Education Law Insights

Supreme Court Declines to Review Case on Public School Graduations in Churches

Posted by Jackie Wernz on June 19, 2014

The Supreme Court decided this week not to hear a recent case from the Seventh Circuit Court of Appeals (which has jurisdiction over Illinois, Indiana, and Wisconsin) regarding public school graduation ceremonies in churches. As Franczek Radelet reported when the decision was handed down in 2012, the Seventh Circuit held that a Wisconsin school district violated the First Amendment’s Establishment Clause by holding a graduation ceremony in a church with pervasively religious symbols. The Seventh Circuit found that such action could lead to the perception that the school endorsed the Christian religion. As we explained, the court stated:

Regardless of the purpose of school administrators in choosing the location, the sheer religiosity of the space created a likelihood that high school students and their younger siblings would perceive a link between church and state.” The majority reasoned that a reasonable observer could “conclude that the District would only choose such a proselytizing environment aimed at spreading religious faith – despite the presence of children, the importance of the graduation ceremony, and, most importantly, the existence of other suitable graduation sites – if the District approved of the Church’s message.”

After last week’s decision allowing prayer before town meetings (which we covered in an FR Alert), one might have expected the Supreme Court to take up (and even reverse) the Seventh Circuit’s decision. But the Court declined to even hear the appeal.

In a relatively uncommon step, Justice Scalia, joined by Justice Thomas, dissented from the Court’s denial of review in the case. Scalia compared the complaints of non-Christian parents about holding graduation ceremonies in churches to his own dislike for the public playing of “rock music and Stravinsky,” and expressed his belief that based on prior Supreme Court precedent, such an aversion “cannot be imposed by law because of the First Amendment.” In other words, according to Scalia and Thomas the Establishment Clause of the First Amendment does not even apply to, let alone prohibit, holding graduation ceremonies in churches. Scalia argued that because the Seventh Circuit’s decision was en banc (before all the judges of the Seventh Circuit), prompted three powerful dissents, conflicted with decisions that have long allowed graduation ceremonies to take place in churches, and conflicted with decisions upholding other public uses of religious spaces, Supreme Court review should have been granted.

The Supreme Court’s decision not to hear the case means the Seventh Circuit’s decision remains good law, and binding law for school districts in its jurisdiction. Notably, the decision does not hold that a graduation ceremony may never be held in a church or other religious building. Rather, the decision cautions against such proceedings being held in a location with the “sheer religiosity” of the church in question in the case. As our previous summary explained:

[T]he church . . . had a 15-20 foot tall cross at the front of the sanctuary, as well as Bibles and hymnals in the pews and religious literature in the lobby, including signs and pamphlets targeted at children. Some years, church members staffed the information booths and/or distributed religious literature.”

The reality of the decision, however, is that it is legally risky to hold a graduation ceremony in any church, and so caution is warranted by schools considering doing so. At the very least, review of the question by legal counsel is imperative.

California Court Finds Teacher Tenure, Layoff, and Dismissal Laws Unconstitutional

Posted by Jackie Wernz on June 12, 2014

By Guest Blogger Amy Kosanovich Dickerson

School leaders across the country are buzzing about a California Superior Court’s recent tentative ruling that the state’s teacher tenure, dismissal, and layoff laws violate the equal protection clause of the California Constitution. As can be seen in the analyses in the Chicago Tribune, Politico and Education Week, education and news groups are also speculating about the ruling’s significance for California and other states throughout the country.  Below is a brief summary of the decision and its potential implications for states across the country, including Illinois.

The Court’s Decision

In Vergara v. State of California, nine California public school students, supported by the group Students Matter, claimed that the state’s teacher tenure, dismissal and layoff statutes result in “grossly ineffective teachers” obtaining and retaining permanent employment, and that these teachers are disproportionately employed in schools serving predominantly low-income and minority students, in violation of the equal protection clause of the California Constitution. The court agreed with the students, finding that the statutes violate students’ fundamental rights to equal education “by adversely affecting the quality of education they are afforded by the state.” The court’s opinion references a significant amount of testimony presented at trial on these adverse effects, including testimony that 1-3% of teachers in California, or 2,750-8,250 teachers, are “grossly ineffective.”

