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Casebook, pp. 3-12 Supplemental Materials, pp. 1-4
 * I.  **** Introduction: Schools, Democratic Values and the Role of the Courts **

Casebook, pp13-34; 702-705 Supplemental Materials, pp. 5-10
 * II.  ** ** The Right to Education **

Supplemental Materials, pp. 11-27 Casebook, pp. 36-47
 * III.  ** ** Compulsory Education and the Pierce Compromise **

Supplemental Materials, pp. 27-80.  Mosie KZ
 * IV.  ** ** State Regulation of Private Schools and Home Instruction **

**Overview** 1925 Pierce Compromise granting private schools right to exist; over the years, suits to clarify relationship States have not availed themselves of the full extent of their power to regulate


 * Farrington vs. Tokushige** (1927) – challenged enactment against teaching in languages other than English or Hawaiian – motion for temporary injunction A. foreign language schooling offered as supplement to regular schooling **Rules**: file sworn list of pupils, teachers must have permit, must spread ideals of democracy, know how to read and write in English, must promote Americanism must sign a pledge to this effect can not be conducted in the morning before school unless separate permission granted only one hour per day, six days a week max students have to have finished first grade (and so on) before starting all languages taught as a function of English text books prescribed department can take over not for profit language ONLY, not ideas/culture

J apanese parents were seeking a temporary injunction against the federal gov't (because hawaii was still a **territory**, not a state, and so governed by the federal gov't...this is why, towards the end, the Court points out that previous precedent relied on the due process clause of the 14th Amendment and they were relying on the due process clause of the 5th amendment: the **5th** amendment restricts the **feds** while the __14th__ restricts the __states__), to prevent the government from enforcing the "School Act" (i.e., forcing parents to pay fees, regulating how long you can go, what can be taught, who can teach, and most importantly, fining people that violate its strictures).  The Court agrees, upholding the injunction issued by the lower courts, basically on the reasoning that the parents have a right to direct the education of their children without unreasonable restrictions and here, the government offers "no adequate reason" for the restrictions imposed. The Court points out one possible reason - "the grave problems incident to the large alien population of the Hawaiian Islands" (i.e., good Ol American racism, just like with the Muslim schools today) and offers that it deserves weight, but its apparently not enough to warrant the law.

Other points: (1) the due process clause is engaged because the law would deprive the parents/students/teachers of property (i.e., the money invested, teacher's jobs, possibly the right to preferred instruction but that's pretty ephemeral as rights go); (2) the law was "severable" (i.e., it had written in that if any portion was deemed unconstitutional, it could be struck down while allowing the other provisions to remain...i.e., maybe the $25/day fine is unconstitutional but it's ok to review textbooks) but the Court called bullshit on that and ignored that provision. Plaintiffs said will be too scared to teach, plus stories are too intertwined with language teaching appeals court ruling: Japanese families' suit for injunction against govt interference affirmed

Motivated by xenophobia post WWI. Why did the Supreme Court have to take this case?

What law justified the ruling? Ohio's compulsory attendance laws infringe on free exercise of religion religious observers don't have to prove sincerity; fact that are willing to take it to court and risk being incriminated proves sincerity Born-agains adhere to life apart from this world; youth is a key time for molding people many objections to 'minimum standards' – no time for Bible study, public authorities control school, humanism philosophy, society's values may change but God's do not finding - __does__ fall under Wisonsin vs. Yoder idea that an innocent regulation may in fact have non-neutral consequences – too much govt intervention private school shouldn't be held to “all activities” equivalent standard – would collapse public/private distinction “be not conformed to this world” lower courts ignored pervasiveness of regulation → no need to regiment ALL standards ruling: appellants / defendants discharged, allowed to pursue their business of educating students in the matter they saw fittest
 * State of Ohio vs. Whisner** (1976) – born agains wanted to be treated like Amish (p 32)

Notes of Whisner: (1) What if the suit had been brought by a non-religious private school? (2) If Ohio's standards are too pervasive, what standards would be ok? Argument: would effectively eradicate public/private distinction – found in favor of the appellants/defendants - Pierce allows for assertion of the power “no question concerning. . .”

Multi-part ruling: affirmed, reversed, remanded in parts  State regulations found to be reasonable – different from other cases in this regard
 * Fellowship Baptist Church vs. Robert T. Benton** – plaintiffs wanted no regulation or required teacher certification
 * 1) reporting on students an infringement (“Headship of Christ”) – court disagreed; parents couldn't be trusted, plus what's the problem with reporting?
 * 2) vagueness of equivalent instruction problematic
 * 3) Amish exception unique, not applicable
 * 4) Attorneys fees should be paid to schools since rejected by numerous courts
 * 5) Certification of teachers in humanism not a violation bc about tolerance; plus they allow licensure in other professions
 * 6) <span style="font-family: Times,serif;">Yoder case more extreme

Regulation of Private School (p 50) Report attendance Certification to teach disabled

<span style="font-family: Times,serif;">Juvenile and Domestic Court of New Jersey Defendant (parents) prosecuted for not providing adequate education – (1) no grades, (2) kids getting info from other students and reporting to mom, (3) outdated textbooks No schedule, no form, no method, no health habits, group activity Gets into the nuances of the word //equivalent// : of equal worth not necessarily equal content yet court objected to many aspects lacking in their alternative ed that they would get in school (e.g. Arbor day and the memorization of poems). Homeschool families are expected to present evidence that they're educating their kids (p 77); if there is evidence then the State has to prove the contrary (negligence)
 * [CFE case “sound basic education is a right” then could a private schooled student object**
 * to overly lax standards? Should “substantial equivalence” have legal teeth? Do vouchers add a wrinkle to this? Can students demand educational standard?]**
 * 1) <span style="font-family: Times,serif;">The New York Times on more homeschooled
 * 2) <span style="font-family: Times,serif;">Va plan to Ease Standards for Homeschooling
 * 3) <span style="font-family: Times,serif;">Stephens v. Bongart


