Education Law Insights

Update: Texas Cheerleaders’ Religious Football Banners

Posted by Brian Crowley on October 25, 2012

In follow up to my previous blog entry, Texas School Bans Cheerleaders’ Religious Football Banners: The Right Choice?, the Texas state court issued its ruling last week. The court ruled that the Kountze cheerleaders could continue to display religious-themed banners at football games. The court agreed with the cheerleaders, their parents, and the Texas Attorney General that the speech was individual speech by the students that could not be stifled by the school. As you may recall, that is not the conclusion I reached in my previous blog post. And I’m not the only source that thinks the ruling is legally questionable. This story is far from over, as the school district may appeal the trial court’s decision to a higher court and, even if it does not, a trial will be held in June on as to whether the school district will be permanently enjoined from prohibiting the banners. For that reason, those who have not read the prior post may still find my legal analysis interesting for learning more about the legal issues underlying this case. Read the post here.

Eighth Circuit: School Discipline of Missouri Students For Inflammatory Website Constitutionally Sound

Posted by Brian Crowley on October 25, 2012

As Education Week recently reported, the Eighth Circuit Court of Appeals has held that two high school students from Missouri were unlikely to establish a First Amendment violation for discipline based on an inflammatory website they posted off-campus on their own time. In S.J.W. v. Lee’s Summit R-7 School District, the court approved of the school’s discipline even though the bulk of the disruption caused by the website was the result of a post by an unrelated third party. The Court also rejected yet another attempt by proponents of student speech such as the American Civil Liberties Union (ACLU), to argue that all off-campus student speech should be off limits for discipline by public schools. The case provides guidance to school leaders on the challenging question of when discipline is warranted for off-campus, online misconduct by students.

The Facts

In December, 2011, two male high school honor students, who were twin brothers, posted racially and sexually charged slurs on a website. The website – northpress.tk – was reportedly created on a Dutch server that could not be found on a Google search. The boys took this step with the intent of limiting access to six or seven friends and preventing the website from reaching a broader school audience.

A third, unrelated student added a post titled with the N-word which was accessed by multiple students at school and led to a disruption in school that one teacher compared to the aftermath of the September 11 attacks. As the brothers alleged in their complaint, the twins were not aware of the post, which was only on the site for approximately 12 hours before being removed by the third student. The twin brothers were nonetheless suspended, first for 10 days and then for 180 days, when the school found out about the website and a disruption ensued. The boys’ school gave them the option to attend an alternative school, but their parents reportedly filed a lawsuit in March because they believed the academics and extracurricular activities at the alternative school were not up to their standards.

A federal District Court determined that, although the website created a substantial disruption, the students were likely to succeed on the merits of their First Amendment claim and were entitled to an injunction. This decision was important because, with the injunction and the long life-span of federal trials, the students were likely to graduate before the trial court weighed in with a more permanent decision. The Eight Circuit, however, disagreed and held that the students were not likely to succeed on the merits of their claim and, so, were not entitled to an injunction. (more…)

New FCC Mandates Affect Schools

Posted by Brian Crowley on October 19, 2012

With guest blogger Ashley Heard*

Many school districts and institutions of higher education use two-way radios for campus security, athletics, bus transportation, and facilities management. New FCC mandates require that all such radio systems be “narrowbanded,” or made to operate on channel bandwidths no bigger than 12.5kHz, by January 1, 2013. “Narrowbanding” is a process of updating radio technology so that it is more efficient.

In order to comply with the “narrowbanding” mandate, all radios must be either reprogrammed or replaced. Additionally, the corresponding FCC licenses must be updated to reflect the radios’ new mode of operation. The good news for schools is that most radio technology made after 1997 can be reprogrammed to operate in 12.5kHz. Moreover, there is no FCC fee for updating the corresponding licenses. Equipment made prior to 1997 and any equipment made thereafter that cannot be reprogrammed will have to be replaced.

Any systems that are not “narrowbanded” and properly licensed by January 1, 2013 are subject to license revocation and fines of up to $10,000 a day. Additionally, noncompliant systems may experience interference or be taken off the air entirely.

