The First Amendment The Giant Elephant in the (School) Room

1. The First Amendment The Giant Elephant in the (School) Room Kelley Baker, Karen Haase Bobby Truhe (402) 434-3000 kbaker@hslegalfirm.com khaase@hslegalfirm.com btruhe@hslegalfirm.com H & S School Law @KarenHaase @btruehe

3. Religion Clause • Establishment Clause: “Congress shall make no law respecting an establishment of religion…” • Free Exercise Clause: “… or prohibiting the free exercise thereof …”

4. The Lemon Test • Purpose Prong: the public school’s action must have a primary secular purpose • Effect Prong: the primary or principal effect of the public school action must be one that neither advances nor inhibits religion. • Entanglement Prong: the public school action must not result in an excessive entanglement of government • with religion.

5. There is no “when in doubt” choice • Make the ACLU Happy: Exclude Religious Music • Make the Ministerial Alliance Happy: Focus on Religious Music • Keep you job: Defer to the Principal, Superintendent or School Board

6. Students’ 1st Amend. Rights

7. T-shirts, Bands, and More

8. Tinker v. Des Moines Comm Schs(US 1969) • Students decided to wear black armbands to protest the Vietnam War • Principals adopted a policy banning the wearing of armbands to school. • Students suspended • ACLU Sued

9. Tinker v. Des Moines CommSchs(US 1969) • Supreme Court: • Students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” • School would have to prove "facts which reasonably may have led school authorities to forecast substantial disruption of or material interference with school activities"

10. Tinker Standard “In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Certainly where there is no finding and no showing that engaging in the forbidden conduct would materially and substantially interfere with the requirements of appropriate discipline in the operation of the school, the prohibition cannot be sustained.”

11. “I ♥ Boobies” Bracelets • B.H. v. Easton Area • Free expression, not obscene or vulgar • No material and substantial disruption • J.A. v. Fort Wayne County • J.A.’s mom was breast cancer survivor • Frayser: “lewd, vulgar, obscene or plainly offensive” • Tinker: disruption • “[F]ederal courts…side with admins.”

12. “I ♥ Boobies” Bracelets • Court: defer to administrators who know when speech is lewd, vulgar, obscene, or offensive based on the students involved • Seniors vs. 7th graders • Still look for material/substantial disruption

13. Holloman v. Harland (11) • Tinker hypo: buttons which caused a disruption at one school do not justify banning them at another school • What if you’ve had a history of disruption involving a particular type of speech at your school?

14. Kuhr v. Millard P.S. (NE) • Julius Robinson murder • History of gang violence in MPS • Training • Students wore t-shirts and bands • In Sept. teacher noticed shirts • School suspended students for violating policy against wearing gang-related clothes

15. Kuhr v. Millard P.S. (NE) • Students sued under 1st Amendment • Court: “Schools may preemptively discipline students . . . if they have information which would reasonably lead them to forecast that the speech will cause disruption.”

16. Kuhr v. Millard P.S. (NE) • Court: Tinker “reasonably forecast” • Specific and significant fear • Of disruption at school • More than remote apprehension or disturbance • School must point to “well-founded” expectation of disruption

17. Kuhr v. Millard P.S. (NE) • Court will look at: • What officials knew—facts, training, and application • Basis of the knowledge • Severity of threat • Likelihood of actualdisruption

18. Interesting Cases • Dariano: May 5, HS students wear American flag shirts with history of racial tension—school won • Zamecnik: “Be Happy, Not Gay” shirt—student won • Defoe: Confederate flag shirts considered “racially hostile speech”—school won

19. Skarin v. Woodbine Cmty Sch • High School Choir sang Lord’s Prayer at graduation • Ct: “Whether recited or sung prayer by its very nature is undeniably a religious exercise” • Primary effect was to advance the Christian religion

20. Nurre v. Whitehead • Wind ensemble selected to play at graduation • Students voted to play “Ave Maria” • Vote was unanimous • Superintendent vetoed • Member of wind ensemble sued • Court: • Music is speech • School censored • Censorship was permissible here (Lemon)

21. S.D. v. St. Johns Co. Sch. • 3rd graders assigned to sing “In God We Still Trust” at year-end assembly • Song played in class and practiced • Students told if they objected they didn’t have to sing, but wouldn’t be able to attend assembly • Parents sued • Court: “Song fails to pass constitutional muster under any of established tests”

22. S.D. v. St. Johns Co. Sch. • School argued it was just like Doe v. Duncanville Indep. Sch. Dist. (5th Cir. 1995) • Court: No • Age of students • 3rd grade music not elective • Choirs vs. classes • Quality of music

23. Bullying and Cyberbullying

24. J.S. v. Blue Mountain Sch. Dist. • Middle School student made a fake MySpace profile for principal • Included photo from school website • Initially public; then limited • Students could only access off campus • Student suspended for 10 days; parents sued

25. Layshock v. Hermitage Sch. Dist • High School Student made fake MySpace profile for principal • Included photo from school website • Other students created similar and more offensive profiles • Students only accessed it off campus • Student suspended for 10 days; placed in alternate school, banned from extracurriculars and commencement

26. J.S. and Layshock Inconsistent • Third Circuit granted en banc rehearing • Oral Argument June 3, 2010 • Decision issued June 13, 2011 • The Bottom Line? Schools lost both cases

27. J.S. and Layshock • Key legal points • School maynot punish off-campus speech because it is vulgar, inappropriate or even criminal • School may only punish off-campus speech that is substantially disruptive

28. What About the Staff? • “We recognize that vulgar and offensive speech such as that employed in this case – even made in jest – could damage the careers of teachers and administrators and we conclude only that the punitive action taken by the school district violated the First Amendment free speech rights of JS.” • Translation: “We don’t care”

29. When Students Are Victimized

30. T.K. v. New York Dept’t of Ed. • LD student was bullied by peers • Court: • No First Amendment protection for bullies • “…merely requires schools do what the Department of Education has told them to do for years.”