 * Morris County, NJ vs. Massa<span style="font-family: arial,helvetica,sans-serif; font-weight: normal;"> - **Sole issue is issue of equivalency – is she being educated equivalently? Watch daughter develop, avoid time wasted in high schools - State objected to lack of certification, lack of teaching experience, lack of specialization in subjects, lack of socialization good scores, grades, teacher said fine, high performing in everything but math bc what Massa was accused of (disorderly persons) was a quasi-criminal offense, the burden of proof is beyond a reasonable doubt again, what does equivalency mean

Casebook, pp. 731-777 Supplemental Materials, pp. 81- 89
 * V. <span style="font-family: 'Times New Roman'; font-size-adjust: none; font-size: 7pt; font-stretch: normal; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal;"> ** ** Prayer and Religious Rituals in the Schools **

Matt Peal

The Religion Clauses and Public Education

Bible reading and prayer - Abington Township vs. Schempp o Schools were opening school each day with a reading of the bible. § PA law required the reading of at least 10 verses from the bible before the start of the day § Students could be excused with a note from their parent § The parents believed that with their children being excused they might face judgment from their friends. § Also contrary to personal beliefs and teachings § They argued that the first amendment protected their practice of religion o They were ruled unconstitutional under the establishment clause as applied to the states through the fourteenth amendment § Wall of separation § It is possible to study the bible in a historical and secular way, but this wasn’t the case o Majority opinion thought it was neutral on religion; dissent disagreed - Wallace v Jaffree o 3 different statutes questioned § 1 – an authorized 1 minute period of silence in all Alabama public schools for meditation (1978) § 2 – an authorized 1 minute period of silence in all Alabama schools for meditation or voluntary prayer (1981) § 3 – authorization for teachers to lead willing students in prescribed prayer to “almighty God…” o the district court upheld #1, but struck down 2 and 3 because Alabama was encouraging religious activity § the district held that they were constitutional however because Alabama had the right to establish a religion if it chooses o the father in the case thought hi children were being indoctrinated and shunned if they didn’t participate. o The supreme court didn’t even really talk about statute 3; it was ruled unconstitutional o The court said that the intent behind statute 2 was to try and institute prayer in school § They also said the statute was enacted with no purpose § Part 2 mirrors 1 so much so that it could only be interpreted as promoting religion § Part 1 was not questioned General Restraints - Lee v Weisman o The question was whether including clerical members who offer prayers as part of an official school graduations violates the first amendment o The school tried to make the cleric knowledgeable of how to make an inclusive prayer o The principle advised the rabbi that the prayer should be nonsectarian o District court said it violated the establishment clause § Lemon v Kurtzman set the standard for the establishment clause · To satisfy the establishment clause a governmental practice must o Reflect a clearly secular purpose o Have a primary effect that neither hinders nor advance religion o Avoid excessive entanglement with religion o Ruled the practice unconstitutional – people were almost obliged to attend o State sponsored event with religion exercise in public school - Sante Fe v Doe o The school allowed a led prayer before football games o At first it was led by the school chaplain, and then by any member who wanted o Court of appeals found the policy invalid o There were actually a number of issues at stake o Seen as a govt endorsement of delivery of prayer o Ultimately decided that the football game prayer violated the establishment clause Released Time for Religious Instruction - MCollum v BOE o A group of jewish, catholic, and protestant faiths came together and got approval for religious classes in public school for students in grade 4 to 9 o The parents of the students had signed a consent card o The classes took place in the school o The plaintiff challenged the usage of school property and close cooperation of the school to provide religious teachings o Court said this could not happen – use of tax supported property

- Zorach v Clauson o This is where a school allowed students with parental permission to leave school and attend religious instruction; students who did not wish to go stayed at school o They argued that this program did not involve religious instruction in school or the spending of public funds o Those against argued like in McCollum case: the weight and influence of the school is behind religious instruction o The court said that this rule in NY did not violate the constitution o Further if it stopped this instance it would open up the possibility to other religions leaving school for observance o The school is simply abiding by the request of the parents to release their children Religious Objections to Public School Acivities - Smith v Board of school comm. – Mobile County o Books were ok Casebook, pp. 798-803 808**-**826 780-795 846-851
 * VI. State Funding of Religious Schools **

Tony's Notes

Establishment Clause of First Amendment - state/fed can’t set up church - Can’t pass laws that aid one religion, or preference of one religion over other, etc - Can’t force folks into/away from a religion - Can’t punish for going/not going to a religion - Can’t use tax to support any religious thing (schools) - Can’t openly/secretly participate in affairs of church - Wall of separation b/t church and state - Amendment requires state to be neutral Lemon v. Kurtzman (Justice Burger) 3-part test - 1) Statute must have a secular legislative purpose - 2) Must have principal effects which neither advance nor inhibit religion - 3) Must not foster an excessive gov’t entanglement w/ religion o Monitoring o Political dissention

Emerson v. Board of Education - Law allowed $$$ reimbursed to parents who had to pay to transport their kids to school. Private school families would qualify - Was this violation of Establishment Clause? - No, state wasn’t supporting the schools, but rather help parents get their kids to the school of their choice - Similar to paying to have roads fixed and traffic officers conducting safety etc. Lemon v. Kurtzman - In PA, law provided financial support to salaries, textbooks, and materials for secular subjects in non-public (religious) schools - In RI, law provided direct supplemental salary to teachers in non-public school. - Were these laws violation of Establishment clause? (Funds made available to church related educational institutions) - BURGER MADE 3-part TEST - Yes, laws were in violation. Subsidization using state funds was the state giving $$/support to church (violation) and also unhealthy political relationship which would be seen as entanglement w/ religion. - Would be messy; spill over into community, etc so to avoid it must say that it isn’t allowed – hence violation of establishment clause of first amendment. Committee for Public Education v. Nyquist - NY created aid program (Chapter 414) for nonpublic schools. Section 1 – provided grant for maintenance/repair for schools serving low-income, Section 2 – provided tuition reimbursement for low-income parents, Section 3-5 – provided tax relief for parents who didn’t qualify for tuition reimbursement. - Brought up in District court, ruled section ½ violated establishment clause but not 3-5. - Were 1-5 violation of establishment clause? - Yes, court affirmed previous decision on 1 and 2 and reversed decision on 3-5. - Yes, all sections violated Establishment clause. - Said the purpose was clearly secular in terms of trying to do what’s good for those students. BUT, violated clause by it didn’t limited the use of grants for secular purposes (the second rule of Burger thingy). Most schools catholic, so it was pretty much gov’t giving $$ str8 to religious schools, a no-no. - Section 2 violated because didn’t guaranteed separation secular and religious schools. Yeah, money going to parents and not schools directly, but giving $$ would enhance chance to chose b/t public and nonpublic – advancing religion which is a no-no. - Section 3-5 reversed and made unconstitutional for same reason as above. It wouldn’t be neutral.

