A recent lawsuit out of Ohio brings a local flair to what has otherwise become a relatively common story. We’ve all heard of teachers being disciplined or dismissed for posting something thoughtless online that led to community uproar. But did you ever think it would happen with a post about … milk?
My Twitter followers may have seen my retweet of the NSBA Legal Clips story about this case last week. The lawsuit, which was filed by the ACLU in Ohio, involves a former teacher, Keith Allison, who alleges he was fired by Green Local School District (GLSD) because of a message he posted on Facebook on his own time and off of school grounds. The post was made in the Summer of 2014, and urged readers to choose plant-based milk over cow’s milk. The post showed a picture of a young calf in a small crate and said:
The cruelty of separation, loneliness, and infant slaughter lingers inside each glass of cow’s milk. Your voice can help change the system. You don’t have to support this. Plant-based milks are everywhere and are delicious.
Turns out that the community GLSD serves is heavily populated with dairy farmers. Allison’s post even said “This place is five miles from my house.” Allison’s supervisor allegedly called him in after the school year began and said that teachers like himself needed to take care not to offend the agricultural community. His pay was cut, and then at the end of the year his contract was not renewed. Although he was later hired for a different position, Allison says the new position was not as good as the old, and that he feels now he must censor his speech to avoid further retaliation by GLSD.
Those who read the blog know that a public school district that disciplines or terminates an employee for off-campus, online speech has to contend with the First Amendment. Teachers and other school employees do not shed their free speech rights simply by being hired by a public school. To survive a First Amendment challenge, a school district will need to show one of the following three things:
- That the employee was speaking as a public employee, not a private citizen;
- That the employee was speaking on a matter of purely private concern, not public concern; or
- That the employer’s interest in an efficient, disruption-free workplace environment outweighs the employee’s right to speak freely on the issue.
Here, there is really no question that Allison, who was speaking on his own time and not in any manner that was compelled by his position, was speaking as a private citizen. Similarly, animal rights and the other fundamentals of veganism are matters of concern to the public, not just petty gripes or other concerns relevant only to the speaker. So this case will likely hinge on whether GLSD is able to show that its interest in an efficient, disruption-free workplace outweighs the Allison’s right to speak freely about veganism.
The unique nature of the locality, which contains a large number of dairy farmers, might weigh in the school district’s favor on that issue. But remember that typically a “heckler’s veto”—mere disagreement by the community with a speaker’s viewpoint—is not enough. If the school district can show that community members responded to Allison’s speech in a manner that disrupted the school district, though, that might help tip the scales in favor of their decision. Maybe there was some concern by community members who lived near Allison’s home that they were being singled out or threatened by that comment about the crate being “five miles” from Allison’s home? As with all of these cases, the analysis will be very fact-specific, and we will have to wait and see how the First Amendment analysis plays out. But this case is an important reminder of how local issues can come into play when dealing with online speech by teachers. If you want to find out more, you can read a copy of the complaint and an article about the case here at Cleveland.com.
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.
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:
- 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.
- 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.
- 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.
- 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.
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.
A portrait of Jesus Christ that has been hanging in an Ohio public middle school since the 1940s is once again garnering national headlines. The school district reportedly moved the portrait earlier this week from the middle school to a local high school.
A lawsuit filed early this year against the school district by three anonymous students alleges that the portrait of Jesus was a gift to the school by a Christian student club and is therefore the school’s speech. Because it is religious in nature and there is no secular purpose for hanging the picture, the lawsuit argues that hanging it in the school violates the First Amendment’s prohibition against establishment of religion. In February, the school board voted to allow the picture to remain despite the lawsuit, saying that the portrait is not owned by the school but rather belongs to a Christian student club. The recent move of the portrait to a new school purportedly was a decision of the student club, not the school. The school suggested that removing the portrait would violate the First Amendment rights of the students in the Christian club. Which side is right?
There is not an easy answer, as is often the case with religious school speech questions. A first important consideration will be the context in which the portrait is hung. As the ACLU’s initial letter to the Ohio school district explained, courts are generally skeptical of religious displays, including religious works of art, that appear to be government sponsored unless there is a clear secular purpose behind the display. Examples of secular displays might include a display that includes art work from a number of different religions in an effort to teach students about the impact of religion on art or a display in which students are allowed to hang photographs of their choice and a student submits a religious photograph for the display. In contrast, courts have held particular works of art to violate the Establishment Clause where they are relatively isolated from other government-sponsored displays. The ACLU’s letter alleged that the Jesus portrait at issue here was not in a larger display of “world-renowned historical or religious figures,” and rather was hung in the middle school near portraits of alumni of the school. If those facts are true, and if the move to the high school did not remedy the problem, a court would be much more likely to find the portrait to be unconstitutional.