In finding the state’s teacher tenure law unconstitutional, the court took particular issue with the fact that a California public school teacher may attain tenure in only two years, and that the tenure decision effectively must be made in the middle of the teacher’s second year under the law’s notice provision. The court found this short timeframe unfairly disadvantages both teachers and students, noting that two of the state’s own experts agreed that a three-to-five year probationary period would be a more beneficial time frame to make tenure decisions for both students and teachers.

The court also found that the state’s current teacher dismissal procedure is so complex, time consuming, and expensive that it effectively prohibits an effective, efficient, and fair dismissal of a grossly ineffective teacher. The court cited evidence that the dismissal process for a teacher in California can take anywhere from two to ten years and cost $50,000 to $450,000, and that as a result, dismissals are “extremely rare” because administrators believe it to be “impossible” to dismiss a teacher under the current system. The court also relied on testimony that the Los Angeles Unified School District alone had 350 grossly ineffective teachers it wished to dismiss at the time of trial for whom the dismissal process had not yet been initiated.

Finally, the court ruled that the state’s teacher layoff procedures are unconstitutional due to layoff decisions being based solely on a teacher’s seniority without any consideration of a teacher’s classroom performance or evaluation ratings. While the court’s ruling calls for the challenged statutes to be enjoined from being enforced, the court stayed such injunctions until any appeals of the ruling are completed.

Insights for School Leaders, in California and Beyond

Throughout its opinion, the Court distinguished California’s current tenure and layoff laws from those in other states, suggesting that other states’ laws would not present the same problems found by the court. For example, the court cited evidence that California is one of only five states with a probationary period before a teacher is awarded tenure of two years or less. Thirty-two states have a three-year teacher probationary period, and nine states have a four-or five year period. Similarly, California is among only ten states that consider seniority as the sole factor or a required factor when deciding teacher layoffs. While twenty states provide that seniority may be considered among other factors, eighteen states and Washington, D.C. leave the layoff criteria to school district discretion, and two states provide that seniority cannot be considered.

Thus, it is possible that student groups in states with laws similar to California might succeed on similar challenges based on the reasoning of this case. In states with laws that differ considerably from California’s, however, it is less likely that the court’s reasoning would support a challenge to the current law. For example, the recent amendments to Illinois’ teacher tenure, dismissal and layoff laws by Senate Bill 7 and the Performance Evaluation Reform Act (PERA) created numerous distinctions between Illinois’ and California’s laws. Namely, Illinois has a 4-year probationary period for teachers before they can be awarded tenure, and by September 1, 2016, teacher performance will be a factor in all tenure decisions for those teachers first employed by that date. Illinois also requires a teacher’s performance to be considered in a school district’s layoff decisions and has undergone changes to its teacher dismissal process that were intended to make the process more efficient.

In any event, there is no doubt that education leaders from across the country will be paying close attention to the outcome of any appeals filed in this case. And while the legal implications of the case may still be uncertain, this decision sends a powerful message about a growing trend of viewing policy on teacher employment decisions from the perspective of their impact on students.

Iowa Case Highlights Often Overlooked Risk of Releasing Personal Emails in Public Records Requests

Posted by Jackie Wernz on May 28, 2014

As a frequent advisor to school districts on freedom of information requests, the question I face most often is how a public body can protect a sensitive document from release. Rarely am I asked what might happen if a public body decides to release a record that could have been protected under a freedom of information law. A recent decision from the Iowa Supreme Court is a reminder of the importance of focusing on that question when choosing to release records that might be subject to an exemption under a records request law.