31. J.C. v. Beverly Hills SchDist (CA) • 8th grade girls talking smack about a peer; uploaded it to YouTube • Principal suspended the student who uploaded • Court: no disruption to school, no nexus to education, no basis for punishment

32. Legal Test: • If on campus: • Is speech lewd, vulgar, socially inappropriate • Does speech cause a “material and substantial disruption”? • Is it a matter of public concern? • If off campus • Does speech cause a material and substantial disruption?

33. K.A. v. Pocono Mtn. Sch. Dist. • Elementary student brought flyer inviting peers to Christmas party sponsored by her church. • Student had to turn the flyer into the principal for approval. He had the superintendent look at it, because he claimed it was religious in nature. • The superintendent rejected the request based on district policy

34. K.A. v. Pocono Mtn. Sch. Dist. • Policy: "Any requests from civic organizations or special interest groups...must be examined to insure that such activities promote student interests primarily, rather than the special interests of any particular group“ • Prohibits speech that "seek(s) to establish the supremacy of a particular religious denomination, sect or point of view."

35. K.A. v. Pocono Mtn. Sch. Dist. • Plaintiff Student: • flyer was prohibited "solely because of the religious nature of the message" • school usually allows flyers and other invitations to be distributed • Defendant District: • District regulating “commercial speech” • K.A. treated like any other student

36. K.A. v. Pocono Mtn. Sch. Dist. • District Court (Decision 10/20/11) • Forum Analysis vs. Student Expression • Case governed by Tinker • School’s fears re third party • Complete ban on any type of “solicitation” also violates First Amend.

37. Morgan v. Swanson (5th Cir. 2011) • Students suing Plano, TX schools • Alleged First Amendment Violations • No Christmas parties allowed • References to Christian holidays banned • Cards to solders censored • Goodie bags searched and confiscated • Tickets to church play banned • Birthday treats censored • After-school distribution also prohibited

38. Morgan v. Swanson (5th Cir. 2011) • School’s Defense • Constitution does not prohibit viewpoint discrimination against religious speech in elementary schools • Qualified immunity • First Amendment is not implicated by restrictions on student-to-student distribution of non-curricular materials by elementary school students to their classmates

39. Morgan v. Swanson (5th Cir. 2011) • District Court: no qualified immunity • 5th Circuit: no qualified immunity • No conclusion about truth of allegations • No conclusion about disruption • Only deciding whether elementary school students have a First Amendment right to be free from religious-viewpoint discrimination while at school. • En banc rehearing granted, oral arguments held May 23, 2011

40. Morgan v. Swanson (5th Cir. 2011) • En banc Court: “Answering this question requires recourse to a complicated body of law that seeks, often clumsily, to balance a number of competing First Amendment imperatives. This body of law failed to place the constitutionality of the defendants' conduct beyond debate, so they are entitled to qualified immunity.” • Court still held that principals' actions were unconstitutional.

41. Morgan v. Swanson (5th Cir. 2011) • Holdings of the en banc Court: • Tinker applies to elementary students • Schools may be allowed to discriminate based on viewpoint when materials distributed in the classroom • Still unclear whether schools can use entanglement concerns to justify discrimination • Role of parents relevant

42. Observation of Holidays

43. Stratechuk v. Bd. of Ed. • Parents objected to • “Christmas Sing Along • December Concerts • Board adopted policy prohibiting religious music • Parent sued • Court: • First Amendment does not compel school to include religious holiday music • No record of hostility toward religion

44. Dominguez v. Grossmont Union • Student had conversion experience over Christmas break • Teacher directed him to stop bringing Bible to school and evangelizing • Seized Bible when he did not comply • Told student he was violating “separation of church and state:” • Student suspended for 2 days

45. Dominguez v. GrossmontUnion Sch. Dist. • Case filed March 24, 2011 • Answer filed April 26, 2011 • Case settled and dismissed May 6, 2011

46. Teachers’ 1st Amend. Rights

47. Pickering v. Bd of Ed(US 1968) • Teacher wrote letter to the editor, criticizing the BOE’s allocation of funds between academics and athletics. • BOE terminated the teacher, saying that the letter contained false statements that impugned the integrity of the school system. • The teacher sued, claiming BOE violated First Amendment right to free expression

48. Pickering v. Bd of Ed. • Court: public schools cannot terminate a teacher for speaking out as a citizen on matters of public concern • Key Quote: “The problem in any case is to arrive at a balance between the interests of the [public employee], as citizen, in commenting upon matters of  public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” 

49. Garcetti v. Ceballos (US 2006) • Deputy district attorney spoke about an allegedly defective search warrant • Disciplined by employer, sued claiming violation of First Amendment • Court: if employees are engaged in speech “pursuant to their official duties” at work, they are not speaking as “citizens” and thus, enjoy no First Amendment protection for their speech.

50. Richerson v. Beckon(9th Cir. 2009) • Tara Richerson was a mentor for beginning teachers • On her personal blog, she described one administrator as “a smug know-it-all creep” who has “a reputation of crapping on secretaries….” • Demoted by school, sued claiming violation of First Amendment