Muller v. Allen - Minnesota law allowed deduction from state taxes expenses for tuition, text, transportation for childs education (for all parent and all types of schooling) - Did this violate Establishment Clause? - No, it passed all 3-parts.1) had secular purpose and 2) did not have an aim towards non-public/religious schools and 3) didn’t entangle state into religion. - Biggest thing was that it was something that all parents could use. (didn’t put any approval/disproval on religious schools) Agostini v. Felton - Brought up by Parochial school board/student parents as challenge to district court ruling which prohibited pub teachers from teaching in parochial schools (violated establishment clause). Appeal was denied, but then brought to supreme court - Was establishment clause violated when pub school teachers teach in parochial schools? - NO, court overrule old agostini case. No evidence that former presumption of pub teachers going parochial becoming state-sponsored religious teachers. (wasn’t as if parochial schools pulled pub teachers to teach their ish, all was fine). So was seperation of state funds and religion. - Big thing was that court ruled that only policies that had excessive conflict b/t church and state would be seen as violation. (thereby not all entanglements are positive/negative – some can be neutral). Board of Education of Kiryas Joel Village School District v. Grumet - State made a school district for Samtar (extreme Judaism) - Was this violation of Establishment Clause? - Yes, failed to remained neutral in terms of respect to religion. Made a school zone which excluded those of different belief. - Clause created so that gov’t can’t show preference of a religion over another or over non-religion in general Zelman v. Simmons-Harris - Ohio Pilot Program which saw failing of schools in Cleveland, so gave vouchers to families to chose any school for their child, public or private, religious or non religious. Parent choice. Majority of private schools were religious. Ohio taxpayers sought to end saying it violated Establishment Clause. - Does program violate Establishment Clause? - No it is not. Court says that program is for secular legislative purpose of betting the whole terrible educational situation and that only reaches religious schools via deliberate choice of parents, not from the gov’t. States that state is neutral, and is only looking at financial need of individuals and residency of families. - It is a program of true choice, and they can chose to put vouchers wherever and that the gov’t isn’t showing any pos/neg effect towards religious schools.

798-803 Financing Private Schools for Public Benefit
 * Annie's notes:**
 * 1) **Textbooks, Transportation and Other Special Services**


 * Everson v. Board of Education 1947**

New Jersey statute authorizes its local school districts to make rules and contracts for the transportation of children to an from schools. Part of this money was for the payment of transportation of some children in the community to Catholic parochial schools. The appellant as a taxpayer challenged the right of the Board to reimburse parents of parochial school students.

1st Due process of 14th- taking tax payer's money and giving it to others for private use.- The New Jersey legislature has decided that a public purpose will be served by using tax-raised fundts to pay the bus fares of all school children, including those who attend parochial schools.

The establishment of religion clause of the First Amendment means at least this: Neither a state nor a Federal Government can set up a church. Neither can it pass laws which aid one religion, aid all religions, or prefer one religion over another. Etc. the clause against establishment of religion by law was intended o erect “a wall of separation between Church and State.”

We cannot strike the state statute down if it is within the State's constitutional power even though it approaches the verge of that power... On the other hand, New Jersey cannot hamper its citizens in the free exercise of their own religion. In cannot exclude individual members of faith, because of their faith or lack of it from receiving the benefits of public welfare legislation. Making it difficult for religious schools to operate is not the purpose of the First Amendment. That amendment requires the state to be neutral, not adversary. State power is no more to e used so as to handicap religions than it is to favor them. The parochial schools appear to meet New Jersey state requirements.

New Jersey has not breached the separation of church and state- affirmed- for the Board of Ed

(an opposing line of judicial theory has also arisen


 * 1) **Payment for Personnel Salaries, Tuition and Other Tax Benefits**

“child benefit” theory extended to personnel salaries, tuition reimbursement and other benefits


 * Lemon v. Kurtzman (1971)**

Rhode Island Salary Suplement Act (1969) – private school teacher salaries supplemented by 15% but no more than public schools- only subjects taught in state public schools- no religion couses. Non-public schools accommodated 25% of the State's pupils. About 95% were Catholic schools

Pennsylvania Statute- (1968) similar to Rhode Island A non-public school may apply for reimbursement- no religious subjects

No law “respecting” an establishment of religion may be made. Could be a step that would lead to the establishment of a religion. Thee “evils” to avoid, “sponsorship, financial support, and active involvement of the sovereign in religious activity.” Must have a secular legislative purpose, neither advances nor inhibits religion, must not foster “excessive government entanglement with religion.”

States did not intend to advance religion.

The court concludes the entire relationship arising under the statutes involves excessive entanglement between government and religion.

District court found parochial schools constituted “an integral part of the religious mission of the Catholic Church”- characteristics of the schools make them a powerful vehicle for transmitting the Catholic faith to the next generation.

Substantial religious character of these church-related schools gives rise to entangling church-state relationships

The State must be certain, given the Religion Clause, that subsidized teachers do not inculcate religion- indeed the State here has undertaken to do so. To ensure that no trespass occurs, the Sate here has undertaken to do so, To ensure that no trespass occurs, the State has therefore carefully conditioned its aid with pervasive restrictions.

The kinds of inspections needed are fraught with the sort of excessive government direction of church schools and hence churches...

These statutes give aid directly to the church-school and not to the parent/student as in Everson and Allen. This will cause political division along religious lines- the potential for political divisiveness related to religious belief and practice is aggravated in these two statutory programs.

