Education Law Insights

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

Posted by Brian Crowley 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 Brian Crowley 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.