The Case

In Sebring v. Des Moines Independent Community School District, a former Des Moines school district superintendent, Nancy Sebring, sued the school district and a number of its officials, including the former school board president and school attorney for invasion of privacy. The school district and its officials had released certain sexually explicit emails Sebring sent or received on the school district’s email servers in response to a request for records under the Iowa Open Records Law. The request, from the Des Moines Register, had sought emails relating to Sebring’s impending departure from the school district to serve as superintendent in Omaha, Nebraska. The sexually explicit emails were not related to Sebring’s departure for Omaha, but incidentally included the term “Omaha” and so were uncovered in a broad search by the school district’s information technology department. Despite the fact that the emails were not responsive to the request, the school district released them to the newspaper, anyway.

In April, an Iowa trial court ruled that Sebring had sufficiently alleged claims against the school district to move forward with her case. The court noted that when the school district uncovered the emails, officials recognized that the emails could be evidence of misuse of technology by Sebring, and so could have led to discipline for Sebring. In Iowa, documents related to disciplinary matters are exempt from disclosure under the public records law. Accordingly, the court held, the school district should not have produced the records.

The school district appealed the decision to the Iowa appellate court, and the case made its way up to the Iowa Supreme Court. Earlier this month, the Supreme Court reportedly decided that it would not hear the school district’s appeal. The trial court’s decision thus stands, and Sebring’s case can proceed to trial.

Insights for School Leaders

Our focus in public records cases usually is on finding an exemption that applies to the (often, sensitive) records that a public body does not want to release. But the Sebring case refocuses our attention on the potential fallout if a public body chooses to release a record that could be protected by an exemption. There are a couple of exemptions that are similar to the one addressed in Sebring in Illinois, for instance. Under our Freedom of Information Act (FOIA), not only are certain disciplinary records exempt from release through a cross-reference to the Personnel Records Review Act, but there is also a general catch all exemption for records the release of which would be an unwarranted invasion of personal privacy. Records that are not related to one’s public business may fall under that latter exemption. Notably, the decision whether or not to release exempt records typically is a choice for public bodies. Under the Iowa and Illinois public records laws, for instance, a public body may rely on an exemption to withhold a record, but it is not required to do so. The Sebring case is an important reminder that there can be legal risks in how public bodies exercise that choice, and specifically where a public body chooses to release a document that might be subject to an exemption. That release may not violate the public records law, but it might provide fodder for a lawsuit by the subject of the records released.

Federal Court Says New York City Schools Can Prohibit “Religious Worship” In School Facilities

Posted by Jackie Wernz on April 7, 2014

As reported in the New York Times, the Second Circuit Court of Appeals recently held that a school district could prohibit outside community groups from using school facilities for “religious services” without violating the Free Exercise clause of the First Amendment to the U.S. Constitution. The decision is noteworthy because prior U.S. Supreme Court decisions suggested that student and community groups had relatively broad rights to conduct religious activities in school facilities, at least where the school “opened the door” to similarly-situated non-religious groups. The decision is fairly narrow, though, and the reality is that even after the case, most religious activities by student and community groups will be permissible once a forum is “opened” to outside groups. The case does provide strong support for a decision by a school district with legitimate concerns about community perceptions of “religious services” on school grounds to prohibit such services, however, and so is worth a closer look.

The Court’s Decision

In Bronx Household of Faith v. Board of Education of the City of New York, the Board of Education made New York City’s school facilities available outside of school hours for use by community groups and organizations. The school district “subsidized” the facility use in that it did not charge a fee for such use. The Board was concerned that allowing groups and organizations to hold religious worship services under those circumstances would create the perception that the City was improperly supporting or endorsing religion. Accordingly, the Board prohibited use of the facilities for “religious worship services.”