The Constitution decrees that religion must be a privte matter for the individual, the family, and the institutions of private choice, and that while some involvement and entanglement are inevitable, lines must be drawn. District court judgments are affirmed- statutes unconstitutional

3 **Committee for Public Education v. NYQuist (1973)**

Constitutionality of a recently enacted New York law which provides financial assistance, in several ways, to nonpublic elementary and secondary schools in that state. “Health and Safety Grants for Nonpublic School Children” provides direct money grants from the State to “qualifying” nonpublci schools to be used for “maintenance and repair of ...school facilities and equipment to ensure the health, welfare and safety of enrolled pupils.” Any nonpublic, nonprofit school with low-income families for the purpose of Title IV of the Federal Higher Education Ac of 1965 Second there is a tuition grant program and a tax benefit program.- reimbursement for tuition for poor families at private schools.

Families who fail to qualify for reimbursement may receive a tax relief

Plaintiffs argued that because of the substantially religious character of the intended beneficiaries (religious schools) each of the states three enactments offended the Establishment Clause.

District Court held 1- maintenance and repair grants and 2- tuition reimbursement grants invalid. But for tax provisions 3,4,5 held Establishment Clause had not been violated.

We (Supreme Court) affirm striking down 1&2 and reverse its determination on 3,4,5 – they also must be struck down.

Three pronged “Lemon test” 1- Must reflect clearly secular legislative purpose 2- neither advances nor inhibits religion and 3- avoid excessive government entanglement with religion.

Each is legitimate non-sectarian purpose- but the law either has a primary effect that advances religion, or fosters excessive entanglements between Church and State the tuition grants here are subject to no such restrictions. There has been no endeavor “to guarantee the separation between secular and religious educational functions and to ensure that State financial aid supports only the former.- the effect of the aid is unmistakably to provide desired financial support for nonpublic, sectarian institutions.
 * “ maintenance and repair”- court does not think it possible within the context of these religion-oriented institutions to impose restrictions of expenditures related to the upkeep of facilities for ONLY secular purposes.
 * Tuition- In the absence of an effective means of guaranteeing that the state aid derived from public funds will be used exclusively for secular, neutral, and nonideological purposes, it is clear form our cases that direct aid in whatever form is invalid

NY State argues that tuition grants are to promote the free exercise of religion- notes that only “low-income” parents are aided by this law and without state assistance their right to have their children educated in a religious environment is diminished or even denied.” The Court admits that tension inevitably exists between the Free Exercise and the Establishment Clauses, and that it may often not be possible to promote the former without offending the latter. As a result of this tension, our cases require State to maintain an attitude of “neutrality” neither “advancing” nor inhibiting religion.

The exemption of church property from taxation tends to complement and reinforce the desired separation insulating each from the other... the granting of the tax benefits under the New York statute would tend to increase rather than limit the involvement between Church and State.
 * Tax benefit- according to the court- little difference between the tax benefit and tuition reimbursement int terms of advancing religion. Special tax benefits, cannot be squared with the principle of neutrality established by the decisions of this Court. Insofar as the benefits render assistance to parents who send their children to sectarian schools, their purpose and inevitable effect are to aid and advance those religious institutions.

The challenged sections (about tax benefits) have been found to advance religion.

Potential for serious divisive political consequences- the court finds New York's aid provisions have “primary effect that advances religion” and offends the constitutional prohibition against laws “respecting the establishment of religion.”

__** VII. <span style="font-family: 'Times New Roman'; font-size-adjust: none; font-size: 7pt; font-stretch: normal; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal;"> ** ** Educational Choice: Vouchers and Charters ** Casebook, pp. 831-846 851-852 Supplemental Materials, pp. 90-143

Supplemental Materials, pp. 144-151
 * VIII. <span style="font-family: 'Times New Roman'; font-size-adjust: none; font-size: 7pt; font-stretch: normal; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal;"> ** ** Mid-Term Exam Due **

Casebook, pp.777-780 213-216 225-245 253-260 Supplemental Materials, pp.152-172
 * IX. <span style="font-family: 'Times New Roman'; font-size-adjust: none; font-size: 7pt; font-stretch: normal; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal;"> ** ** Students’ Freedom of Expression **

Casebook, pp.47-64 75-80 Supplemental Materials, pp.173-205 Christian's Notes: Curriculum:
 * X. <span style="font-family: 'Times New Roman'; font-size-adjust: none; font-size: 7pt; font-stretch: normal; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal;"> ** ** Political Socialization: Curriculum and Internet Issues **

States generally left to make their own arrangements. Beyond compulsory, timings and proficiency in English, States left to their own devices. Other than two statutes in MA and IA, parents cannot dictate curriculum. Special programs have had more challenges, and courts have given parents more rights in this realm. __Meyer v. State of Nebraska. 1923 __ Teacher convicted opf teaching in language other than English. Supreme Ct of state upheld cconviction. Reversed by SC of US. Can compel education in English, but cannot state that extra education in different language cannot take place. //MEYER v. NEBRASKA (1923) Casebook 45// · //teacher convicted of violating statute that forbids teaching anything other than English (in this case, German)// · //14th Amendment challenge – “life, liberty, property without the due process of law”// · //NE SC affirmed// · //Reynolds opinion// o //“Mere knowledge of the German language cannot reasonably be regarded as harmful// o //“…the individual has certain fundamental rights which must be respected. The protection of the Constitution extends to all, to those who speak other languages as well as to those born with English on the tongue.”// o //Recognition of post WWI cultural sentiment, desire for national unity// o //“…the statute as applied is arbitrary and without reasonable relation to any end within the competency of the State.”// · //REVERSED AND REMANDED//