Earlier this month, a New Jersey appellate court affirmed the dismissal of a tenured teacher for comments she made about her students on Facebook. Good summaries of the case, In re O’Brien, can be found through the National School Boards Association and Education Week (subscriber access only). But the case warrants a closer look for school leaders and employees who wish to better understand First Amendment protections of school-employee speech on the internet. Although the school district was allowed to dismiss the teacher in this situation, where she criticized her young students in an inflammatory way, there is a blurry line between protected and unprotected employee online speech that administrators must be careful to understand. Below are a summary of the facts in the case, the relevant legal standard and its application to O’Brien’s situation, and some lessons that school administrators and employees can learn from the ruling.
In 2010-2011, Jennifer O’Brien was a veteran teacher with over a decade of experience in the Paterson, New Jersey public schools. At the start of the 2010-2011 school year, Paterson unexpectedly was assigned to teach first grade at a new school that was predominately comprised of minority students, including African-Americans and Latinos. All of the students in her class, in fact, were either Latino or African-American.
O’Brien began to believe that six or seven of the students in her class had behavioral problems, which were having an adverse impact on her classroom environment. One student struck her, another stole money from her and other students, and some students hit each other.
O’Brien responded to these issues by sending disciplinary referrals to the school administrators on several occasions, but she thought the referrals had not been addressed adequately. O’Brien then posted two posts on her Facebook page relating to the issues:
“I’m not a teacher—I’m a warden for future criminals!”
“They had a scared straight program in school—why couldn’t [I] bring [first] graders?”
O’Brien said she posted the statement that her students were “future criminals” because of the behavior of some – but not all – of the students, not because of their race or ethnicity. News of her posts spread quickly throughout the school district, however. Two angry parents went to her principal’s office to express their outrage, and one parent threatened to remove her child from school. The school also received at least a dozen irate phone calls. Twenty to 25 people gathered outside the school to protest because of the statements, and news reporters and camera crews from major news organizations descended upon the school. At the next Home-School Council meeting, the majority of the meeting was devoted to O’Brien’s posts and parents expressed their outrage over the posts. When O’Brien was made aware of the outrage against her posts, she was surprised that her posts had led to such a reaction. (more…)
The media coverage of the Sandy Hook school shooting is tapering down, but the lessons for school administrators in its wake are just beginning. One such lesson comes after a California school suspended a high school senior for writing a poem about the Connecticut tragedy. The case provides an opportunity to consider the standards for when student speech is protected, even if it is controversial, and when it is a red flag warranting discipline and other school action.
In late December, the Life Learning Academy suspended a 17-year old student for a poem she wrote about the shooting at Sandy Hook Elementary School in Newtown, Connecticut. The poem included lines such as “I understand the killings in Connecticut. I know why he pulled the trigger.” The student told ABC News that the meaning of the poem is about society and how she understood why things like the incident happened. She explained that she wasn’t agreeing with the actions of the shooter, but “that’s how the school made it seem.” She stated that she’d written poems about suicide and sadness in the past because it is a genre that she likes, comparing herself to Stephen King who “writes weird stuff all the time. That doesn’t mean he’s going to do it or act it out.”
The student reportedly neither turned in the poem to school employees nor distributed it to others in the school community. Rather, a teacher came across the poem in a notebook and turned it into the school’s principal. According to one account, the school—which is a non-residential high school located on Treasure Island, a former US Navel base in the middle of the San Francisco Bay—and the San Francisco Unified School District are reportedly considering expelling the student. The school has a zero tolerance approach to violence or threats of violence.
A recent Illinois Attorney General opinion addressed an interesting question: Can a public entity delete comments by community members from its Facebook page? Although the public entity at issue was a municipality, the opinion raises a number of interesting issues for public schools. The Attorney General addressed the question under the Illinois Open Meetings Act (the OMA), and found no violation under that specific law. But, if a court were to address the issue under the First Amendment of the federal Constitution, it is less clear that the public body would prevail. Notably, the First Amendment issue – discussed in part 3 below – is relevant even for school districts outside of Illinois. The decision is a warning to public entities, including school districts, across the country to carefully consider the basis of a decision to delete a user comment from a social networking page.
The opinion centered around criticism by a community member about a village’s Facebook page. An article in the Daily Herald provides the back story. The page came under scrutiny after the village trustee, who maintains the village’s Facebook page, deleted some items and comments from the page. As with most Facebook “fan” pages, users are allowed to comment on the “wall” of the page, but those comments can be deleted unilaterally by the person who maintains the page. The trustee justified the deletions by pointing to an uptick in negative comments and to complaints by other community members that they were reluctant to subscribe to the Facebook page because of negative comments.
The community member that brought the action, a former part-time police officer of the village, was one of the individuals whose comments were deleted. He complained on his blog about his comments being removed. In one post, he said that he would “be exploring remedies for [the village’s] action of censorship on a ‘supposed’ public site.” The Attorney General request for review appears to have been the individual’s first efforts at finding such a remedy.
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.
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…)
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 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 Journal, the 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.
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…)