Advanced School Law

1. Advanced School Law CBA 290 Michigan Association of School Boards Brad Banasik

2. Overview • Church and State • Students’ Constitutional Rights • Selected Sections from the Revised School Code • Michigan Teachers’ Tenure Act

3. Establishment Clause The U.S. Supreme Court has long held that the Establishment Clause prohibits the government from: • designating an official religion, • supporting a specific denomination or religion, or • promoting religious activity.

4. Sour on Lemon “Like some ghoul in a late-night horror movie that sits up in its grave and shuffles abroad after being repeatedly killed and buried, Lemon stalks our establishment clause jurisprudence once again, frightening little children and school attorneys.” Justice Antonin Scalia Lamb’s Chapel v Center Moriches Sch Dist

5. Take Note! The U.S. Supreme Court has noted that there is a “crucial difference between the state endorsing religious speech, which the Establishment Clause forbids, and private religious speech which the Free Speech and Free Exercise Clauses Protect.” Board of Education of Westside Community School v Mergens, 496 US 226 (1990).

6. Sante Fe ISD v Doe, 530 US 290 (2000) • U.S. Supreme Court held that a policy permitting student-led “invocations” before football games violates the Establishment Clause. • Messages were delivered over the school’s public address system by a speaker representing the student body, under the supervision of school faculty and pursuant to a policy that encouraged public prayer.

7. “Biblical History of the Middle East” • Lacked a secular purpose • Had the primary effect of advancing religion • Led to excessive government entanglement with religion • Unconstitutionally endorsed fundamental Christianity • Subjected students to subtle coercive pressure to attend Bible classes

8. Encouragement of Education “Religion, morality and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.”

9. First Amendment • “First Amendment rights…are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional right to freedom of speech or expression at the schoolhouse gate” Tinker v Des Moines Independent School District

10. Content Restrictions • Open Forum: A public place traditionally used as a place of free public discourse. • Limited Forum: Generally a public area that has been made available for speech consistent with the purpose of the forum. • Closed Forum: A place not open for an exchange of ideas; the purpose of the place would be lost if the free exchange of ideas were allowed.

11. Off Campus Websites • Mahaffey v Aldrich • Beussink v Woodland R-IV • Emmett v Kent School District No. 415 • J.S. v Bethlehem Area School District

12. Mahaffey v Aldrich236 F Supp 2d 779 (ED Mich 2002) • A student was suspended for publishing objectionable statements on an Internet website. • The website listed “people I wish would die,” “people that are cool,” “movies that rock,” “music I hate,” and “music that is cool.” • Included “Satan’s Mission for You this Week”: “Stab someone for no reason then set them on fire and throw them off a cliff, watch them suffer and with their last breath, just before every-thing goes black, spit on their face.”

13. Mahaffey v AldrichThe Court ruled… • Because the student’s statements on the website did not constitute true threats, the statements were protected by the 1st Amendment. • Because the school did not prove that the website was created on school property or that it substantially interfered with the work of the school or impinged upon the rights of other students, the student’s 1st Amendment rights were violated.

14. Mahaffey v AldrichApplying the Ruling • Students may be disciplined for off-campus conduct only when it is established that the conduct materially and substantially interferes with the educational process. • To constitute a “true threat,” a statement must be communicated directly to someone and it must be interpreted as a serious expression of an intent to inflict bodily harm upon or take the life of the target.

15. Schools subject to the EAA should assure… • Meetings are voluntary & student initiated • No school sponsorship of the meetings • Agents of the school are present only in a non-participatory capacity • Meetings do not present a material & substantial disruption to the school • Groups are not excluded due to content of expression

17. Blau v Ft Thomas Pub School Dist401 F3d 381 (6th Cir. 2005) • A sixth grader opposed the dress code at her middle school. • Prohibited jeans; clothing that is too long, flip-flop sandals, or high platform shoes; shirts that are sleeveless, form-fitting, or not in a solid color; and bottoms made with stretch knits, flannel, or fleece such as sweatpants, jogging pants or any type of athletic clothing. • The student alleged that the dress code violated her 1st Amendment right to freedom of expression.

18. Blau v Ft Thomas Pub School DistThe Court ruled… • That in order to sustain an expressive- conduct claim under the 1st Amendment, a claimant must show that the conduct conveys a particularized message and the likelihood is great that the message will be understood by those who view it. • That (1) the dress code was viewpoint and content neutral and it was not being used to suppress student expression; (2) it served important governmental interests; and (3) it allowed the students other avenues for expressing themselves at school.

19. Blau v Ft Thomas Pub School DistApplying the Ruling • School districts are on more stable ground with a dress code that is focused on student clothing generally rather than clothing with a particular viewpoint or message. • A shirt banned for showing a student’s midriff under a neutrally written and enforced dress code does not spark the tricky analysis of whether a viewpoint is being suppressed, or whether the shirt substantially and materially disrupts the school’s learning environment.

20. OUT Apparel with slogans, writing or pictures Baggy clothes Hooded tops Sweat suits, jogging attire, fleece, sleepwear Any hats or headgear (except religious ones) Sunglasses OUT Team jerseys (except those touting school) Tank tops, halter tops, see-through blouses Gauchos, cargo pants, tights Excessive jewelry Piercings, gold-plated jewelry, rope chains Mismatching socks What Not to Wear: A School District’s Dress Code

21. IN Clean clothes without holes Sweat shirts, collared shirts, crew necks, T- shirts, turtlenecks Henleys, sweaters School team gear Knee-length skirts (no slit) IN Capri pants, skorts and knee-length culottes Enclosed heel-to-toe shoes and boots Pants worn at the waist that don't exceed the tops of shoes What Not to Wear:A School District’s Dress Code

22. Definition: “regularly and continuously work under contract.” • To work at school on a more than an intermittent or sporadic basis as an owner or employee of an entity that has a contract with a school district to provide food, custodial, transportation, counseling, or administrative services, or to provide instructional services to pupils or related and auxiliary services to special education pupils. • To work at school on a more than an intermittent or sporadic basis as an individual under a contract with a school district to provide the services listed above.