<span style="color: #00004c; font-family: 'Times New Roman','serif'; font-size: 12pt;">Epperson v. Arkansas (1968): Facts of the Case: The Arkansas legislature passed a law prohibiting teachers in public or state-supported schools from teaching, or using textbooks that teach human evolution. Epperson, a public school teacher, sued, claiming the law violated her First Amendment right to free speech as well as the Establishment Clause. The State Chancery Court ruled that it violated her free speech rights; the State Supreme Court reversed. Question: Does a law forbidding the teaching of evolution violate either the free speech rights of teachers or the Establishment clause of the First Amendment? Conclusion: Yes. Supreme Court held that the statute violated the Establishment clause. Writing for the Court, Justice Abe Fortas stated that the law had been based solely on the beliefs of fundamentalist Christians, who felt that evolutionary theories directly contradicted the biblical account of Creation. This use of state power to prohibit the teaching of material objectionable to a particular sect ammounted to an unconstitutional Establishment of religion. Justice Fortas wrote, "The State's undoubted right to prescribe the curriculum for its public schools does not carry with it the right to prohibit, on pain of criminal penalty, the teaching of a scientific theory or doctrine where that prohibition is based upon reasons that violate the First Amendment." The two other members of the Court concurred in the result, writing that it violated either the Due Process clause of the 14th Amendment (because it was unconstitutionally vague) or the Free Speech clause of the First Amendment. Decisions Follow up Cases – Edwards v. Aguillard (1987) State of Louisiana said equal time had to be given to creationism as to evolution. US Supreme Court said the purpose of the statute was religious and struck it down. Freiler v. Tangipahoa. (1999) Louisiana School district said disclaimer had to be given when teaching “theory” of evolution. Following Epperson, 5th circuit struck this down. EPPERSON v. ARKANSAS (1968) Casebook 47 · Teaching of biology in Little Rock; challenges the constitutionality of the “anti-evolution” statute adopted in 1928 to prohibit the teaching of the theory that man evolved from other species of life o broadened language to avoid the frenzy that emerged in the Scopes trial o no teaching of the theory, no use of a textbook that includes this theory · Chancery Court: o Statute violated the 14th Amendment o Interference with freedom of speech and thought witch are contained in the First Amendment…”it tends to hinder the quest for knowledge, restrict the freedom to learn, and restrain the freedom to teach.” · Arkansas SC reversed: o 2 sentence opinion sustained the statute as an exercise of the State’s power to specify the curriculum in public schools · Fortas Opinion o Vagueness of the challenged statute o Arkansas opinion does not address the difference between explaining the theory and teaching the theory as true o “The law must be stricken because of its conflict with the constitutional prohibition of state laws respecting an establishment of religion or prohibiting the free exercise thereof.” § The law addresses a segment of knowledge that conflicts with a particular group’s particular beliefs o “Judicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint” o Precedents § Meyer v. Nebraska – state’s concerns “were not adequate to support the restriction upon the liberty of teacher and pupil” · This case is narrower – focus on establishment clause § Abington v. Schempp – state may not adopt programs or practices which aid or oppose religion § “These precedents inevitably determine the result in the present case. The State’s undoubted right to prescribe the curriculum for its public schools does not carry with it the right to prohibit, on pain of criminal penalty, the teaching of a scientific theory or doctrine where that prohibition is based upon reasons that violate the First Amendment.” o “no doubt that Arkansas has sought to prevent its teachers from discussing the theory of evolution because it is contrary to the belief of some…” o “…the motivation for the law was…to suppress the teaching of a theory which, it was thought, ‘denied’ the divine creation of man.” § à Fortas criticized predecessors in the Meyer case : it’s murky terrain; questions why they went in that direction; redirected to the establishment territory because the boundaries are clearer § à anything that smells of religion would be smacked down · REVERSED · **Left open the question of balancing First Amendment freedoms and the right/responsibility to inculcate values**
 * <span style="color: green; font-family: 'Times New Roman','serif'; font-size: 12pt;">Decision: **<span style="color: #00004c; font-family: 'Times New Roman','serif'; font-size: 12pt;"> 9 votes for Epperson, 0 vote(s) against
 * <span style="color: green; font-family: 'Times New Roman','serif'; font-size: 12pt;">Legal provision: **<span style="color: #00004c; font-family: 'Times New Roman','serif'; font-size: 12pt;"> Establishment of Religion