A religious group sued, arguing that the prohibition violated the First Amendment’s protections of free speech and free exercise of religion by limiting their ability to engage in their religious speech or expression. The group also argued that the rule created an impermissible entanglement with religion in violation of the Establishment Clause, because school leaders would have to determine what was or was not “religious worship services.” The Second Circuit, which is the federal appeals court with jurisdiction over Connecticut, New York, and Vermont, previously addressed and rejected the free speech claim in an earlier appeal. In this case, the court focused on the Free Exercise and Establishment Clause issues.

The Second Circuit held that the Board’s prohibition did not violate the Free Exercise Clause or Establishment Clauses. The court found that the prohibition was content-based and applied equally to all entities conducting religious services without consideration of an entity’s religious viewpoint, and so did not violate the Free Exercise Clause. The court was persuaded by the following facts in finding no violation:

  • The fact that the Board’s policy treats all users, whether religious or secular, the same;
  • The fact that there was no evidence that the Board had an animus against religion generally or any religion that conducted worship services specifically;
  • The fact that the Board had a bona fide and reasonable concern that allowing the free use of school facilities for religious worship would create a substantial risk of a claim that the Board was improperly supporting or endorsing religion in violation of the Establishment Clause; and
  • The fact that the Board’s policy did not prohibit all religious worship by groups in any location, but instead left groups free to conduct worship services wherever they choose other than the Board’s schools.

For many of the same reasons, the court found no violation of the Establishment Clause.

Insights for Educators

 Although the Bronx Household decision is not binding law outside of the Second Circuit, it provides persuasive authority to school leaders who wish to avoid the appearance of improper entanglement with religion by prohibiting religious services on school grounds. Based on the facts of the case, such prohibitions will be strongest where coupled with a bona fide and reasonable fear that there will be a concern about impermissible entanglement with religion if religious services are allowed. Such a concern may be reasonable if, for instance, the facilities are provided for free or other resources are provided by the school to facilities users. If there is a history of animus by school leaders against religion generally or a particular group that conducts religious services, such prohibition will be at greater risk of constitutional challenge.

The decision does not alter the robust rights of student and community groups to use school property for other religious purposes when such property is generally made available for non-religious uses. For instance, it is unquestionable that a student group or outside group or organization can hold meetings involving singing religious songs, reading bible lessons, and memorizing scripture in a public school where school policy allows similarly-situated non-religious groups, such as social, civic, and recreational groups, to do so, as long as those groups comply with relevant school district policies and procedures and relevant laws.

The Bronx Household case is a good reminder of how nuanced and frequently changing this area of law is. School leaders are advised to work closely with legal counsel whenever questions arise about the rights of access religious groups may have to public school facilities so as to avoid a First Amendment constitutional challenge.

How Lessons Learned From “Yik Yak” Can Help You Address The Next Novel Social Media Bullying Trend

Posted by Jackie Wernz on March 10, 2014

The big news in education technology this week is Yik Yak, a free, anonymous social networking application that allows users to post comments that can be seen by others within a 5- to 10-mile radius. The app was intended for use by college students and is described as a localized Twitter for campus communities. But the anonymity of the app allows users to bully others without any risk of identification, and has led to reports of severe bullying in schools across the country. As the Chicago Tribune reported, Yik Yak disabled its app within the Chicago area after at least four schools had to address bullying concerns on the app with their students and parents.

One comment that has repeatedly been made about the recent Yik Yak scandal is that it shows how quickly social media moves and how difficult it is for school administrators to address new issues when they arise. For instance, the Yik Yak app only became popular within the last few months and so was not banned in many schools prior to these recent incidents. And even if banned and blocked through a school’s internet filters, if a school district allows students to access data plans on personal technology devices at school they still can access the app despite the filters and without school officials knowing.