Radio users who worry they won’t meet the January 1, 2013 deadline may request a waiver. However, the FCC has indicated an unwillingness to grant waivers and the request process is lengthy. Thus far, at least one organization operating in the Illinois education space, First Student, a school bus provider, has received a waiver [pdf]. First Student has until January 1, 2014 to “narrowband.” The lesson for school and district leaders is to ensure they are on track to meeting the January 1, 2013 deadline and, if not, request a waiver immediately.

Overall,Illinoisradio users are making strong progress toward meeting the “narrowbanding” mandate. Under 20% of radio transmitters in the state remain noncompliant.

Looking toward the future, the FCC plans to undergo additional “narrowbanding.” Radio users should expect to “narrowband” from 12.5kHz to 6.25kHz though the FCC has not set a timeline for this second round of “narrowbanding.” School and district leaders would be wise to plan early for impending “narrowbanding” mandates.

* Ashley Heard, a law student at Loyola University Chicago School of Law, is Franczek Radelet’s Fall 2012 education practicum student.

 

Texas School Bans Cheerleaders’ Religious Football Banners: The Right Choice?

Posted by Brian Crowley on October 12, 2012

Next week a Texas state court will address a lawsuit filed by Kountze High School cheerleaders on some of the hottest issues in Texas: religion, schools, and football. The cheerleaders allege that their school superintendent prohibited them from writing religious messages on banners at football games, in violation of the First Amendment. The case wades into the murky legal waters regarding student-initiated prayer at school events. Was the school district’s decision the right choice? Here is this school lawyer’s take.

The Facts

The Kountze High School cheerleaders, dressed in uniform, hold 30’ x 10’ banners for their football team to run through at the beginning of football games. Cheerleaders use such banners across the country, typically with sayings like “Beat the Bulldogs” or “Trounce the Tigers,” and the cheerleaders are typically allowed to choose what is on the banners. But these Texas cheerleaders chose sayings from the Bible for their signs. An example of the language used is: “But thanks be to God, which gives us Victory through our Lord Jesus Christ. 1 Cor. 15:57.”

Based on a letter from the Freedom From Religion Foundation (FRFF), which advocates for the separation of church and state, the school district superintendent prohibited the cheerleaders from unfurling further religious banners. The story since has gone viral, with recent coverage by the New York Times, the Wall Street Journalthe Washington Post and the Los Angeles Times. Last week, a Texas state court judge refused to grant the cheerleaders a temporary injunction, but reportedly did agree to extend a temporary restraining order until the parties could meet in court to address the cheerleaders’ request for a permanent injunction. The parties will face off in court next week.

Tenuous Confidence

Both sides appear quite confident in their legal arguments, but there is no court case that directly addresses the issue before the Texas court. In its written response to the lawsuit, the school district relied on a 2000 United States Supreme Court case, Santa Fe v. Doe, in which the Court struck down a school district policy allowing student-led prayer over a loud speaker before football games. The FRFF also relied on that decision in a brief in support of the school district. (more…)

2013 School Board Elections: Handling Nominating Petitions and Objections to Petitions

Posted by Brian Crowley on October 1, 2012

With guest blogger Scott Metcalf

There is confusion and concern about how school districts should handle receiving nominating petitions and objections to petitions for the 2013 school board elections. The Election Code says that school board nominating petitions must be filed between December 17 and 24, 2012. Objections to nominating petitions must be filed within five business days after December 24.

Many school districts intend to be closed at some point during the weeks of December 24 and December 31 (which both fall on Mondays this year). But, the law says certain things and doesn’t say others.

First, while the Election Code requires the office in which petitions are filed to remain open until at least 5:00 p.m. on December 24, the law does not specify how long the offices must be open before 5:00 p.m. In our opinion there is no legal requirement that the office be open for a specific number of hours, only that it be open until 5:00 p.m. Second, nothing requires a school district to open its offices on the five business days after December 24 (i.e., December 26-28, December 31, and January 2). One Illinois Appellate Court has held that the relevant business days for determining when objections are due are the regular business days of the public body that accepts the nominating petitions. The business days of the State Board of Elections would not be relevant for school districts. Thus, a school district could be closed on December 31, but would have to accept objections for one additional day (i.e., the last day for accepting objections would be January 3 instead of January 2). (more…)