<span style="color: #00004c; font-family: 'Times New Roman',serif; font-size: 12pt;"> __**B. of Ed, Island Trees Union Free School District No. 26 v. Pico** __**<span style="font-family: 'Times New Roman','serif'; font-size: 12pt;">Pico was a student **<span style="font-family: 'Times New Roman','serif'; font-size: 12pt;"> Richard Ahrens, Frank Martin, and Patrick Hughes were members of the Board of Education of the Island Trees Union Free School District No. 26 in New York. In September 1975, they attended a conference sponsored by Parents of New York United ("PONYU"). PONYU was a group of conservative parents that was concerned about education in New York's public schools. At the conference, Ahrens, Martin, and Hughes got lists of books that PONYU considered to be inappropriate for public school students. When they returned from the conference, the board members learned that their high school library had nine of the books on the lists, and the junior high school library had one. The books included //Slaughterhouse Five,// by Kurt Vonnegut, Jr., and //Best Short Stories of Negro Writers,// edited by Langston Hughes. Some of the books contained graphic descriptions of sexual intercourse. One criticized President George Washington for owning slaves. Some of the books said hateful things about Jesus Christ and Jews. The board ordered the school principals to remove the nine books from the libraries so the board could study them. In a press release, the board said the books were "anti-American, anti-Christian, anti-Semitic, and just plain filthy.".) The board said its duty was to protect students from moral dangers in books just like it protected them from physical and medical dangers. A short time later, the board formed a committee of parents and school personnel to study the books. The committee's job was to determine if the books had any educational value. The committee recommended that the board return five of the nine books to the libraries, and make one more available to students with parental permission. The board, however, rejected this recommendation, returned only one book to the high school library, and made one other available with parental permission only. <span style="font-family: 'Times New Roman','serif'; font-size: 12pt;">Richard A. Pico and three other students filed a lawsuit against the Island Trees Board of Education in federal district court. The students said the board removed the books not because they lacked educational value, but because they offended the board's social, political, and moral tastes. The students argued that removing books for those reasons violated the First Amendment freedom of speech. The First Amendment says, "Congress shall make no law . . . abridging [limiting] the freedom of speech." State and local governments, including public school boards, must obey the freedom of speech under the Due Process Clause of the Fourteenth Amendment. The district court granted summary judgment for the board, which means it ruled in favor of the board without holding a trial. The court said it would be unwise for it to interfere with a decision made by the Island Trees Board of Education. It also said removing "vulgar" books from public school libraries does not violate the freedom of speech. On appeal, the United States Court of Appeals for the Second Circuit reversed the district court's decision. It said Pico and the other students deserved a trial to force the Board of Education to give a good reason for removing the books from the libraries. The Island Trees Board of Education took the case up to the U.S. Supreme Court. <span style="font-family: 'Times New Roman','serif'; font-size: 12pt;">In a close decision, the Supreme Court voted 5–4 in favor of Pico and the students. Writing for the Court, Justice William J. Brennan, Jr., said the students deserved a trial to determine if the board's reason for removing the books violated the freedom of speech. Justice Brennan said public schools are allowed to prepare students to be good citizens by teaching them good morals. Schools, however, cannot violate the First Amendment while doing so. Quoting//Tinker v. Des Moines Independent Community School//**,** Justice Brennan said students do not "shed their constitutional rights to freedom of speech and expression at the schoolhouse gate." Justice Brennan said the freedom of speech was designed to allow Americans to discuss, debate, and share information and ideas. Authors could not share information in books if people were not allowed to read them. That means the freedom of speech also includes the right to receive information and ideas. "[S]tudents must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding." Justice Brennan decided that when a school removes books from the library because it doesn't like the political or social ideas in them, it violates the right to receive information. Removing books because they are vulgar or lack educational value, however, is proper for teaching students to be good citizens with good morals. Pico and the other students, then, deserved a trial to determine the real reason the Island Trees Board of Education removed the books from the libraries. <span style="font-family: 'Times New Roman','serif'; font-size: 12pt;">Four justices dissented. Chief Justice Warren E. Burger wrote a dissenting opinion. He said the question in the case was whether local schools should be run "by elected school boards, or by federal judges and teenage pupils." Justice Burger strongly urged that school boards have the final say about what books to include in public school libraries. He disagreed that the freedom of speech includes a right to receive information. Warren said school boards are allowed to remove vulgar books that may prevent the development of good morals. Competing values – a tension between these twwo: State and district responsibility to promote civic virtues and citizenship. Must also stay within bounds of first amendment. Does 1st amendment give a right to receive information? Question answered negatively by dissenting judges. Follow up case – Reno v. ACLU extended 1st amendment protection to internet and declared that officials may not limit access to media for those below the age of majority. BOARD OF ED, ISLAND TREES UNION FREE SCHOOL DISTRICT v. PICO (1982) Casebook 52 · CONTEXT: movement of conservative ideologues to winnow certain books from libraries; · Does the First Amendment impose limitations on a local school board of its discretion to remove library books from jr and sr high school libraries? · Background o Group of board members attended a PONYU conference and received a list of “objectionable” books o An “unofficial direction” removed 10 books on the list from the school libraries for review o When news broke, the Board issued a press statement describing the books as “anti-American, anti-Christian, anti-Semitic, and just plain filthy.” o FYI: books on the list § The Fixer, Laughing Boy, Black Boy, Go Ask Alice, Best Short Stories by Negro Writers, The Naked Ape, Down These Mean Streets, Soul on Ice, A Hero Ain’t Nothin But a Sandwich; A Reader for Writers was not ultimately removed · Legal action alleged that petitioners “ had ordered the removal of the books…because particular passages in the books offended their social, political and moral tastes and not because the books, taken as a whole, were lacking in educational value.” o First Amendment claim · Brennan opinion o INSIGHT: Brennan thought PARTISANSHIP was very clear here – not a good faith discernment of curriculum and values; attacks ideological drives § For Brennan, this is about as politically charged as you can get o Though only a plurality, Brennan’s opinion has gotten a LOT of mileage (Rebell: “More than it’s entitled to”) o Why limit the consideration to the removal of books? § Take the cleanest case…narrow focus…implications… o Precedents – school board discretion § Meyer § Epperson § Pierce – “government should not ordinarily intervene” in daily operations § Tinker – comprehensive authority of states and school officials for conduct control in schools § Ambach v. Norwick – importance of schools for civic participation and maintenance of democratic political system § à affirmation of the authority of school boards o Distinction § This case is difference – “this case…does not involve textbooks, or indeed any books that Island Trees students would be required to read.” § “the only books at issue in this case are library books, books that by their nature are optional rather than required reading. Our adjudication…does not intrude into the classroom.” § “the action before us does not involve acquisition of books” § this challenges the Board’s right to remove what they first placed there o BUT § School boards must act “in a manner that comports with the transcendent imperatives of the First Amendment” · W Va v. Barnette (flag salutes) § Tinker – “students do not shed their constitutional rights…at the schoolhouse gate” o First Amendment Rights are implicated in the removal of books - ACCESS § The constitution protects the right to receive information and ideas (Stanley v Georgia) – corollary to free speech and press § Special characteristics of the school (tinker) translate to special characteristics of the library… § “students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding. [Keyshian v Board of Regents]. The school library is the principal locus of such freedom.” · à makes the library a symbolic democratic forum § School board can defend their claim to authority in matters of curriculum. But their authority is limited to the compulsory classroom – not “into the school library and the regime of voluntary inquiry that there holds sway.” o “…local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books and seek by their removal to prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.” · Blackmun concurrence o Different perspective on First Amendment: he’s ready to go further than Brennan and to apply this standard to total program and curriculum § Balance of education officials’ ability to promote civic virtues and the confines of the First Amendment § “the principle involved here is both narrower and more basic than the right to receive information identified by the plurality.” § “certain forms of state discrimination between ideas are improper. In particular, our precedents command the conclusion that the State may not act to deny access to an idea simply because state officials disapprove of that idea for partisan or political reasons.” · Burger dissent o On First Amendment claims – “It does not follow, however, that a school board must affirmatively aid the speaker in his communication with the recipient.” § Criticizes implication in the majority opinion that the government through its schools is responsible to communicate all ideas § “How are fundamental values to be inculcated except by having school boards make content-based decisions about the appropriateness of retaining materials in the school library and curriculum?” § à schoolboards are elected; elections are political; the standard that Brennan is putting forward doesn’t hold water, that we can draw a line between politics and school boards’ decisions · Rehnquist dissent o Brennan’s opinion is largely hypothetical in character and ignores facts of the present case § Had the petitioners been a town council, we would concur that “they could not have prohibited the sale of these books by private booksellers within the municipality.” § Goes on to assess the government as educator (as vs sovereign) · Economy of decision making – some books, not others, depending on resources · This discernment is the role of the local school board o Criticizes the assertion that this Court has guaranteed the “right to receive ideas” – because the books are available at the public library or store o “The idea that such students have a right of access in the school to information other than that thought by their educators to be necessary is contrary to the very nature of an **inculcative** education. Education consists of the selective presentation and explanation of ideas.” o Criticizes the “motive test” in Brennan’s opinion o Charles Colton: “Judicial jiu-jitsu” · Rebell’s commentary: o Brennan’s opinion doesn’t seem to make sense…but it’s had a HUGE impact: § Result of the case: · The case went to trial: greater insight into the motivation of the school board; · The trial never happened, was settled: the Board was hesitant to put a greater focus on the motivations · The books went back to the library, and a policy of parent-notification about receipt was established o Brennan’s opinion has seeped into the psychology of legal actions – § Pierce Compromise: the State has a right to inculcate values; parents have a right to be free from state control à tension: could be a heavily regulated regime over private schools; this hasn’t happened; States don’t regularly enforce their control ANALOGOUS THING HAPPENING IN PICO § Pico Compromise: the State has control over education; there is a limit protected by the First Amendment · Inculcate whatever you want, but use good judgment and don’t go too far (to avoid application of the standard) o Pico holds real value in the long term; it’s doing what Brennan intended – it’s drawn a line that people are paying attention to __**Virgil v. School B of Columbia County, FL (1989)** __<span style="font-family: 'Times New Roman','serif'; font-size: 12pt;">However, in this case, two parents, Rev. and Mrs. Fountain, complained about Lystistra (Aristophanes) and A Miller’s tale by Chaucer. School Board agreed. Other parents sued saying that it broached their first amendment rights. District,Circuit and Supreme Court all affirmed the Board of Education’s right to take action that are reasonably related to legitimate pedagogical concerns.” Teacher Control of Curriculum: William Buss. (1999). P. 75 in Law Book Classic statement of University teachers academic freedom, 1915. AAUP careful to restrict this to above grade 12, but some try to say it involves having the final say in communicating the curriculum for all teachers.
 * <span style="font-family: 'Times New Roman','serif'; font-size: 12pt;">Petitioners' Claim: **<span style="font-family: 'Times New Roman','serif'; font-size: 12pt;"> That removing vulgar and racist books from public school libraries does not violate the First Amendment.
 * <span style="font-family: 'Times New Roman','serif'; font-size: 12pt;">Date of Decision: **<span style="font-family: 'Times New Roman','serif'; font-size: 12pt;"> June 25, 1982
 * <span style="font-family: 'Times New Roman','serif'; font-size: 12pt;">Decision: **<span style="font-family: 'Times New Roman','serif'; font-size: 12pt;"> Removing books from public school libraries because of their political or social ideas violates the freedom of speech.
 * <span style="font-family: 'Times New Roman','serif'; font-size: 12pt;">Significance: **<span style="font-family: 'Times New Roman','serif'; font-size: 12pt;"> //Island Trees// limits the ability of public schools to remove offensive books from their libraries.
 * <span style="font-family: 'Times New Roman','serif'; font-size: 12.5pt;">Fighting censorship **
 * <span style="font-family: 'Times New Roman','serif'; font-size: 12.5pt;">Read all about it **
 * <span style="font-family: 'Times New Roman','serif'; font-size: 12.5pt;">Who rules school? **