The question arises, then: What can school leaders do to put themselves in the best position to deal with novel social media and technology issues when they arise? Here are a few ideas:

  1. In student handbooks or other informal guidelines, consider specifically banning student use of any social media program or other technology on school grounds or at school-related events and activities for the purpose of bullying other students. Also consider banning such use anywhere if it causes or reasonably could be foreseen to cause a material and substantial disruption to the school environment or invasion of rights of others in the school community. This way, discipline of perpetrators will be allowed even if a new program or technology used for bullying (such as Yik Yak) is not specifically prohibited and, if it is serious enough, even if it occurs off grounds.
  2. Also consider banning student use of data plans on personal technology devices at school. This will limit the circumstances when students can avoid a filter or other screening technology when implemented. It also allows school leaders to monitor student use of websites and technology through the Internet system, which is not possible when a student uses their own data plan.
  3. Educate students, parents, and other members of the school community about the harms that arise from bullying before an incident occurs. Such education should be broad enough to cover types of behavior that are now known or that may occur in the future. Your legal counsel is a good resource for training that meets these needs.
  4. Ensure that technology policies and procedures are up-to-date and broad enough to put the school district in the best position to address novel misconduct by students, staff, and other members of the school district community when it occurs. For school districts in Illinois, Franczek Radelet has a recent technology policy package created for that purpose.

Critical Limitations Soften Blow of Seventh Circuit Decision Voiding Indiana School’s Boys Basketball Hair Length Rule

Posted by Jackie Wernz on February 26, 2014

School districts across the country allow their athletic departments and coaches to regulate student player appearances, including rules requiring male players to wear short hair styles. In a recent decision, Hayden v. Greensburg Community School Corporation, the Seventh Circuit Court of Appeals, which has jurisdiction over Illinois, Indiana, and Wisconsin, struck down such a hair length rule for male basketball and baseball players at an Indiana school. The court found that the rule illegally discriminated against male students. The case is one of the first in decades to address hair length rules in school, and one of the only cases ever to address the important role of such rules in school athletics. Although the decision appears at first blush to be a warning against such rules, a closer look at the decision shows critical limitations that soften its blow. Although the case justifies school leaders taking a close look at hair length rules in male athletics programs, it certainly is not the death knell for such rules when properly designed.

The Court’s Decision

In Hayden, the parents of a middle school basketball player challenged a hair length rule on the boys’ basketball team. According to the coach of the basketball team, the rule was intended to promote team unity and project a “clean cut” image for the team. The student, however, did not “feel like himself” with short hair and alleged that the rule, among other things, discriminated against him based on his gender. The school’s boys’ baseball team had a similar hair length rule, but none of the girls’ teams did.

The Court did not foreclose that a boys’ team could have a hair length rule even if the female team did not have a similar rule. Borrowing a standard from employment discrimination cases dealing with grooming standards, the court assumed (without deciding) that a school may have sex-differentiated standards if they are: (1) in some way justified by community norms; and (2) part of a comprehensive, evenly-enforced grooming code that imposes comparable burdens—if not identical ones—on males and females alike. Applying that standard, the court held that the hair length rule discriminated against male students on the basis of gender based on the second prong of the test.  Although the parties stipulated that female players were subjected to some grooming standards, there were no facts regarding the content of those standards, and so the court could not “assess whether the standards [applied to girls] are comparable, [to those applied to boys], notwithstanding the disparity in the hair-length component of the grooming standards.”

Application by School Leaders 

The Seventh Circuit’s decision, which is one of the first of its kind and one of the first decisions addressing hair lengths in schools in decades, has garnered media attention and warrants a close look at hair length policies in male athletic programs.  But as the summary above shows, there are important limitations necessary to understanding how the case should be applied by school leaders. Specifically, the court did not hold that boys’-only hair length policies are not acceptable in K-12 public schools. Rather, the court suggested that such hair-length policies are acceptable if they are based on relevant community norms and are part of a larger grooming program that includes limitations that are comparably limiting to male and female students.

