could properly execute his duties as Athletic Director, namely, taking the students to tournaments and paying their entry fees. The memoranda were not written from Williams’ perspective as a “father” and “taxpayer.” Unlike Pickering, whose “position as a teacher in the district did not qualify him to speak with any greater authority than any other taxpayer,” . . . , Williams had special knowledge that $200 was raised at a basketball tournament. He was also experienced with standard operating procedures for athletic departments. Even his language accusing the principal of engaging in a “network of friends and house rules” was part-and-parcel of his concerns about the program he ran. We thus hold that Williams’ memoranda to the office manager and principal Wright were
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written in the course of performing his job as Athletic Director; thus, the speech contained therein is not protected by the First Amendment. Accordingly, we AFFIRM the district court’s grant of summary judgment.
Materials Posted on a Classroom Bulletin Board by Teacher Were Curricular in Nature and, Thus, Were Not Protected Speech on a Matter of Public Concern
Lee v. York County School Division United States Court of Appeals, Fourth Circuit, 2007. 484 F.3d 687.
KING, Circuit Judge. Plaintiff William Lee appeals from the district court’s award of summary judgment to the York County, Virginia, School Board, five members of the County’s Board of Education, and the County’s School Superintendent (collectively, the “School Board” or the “Board”) on his § 1983 free speech claim. . . . Lee, who teaches high school in York County, initiated this suit in the Eastern District of Virginia in August 2005, maintaining that the School Board had violated his rights under the First Amendment’s Free Speech Clause by removing materials he had posted on the bulletin boards in his classroom. In its February 23, 2006 Opinion, the district court rejected Lee’s claim, concluding that his postings were curricular in nature and thus did not constitute speech on a matter of public concern. In substance, Lee maintains on appeal that he possesses a First Amendment right to post his materials on the classroom bulletin boards. This contention is contrary to the relevant precedent and, as explained below, we affirm. In 2001, Lee began teaching Spanish at Tabb High School, a public high school operated by the School Board in Yorktown, Virginia. Prior to his assignment at Tabb High, Lee had been employed by the School Board for about a year, as a teacher at a York County middle school.
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Sometime in October 2004, an employee of the School Board received a complaint from a private citizen who expressed concern over certain materials posted on the bulletin boards within Lee’s classroom. The crux of the citizen’s complaint was that some of Lee’s postings were overly religious in nature. After receiving the complaint, the School Board asked Crispin Zanca, the Principal of Tabb High, to investigate the matter. As Principal, it is Zanca’s obligation to ensure that teachers adhere to the Board’s curriculum guidelines and policies. On October 19, 2004, after speaking with the School Board about the complaint regarding Lee, Zanca proceeded to Lee’s classroom to discuss the matter with him. Lee was absent from school that day, however, and Zanca examined the materials posted on the bulletin boards in his absence. In so doing, Zanca discovered certain items that, in his view, should not have been posted in a compulsory classroom setting. Specifically, he testified that he “could not find any reason why [these items] would be posted in a classroom.” Zanca removed five items (collectively, the “Removed Items” or the “Items”) from Lee’s bulletin boards: (1) a 2001 National Day of Prayer poster, featuring George Washington kneeling in prayer; (2) a May 15, 2004, Daily Press news article entitled “The God Gap,” outlining religious and philosophical differences between President Bush and his challenger John Kerry; (3) an October 14, 2002, USA Today news article entitled “White House Staffers Gather for Bible Study,” describing how then Attorney General Ashcroft led staffers in voluntary Bible study sessions; (4) a November 1, 2001, Daily Press news article, detailing the missionary activities of a former Virginia high school student, Veronica Bowers, who had been killed when her plane was shot down in South America; and (5) a June 2001 Peninsula Rescue Mission newsletter, highlighting the missionary work of Bowers. Zanca placed the Removed Items on Lee’s desk in the teachers’ lounge and left an explanatory note in Lee’s school mailbox. In his deposition for this case, Zanca testified that neither Tabb High School nor the School Board has any written policies on what a teacher may properly post on classroom walls or bulletin boards. Zanca explained, however,
that there is an applicable unwritten policy, custom, and practice for York County teachers in that regard, authorizing teachers to place materials on bulletin boards that relate to the curriculum being taught or that are of personal interest to them. For example, some teachers place famous quotes, articles on current events, and pictures of sports figures on the bulletin boards of their classrooms. Zanca explained that, as a general matter, he has always relied on the sound judgment of Tabb High’s teachers as to what materials should be posted in their classrooms. Although there is no written policy on the posting or removal of classroom materials, Zanca explained that his duties as Principal include the monitoring of such postings, as well as the removal of any postings that are inappropriate for the school setting. In determining whether any particular item should be removed, the School Board has accorded its principals broad discretion to evaluate and decide which postings are appropriate for a particular classroom setting. Zanca testified that the teachers at Tabb High have always understood that any postings contradicting the unwritten policy are subject to removal. Under the unwritten policy, inappropriate postings include items that violate the First Amendment, that are offensive, that use profanity, or that are otherwise unrelated to curricular objectives. In evaluating whether a particular posting is subject to removal, Zanca primarily assesses whether it is relevant to the curriculum being taught by the particular teacher. He testified that, although certain materials may be inappropriate if posted generally, they could well be appropriate when used in connection with a specific curricular objective. For example, some current events postings may only be appropriate when used in a classroom where history or government courses are taught. When Zanca first viewed the Removed Items, he saw that certain of the postings prominently included religious terms such as “Bible” or “God.” Although Zanca did not read any of the articles in their entirety, he exercised his discretion as Principal on the five Removed Items because he saw them as overly religious and thus violative of the Establishment Clause of the First Amendment. Aside from his determination that the postings might be legally
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Speech Rights of Public Employees
problematic, Zanca believed the Removed Items to be irrelevant to the Spanish curricular objectives that Lee was obliged to follow within his classroom. When Lee returned to Tabb High three days later, he found the Removed Items on his desk and Zanca’s note in his mailbox. Lee promptly discussed the matter with Zanca, who explained that he had received a citizen’s complaint about postings in Lee’s classroom. Zanca informed