Against the claim of teacher autonomy is the claim of “owner managers” wo claim the right to specify what will be taught in their schools. VIRGIL v. SCHOOL BOARD OF COLUMBIA COUNTY, FLORIDA (1989) (US Court of Appeals, 11th Circuit) · whether the First Amendment prevents a school board from removing a previously approved textbook because of objections to vulgarity and sexual explicitness · “We conclude that a school board may, without contravening constitutional limits, take such action where, as here, its methods are ‘reasonably related to legitimate pedagogical concerns.’” · Complaint by Mr & Mrs Fountain o Texts in question – The Lysistrata and The Miller’s Tale in a Humanities textbook o School board adopted a new policty § Advisory committee would review texts in question o Committee recommended that the book remain in the curriculum but that the 2 not be assigned as required reading o Superintendent Silas Pittman disagreed, rec’d that the selections be deleted from the book or that the book be cut from the curriculum o Board took Pittman’s second recommendation · Parents filed an action against the board and superintendent on First Amendment grounds o District Court deferred to Kuhlmeier wisdom (noninterference) and affirmed that the decision was made on reasonable pedagogical grounds · Opinion o Apply Hazelwood/Kuhlmeier (newspaper) o The board made reasonable pedagogical consideration § “common sense indicates that the overall curriculum…includes not only the core…but also such additional, elective courses of study” § even optional readings in elective courses carry the implicit imprimatur of the school o motivation fro the board hinges on the explicit sexuality and vulgar language § affirms the board’s concerns for the particular audience § “We also note that the disputed materials have not been banned from the school. The Humanities textbook and other adaptations of Lysistrata and The Miller’s Tale are available in the school library. No student or teacher is prohibited from assigning or reading these works or discussing the themes contained therein in class or on school property.” o “We decide today only that the Board’s removal of these works from the curriculum did not violate the Constitution. Of course, we do not endorse the Board’s decision. Like the district court, we seriously question how young persons just below the age of majority can be harmed by these masterpieces of Western literature…our role is not to second guess the wisdom of the Board’s action.” <span style="font-family: 'Times New Roman',serif; font-size: 12pt;"> __**Boring v. Buncombe County Board of Education. (1998)** __<span style="font-family: 'Times New Roman','serif'; font-size: 12pt;"> Teacher, the wonderfully but as we shall see, inaccurately named, Mrs. Boring produced a controversial play with fpour students. Other parents complained. Principal told her they could not compete in state finals, but then acquiesced. Had her transfered at end of year. Boring sued saying that policies were not in place when she produced play, and she was punished for her views, and thus her right to freedom of speech (under 1st and 14th amendments) was violated. Discussion: Drama within curriculum Teacher had no first amendment right to choose play or to make curriculum. Decision was affirmed – Mrs. Boring lost. Other notable cases where teachers have fought to have some right to form curriculum: BORING v BUNCOMBE COUNTY BOARD OF ED (1998) · whether a teacher has a First Amendment right to participate in making school curriculum · Ms. Boring’s selection of “Independence,” which includes controversial material o The principal insisted on an edit of the script; the play went on to accolades o Ms. Boring complained that her transfer was a result of the controversy stirred by her conflict with the principal (Mr Ivey) § Claims “her transfer was in retaliation for expression of unpopular views through the production of the play and thus in violation of her right to freedom of speech under the First and Fourteenth Amendments” · Court uses Webster’s definition of curriculum · Court employs the precedence of Hazelwood v Kuhlmeier (newspaper) regarding the limits of free speech o Reasoning of the Court: everything that bears or implies the imprimatur of the school is the domain of the local school administration · Relegates the conflict to “an ordinary employment dispute” · DECISION: DEFERENCE TO THE LOCAL AUTHORITIES “In our opinion, it is far better public policy, absent a valid statutory directive on the subject, that the makeup of the curriculum be trusted to the local school authorities who are in some sense responsible, rather than the teachers, who would be responsible only to the judges” · Implication: no First Amendment protection for teachers o Rebell: doesn’t ring true; § There has to be academic freedom to teach well § Returns the discussion to the gray area pre-Pico § Makes sense in terms of turning to non-constitutional realm and collective bargaining <span style="font-family: 'Times New Roman',serif; font-size: 12pt;"> __Newton v. Slye (2000)__<span style="font-family: 'Times New Roman','serif'; font-size: 12pt;"> English teacher promoted banned books with pamphlet. Court said pamphlet was part of curriculum and therefore under the auspices of the school, not the teacher.