23. Student Employees • General education students (19 years old and younger) and special education students (26 years old and younger) are exempt from the formal records check requirements. • Must perform a criminal history check using the department of state police’s internet criminal history access tool (ICHAT). • If the results of the ICHAT search reveal a listed offense or felony, the general requirements relating to regular employees apply.

24. Conditional Hires • During school year or within 30 days before the beginning of school. • Request check before conditionally hiring. • Statement identifying crimes. • Agreeing to void contract if statement is inconsistent. • CBA would not protect employee.

25. Criminal History Checks for Current Employees • If the results received by the district disclose that an individual has been convicted of a listed sex offense under the Sex Offenders Registration Act, the board shall not employ the individual in any capacity or allow the individual to regularly and continuously work under contract in any of the district’s schools.

26. Criminal History Checks for Current Employees • If the results received by the district disclose that an individual has been convicted of a felony other than a listed sex offense under the Sex Offenders Registration Act, the board shall not employ the individual in any capacity or allow the individual to regularly and continuously work under contract in any of the district’s schools UNLESS the district’s superintendent and board specifically approve the employment or work assignment in writing.

27. “Misconduct” • Willful or wanton disregard of an employer’s interest. • Deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee. • Carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design. • To show an intentional and substantial disregard of the employer’s interest or of the employee’s duties and obligations to his employer.

28. Nondisclosure Agreement • Section 1230b prohibits a board or school official from entering into an agreement “that has the effect of suppressing unprofessional conduct from personnel records.” • Void and unenforceable. • Mino v Clio School District, 255 Mich App 60 (2003) • Does not restrict expungement about alleged unprofessional conduct that has not been substantiated.

29. Did the Legislature intend the exceptions to be mandatory? “…shall expel the pupil from the school district permanently, subject to possible reinstatement under subsection (5), unless the pupil establishes in a clear and convincing manner at least 1 of the following [exceptions]:” PA 328 of 1994 (original language)

30. A change of heart? “…subject to possible reinstatement under subsection (5). However, a school board is not required to expel a pupil for possessing a weapon if the pupil establishes in a clear and convincing manner at least 1 of the following [exceptions]: PA 250 of 1995 (amended language)

31. Seal v Morgan229 F3d 567 (6th Cir. 2000) • A student was expelled for having a knife in his glove compartment. • The student was unaware of the knife because his friend placed the knife in the glove box without his knowledge. • The student claimed that his expulsion violated his rights under the Equal Protection and Due Process clauses of the 14th Amendment.

32. Seal v. MorganThe Court ruled… • Expelling a student for unknown possession of a knife was not rationally related to any legitimate state interest. • Interpretation- Expelling a student under such circumstances is irrational because the student could not use the weapon to injure others if he did not know he possessed it. • Consequently, the expulsion violated the student’s substantive due process rights.

33. Seal v. MorganApplying the Ruling • Michigan’s Weapon Free School Zone law includes an exception for when a weapon is not knowingly possessed by a student. • If a student establishes this exception in a clear and convincing manner, the student should not be recommended for permanent expulsion.

34. “Firearm”- Gun Free Schools Act 1994 In defining “firearm” the federal Gun-Free Schools Act of 1994 refers to another section of federal law which defines “firearm” as: • Any weapon (including a starter gun) which will or is designed or may readily be converted to expel a projectile by the action of an explosive; • The frame or receiver of any such weapon; • Any firearm muffler or firearm silencer; or • Any destructive device.

35. Davis v Hillsdale Community School District 226 Mich App 375 (1997) • In this case, the school adopted a definition of “dangerous weapon” that closely followed the definition in the law, but the district’s definition also included the following: “For the purposes of application and enforcement of this policy, a BB gun is considered to be a ‘firearm. • The Court of Appeals sided with the school district, finding that a school board has the power to mandate a permanent expulsion in its weapons policy for possession of a BB gun on school property.

36. Verbal Assault Law Unconstitutional • Smith v Mount Pleasant Public Schools • Policy defined verbal assaults to include “threatening the well-being…or dignity of persons on school property. • A federal district court judge ruled that the verbal assault law unlawfully prohibits students’ speech that is protected by the First Amendment. • Rely on parameters set by the U.S. Supreme Court.

37. Position Requires No Certification • General Administrator • Attendance Worker • Social Worker • School Psychologist • Business Manager • Paraprofessional • Detention Room Monitor

38. Full Classroom Responsibility • Prepared or presented lessons • Assessed student mastery • Determined student grades • Participated in parent teacher conferences or otherwise initiated communications with parents • Participated in IEPC meetings • Assumed full responsibility for the disciplining of students

39. The Individualized Development Plan • Van Gessel v Lakewood Public Schools, 220 Mich App 37 (1996)- First year probationary teachers are not entitled to IDPs • Cummings v Center Line Public Schools (98-18)-Probationary teacher must be provided “a meaningful opportunity to express view” regarding the content of the IDP.

40. Steeby v Highland Park School District, 56 Mich App 395 (1974) “[T]he board of education can eliminate teaching positions because of economic factors….Implicit in [the Tenure Act] is the conclusion that school districts are excused from offering a tenured teacher a contract of employment when it is necessary to reduce personnel.”

41. Credit to the Following Contributors: • National School Boards Association • Barbara Ruga, Clark Hill, PLC