Notably, it cannot simply be assumed that hair-length policies for boys are based on relevant community norms. The Hayden court questioned whether male hair length standards (which came about decades ago in the 1960s and 1970s) are still relevant community standards today. As the court pointed out, some members of the court “might [even] find themselves in trouble” under such a rule, which prohibited hair worn over the ears, collar, or eyebrows. But as the dissent pointed out, the courts have adopted an extremely deferential view of such questions in the employment context, finding that appearance regulations are defensible if they have some justification in accepted social norms. So school districts should be able to successfully argue that, at least in their communities, hair-length rules for boys are based on relevant community norms.

Care should also be taken to establish that there is an overarching grooming policy that is equally harsh on boys and girls alike. The court provided some examples of questions it might ask to determine if a boys’ hair length policy is part of a larger, consistently-applied grooming program that includes limitations on both male and female students. For example, a court might ask:

  • Are female students prohibited from wearing jewelry?
  • Are female students required to wear their hair in any particular way with the goal of having a neat, clean-cut appearance?
  • Are there limits, other than those on “extreme” hairdos like Mohawks, on how female students can style their hair and are any of those limits based on community norms (e.g., a prohibition on “buzz cuts”)?
  • Are the respective grooming standards enforced evenhandedly between girls and boys?

Although these are just examples, they provide some insight into the types of limitations on female programs that a court might consider when determining if a grooming policy limits boys and girls equally.

Based on this case, school leaders should take a close look at any gender specific grooming policies for their sports teams to ensure that they are based on relevant community standards and that any limitations that apply to only one gender are based on community norms and are part of a comprehensive grooming policy that, as a whole, is equally burdensome on male and female players. If a rule complies with these standards, it will be in the best position to withstand scrutiny even after the Hayden decision.

What School Leaders Really Should Know About the Department of Education’s Guidance on Discriminatory Discipline

Posted by Jackie Wernz on January 15, 2014

Last week, the Department of Education issued a guidance package to help schools administer student discipline without discriminating against students on the basis of race, color, or national origin. The issue of discriminatory discipline is not new; indeed, the Franczek Radelet Education Insights blog warned about the issue early last year. Moreover, the guidance does not create any new law but rather provides information and examples of the Department’s expectations under existing law. Nonetheless, the new guidance is the first national guidance issued on school discipline and likely will be given some deference by courts interpreting the issue, and so is noteworthy and warrants particular attention from school leaders.

The core of the Department’s guidance can be found in a Dear Colleague Guidance Letter (DCL) that was prepared in conjunction with the Department of Justice. The DCL begins with the recognition that discipline is essential for the operation of safe and orderly schools. The DCL then cites statistics showing that discipline in public schools often falls disproportionately on students in minority groups and documents the harms on those students that results. The DCL warns that federal law prohibits discrimination by public schools in the administration of student discipline based on race, color, and national origin, and that the Department will investigate complaints of such discrimination and may require schools to take steps to remedy any issues it finds.

The DCL describes at length and provides examples of the types of discrimination that the Department investigates (“different treatment” discrimination, which is often thought of as intentional discrimination, and “disparate impact” discrimination, which results when there is not necessarily an unlawful intent behind discrimination but it nonetheless leads to an unlawful impact on a particular group). Notably, the DCL makes clear that discrimination can occur at all levels of the disciplinary chain of command, from the decision of a teacher to send a student out of class to the final disciplinary decision by administration. The DCL also clarifies that school districts can be responsible for discrimination not just by employees, but also by agents such as security guards or even law enforcement.

The appendix to the DCL provides recommendations for school districts, administrators, and teachers on how to avoid illegal discriminatory discipline. These recommendations fall into three categories: (1) climate and prevention, (2) clear, appropriate, and consistent expectations and consequences, and (3) equity and continuous improvement. A Guiding Principles document released with the guidance packet provides a succinct summary of these categories:

First, take deliberate steps to create the positive school climates that can help prevent and change inappropriate behaviors. Such steps include training staff, engaging families and community partners, and deploying resources to help students develop the social, emotional, and conflict resolution skills needed to avoid and de-escalate problems. Targeting student supports also helps students address the underlying causes of misbehavior, such as trauma, substance abuse, and mental health issues.

Second, ensure that clear, appropriate, and consistent expectations and consequences are in place to prevent and address misbehavior. By holding students accountable for their actions in developmentally appropriate ways, students learn responsibility, respect, and the bounds of acceptable behavior in our schools and society. This also means relying on suspension and expulsion only as a last resort and for appropriately serious infractions, and equipping staff with alternative strategies to address problem behaviors while keeping all students engaged in instruction to the greatest extent possible.

 Finally, schools must understand their civil rights obligations and strive to ensure fairness and equity for all students by continuously evaluating the impact of their discipline policies and practices on all students using data and analysis.

Another key recommendation is to use law enforcement appropriately. This portion of the DCL and related materials has received significant media attention, including from the ACLU and the Associated Press. As Attorney General Eric Holder explained in a press conference, “A routine school disciplinary infraction should land a student in the principal’s office, not a police precinct.” The DCL recommends, among other things, ensuring that school officials only utilize law enforcement when there are major threats to school safety or serious-school-based criminal conduct that cannot safely and appropriately be managed by the school’s internal discipline policies.

Also key are recommendations that schools monitor the impact of discipline policies before a complaint is filed. The DCL recommends that schools collect and use multiple forms of data, including a discipline incident database, regarding discipline incidents and conducting additional investigation where necessary. Notably, the DCL makes clear that schools are responsible for the following: (i) developing and implementing uniform standards for the content of discipline files, (ii) developing and training staff on uniform standards for entry and maintenance of files, and (iii) keeping data on teacher referrals and discipline to assess whether particular teachers may be referring large numbers of students by race for discipline so that follow up with teachers can be taken as needed.

The guidance package includes, in addition to the DCL and the Guiding Principles document, other resources for schools in implementing fair discipline policies. These include a Directory of Federal School Climate and Discipline Resources and a Compendium of School Discipline Laws and Regulations.

 

It’s Beginning to Look a Lot Like a Lawsuit: The Acceptable Role of Religion in Public School Winter Musical Programs and Toy Drives

Posted by Jackie Wernz on November 26, 2013

Thanksgiving is not yet here, but school districts across the country already are grappling with an important question regarding later, religious holidays like Christmas. The question:  Can religious content be included in winter programming in public schools?

The inclusion of religion-themed content in musical programs and charity drives has been a hot button issue for schools this year. For example, a New Jersey school district recently came under fire for banning all Christian music from its elementary schools’ winter concerts. After pressure from a pro-religion organization, Alliance Defending Freedom, the school district reversed course and said it would allow Christmas songs in the concerts, after all. Similarly, a Colorado school district reportedly broke ties with a Christian organization that collects boxes of toys from students to send to impoverished children overseas. A secular-rights group, the American Humanist Association, fueled the change in policy by challenging the practice through a letter to the school district.

The organizations that either support or challenge the inclusion of religious content in school programming often portray the issue as simple. For instance, the Alliance Defending Freedom recently sent a letter to 13,000 school districts across the country suggesting that the right to include religious content in school musical programs and toy drives is nearly absolute. But as with most constitutional issues in public schools, the reality is that decisions must be made on a case-by-case basis with critical attention to the rights on both sides.

(more…)

President Expected to Sign Epi-Pen School Food Allergies Bill

Posted by Jackie Wernz on November 14, 2013

As reported by the Washington Post, President Obama is expected to sign a bill into law encouraging states to require schools to take greater efforts to protect students with food allergies. The bipartisan bill was proposed by Illinois Senators Dick Durbin (D-IL) and Mark Kirk (R-IL) following the deaths of two girls in Illinois and Virginia from severe food allergies.

The bill comes at a time of heightened focus by the media and the government on the issue of childhood allergies. A recent New York Times Sunday Reviewarticle, for instance, delved into the connection between food allergies and the decline of agrarian culture. And the Centers for Disease Control and Prevention recently issued voluntary guidelines for schools regarding managing food allergies in educational programs (more information from the CDC can be found here).

The bill also is in addition to numerous State law requirements for schools regarding allergies. In 2011, for instance, Illinois school districts were first required to implement a food allergy management policy under Illinois law. As one source reports, the Illinois law “allows schools to maintain a supply of epinephrine on site and for school nurses to administer epinephrine to any student suffering from a severe allergic reaction.” The guidelines required under the Illinois law must comport with Illinois State Board of Education and Illinois Department of Public Health guidelines on food allergies that were published in 2010. In all, twenty-seven states reportedly have  laws allowing schools to administer epinephrine to students without a prescription.

The bill would expand on state law by offering a financial incentive to states that require schools to do all of the following:

  1. Allow a wider array of trained school personnel to administer epinephrine to students reasonably believed to be having an anaphylactic reaction;
  2. Maintain a supply of epinephrine in a secure location that is easily accessible to trained personnel of the school for the purpose of administration to any student of the school reasonably believed to be having an anaphylactic reaction; and
  3. Have in place a plan for having on the premises of the school during all operating hours one or more individuals who are trained personnel to administer epinephrine.

Notably, although many students with severe food allergies bring their own epinephrine injectors to school, the bill reportedly nonetheless would help numerous children who do not know they have life threatening allergies. Approximately a quarter of recent administrations of epinephrine in the school setting involved students who were not previously aware of their allergies and so would not have had a personal supply of epinephrine.

If the bill is signed into law, additional state action will be required for the mandates of the bill to reach school districts. Even if a state implements the mandates of the bill, moreover, other issues relating to food allergies in schools – such as specifics of education and training, implementation of individualized health care and food allergy action plans, procedures for responding to life-threatening reactions to food, and protocols to avoid exposure to food allergens – are not covered by the bill and so will remain subject to state law or, where there is none, school district discretion.

Settlement Reached in Case Over Jesus Portrait in Ohio Middle School

Posted by Jackie Wernz on October 17, 2013

In an earlier blog post, we addressed whether an Ohio school district violated the First Amendment by hanging a portrait of Jesus in a middle school.  The portrait allegedly was a gift to the school board by a Christian student club and had been hanging in the school district’s schools since the 1940s. In February, the school board voted to allow the picture to remain despite a lawsuit filed by the ACLU and the Wisconsin-based Freedom from Religion Foundation (FFRF). The school board said that the portrait is not owned by the school but rather belongs to a Christian student club, and that removing it might violate the First Amendment rights of the students in the club.

The parties reportedly reached a tentative agreement months ago when, in April, the school board took the picture down. The legal fight was rekindled, however, when the ACLU and FFRF learned that the school district continued to keep the portrait in its high school building in an area visible to those entering an art-storage area, and displayed the picture on a school lawn during a prayer meeting. After a flurry of more legal filings, the school district decided to settle, agreeing to remove the picture from its school buildings, to pay each of the anonymous students who brought the complaint $3,000, and to pay the ACLU and FFRF $80,000.

As we pointed out in our earlier blog post, there are a number of key takeaways that school leaders can glean from this case.

Courts are generally skeptical of religious displays, including religious works of art, that appear to be school-sponsored speech unless there is a clear secular purpose behind the display. A secular purpose might include a display including art work from a number of religions or examples of historical figures. A court also may be concerned if only one religion, such as Christianity, is represented. When the religious speech purportedly is that of a student or students, the issue becomes more difficult. Whether it is a posting by a student group, a student submission to a class or contest that includes religious content, student speech with religious undertones at a talent show or a graduation or other assembly, or the reading of prayers by students at a football game, there are a myriad of legal rules and challenges of which school leaders should be aware. The Ohio settlement makes clear that balancing these rules and challenges can be difficult, and sometimes costly.