<span style="font-family: 'Times New Roman',serif; font-size: 12pt;"> __Hennesy v. City of Melrose. (1999)__<span style="font-family: 'Times New Roman','serif'; font-size: 12pt;"> certification student had no right to introduce materials into the curriculum.

<span style="font-family: 'Times New Roman',serif; font-size: 12pt;"> __Murray v. Pittsburgh Bof Pub Ed. (1996)__<span style="font-family: 'Times New Roman','serif'; font-size: 12pt;"> Teache of special ed had no right to use “Learnball Superball”… whatever that is!

<span style="font-family: 'Times New Roman',serif; font-size: 12pt;"> __Peloza v. Capistrano Unified School District (1992).__<span style="font-family: 'Times New Roman','serif'; font-size: 12pt;"> Biology teacher contended that his constitutional rights were violated if he had to teach theory of evolution. Federal court disagreed – his rights were not violated, even if he had to answer questions or having to refrain from exspressing his own opinions. Court held teachers do not have a constitutional ruight to teach according to their own views.

<span style="font-family: 'Times New Roman',serif; font-size: 12pt;"> __Kirkland v. Noirthside Independent School District. (1989__<span style="font-family: 'Times New Roman','serif'; font-size: 12pt;">). Teacher’s controversial supplemental reading list was not protected as a matter of public concern. This speech would have to be expressed in capacity as a private citizen, not as an employee of the public school district. Control of the curriculum has never been in control of the teachers. What about higher Ed? Teachers do not have universl coverage there either. College can control access to internet: <span style="font-family: 'Times New Roman',serif; font-size: 12pt;"> __Urofsky v. Gilmore (2000)__<span style="font-family: 'Times New Roman','serif'; font-size: 12pt;"> – professors said they needed access to explicit material. Court said no. <span style="font-family: 'Times New Roman',serif; font-size: 12pt;"> __Loving v. Boren (1997)__<span style="font-family: 'Times New Roman','serif'; font-size: 12pt;"> – professor said 1st amendment violated when President cut off access to news groups. Court hekld that internet service does not constitute a public forum! <span style="font-family: 'Times New Roman',serif; font-size: 12pt;"> __**Supplemental Reading:** <span style="font-family: 'Times New Roman','serif'; font-size: 12pt; text-decoration: none;"> <span style="font-family: 'Times New Roman',serif; font-size: 12pt;"> **Legal Aspects of Internet Accessibility AND USE IN K-12 PUBLIC SCHOOLS;WHAT DO SCHOOL DISTRICTS NEED TO KNOW?__** <span style="font-family: 'Times New Roman','serif'; font-size: 12pt; text-decoration: none;"> <span style="font-family: 'Times New Roman','serif'; font-size: 12pt;"> **<span style="font-family: 'Times New Roman','serif'; font-size: 12pt;">Inappropriate material available, but censorship an issue, even in schools. Filtering technology may not satisfy government requirement that restrictions are “narrowly tailored.” ** <span style="font-family: 'Times New Roman','serif'; font-size: 12pt;"> <span style="font-family: 'Times New Roman','serif'; font-size: 12pt;"> **<span style="font-family: 'Times New Roman','serif'; font-size: 12pt;">Pico causes an issue for schools, evene if filtering technology passes muster. Pico court said school boards have role to play in determining suitability of material, but not based on values or opinions. ** <span style="font-family: 'Times New Roman','serif'; font-size: 12pt;"> <span style="font-family: 'Times New Roman','serif'; font-size: 12pt;"> **<span style="font-family: 'Times New Roman','serif'; font-size: 12pt;">4th circuit (VA) ruled that restricting teachers access to employers internet system does not infringe constitutional rights. Similarly, in OK, court ruled that dual system, one for regular use and one for research of sexually explicit material did not infringe 1st AM. ** <span style="font-family: 'Times New Roman','serif'; font-size: 12pt;"> <span style="font-family: 'Times New Roman','serif'; font-size: 12pt;"> **<span style="font-family: 'Times New Roman','serif'; font-size: 12pt;">Brandon Beussink created very critical site about school administrators. He was suspended and told to clean up the site. Grades dropped. ACLU brought suit and the court found that there was no materially and substantially interfereing” with school. (Tinker precedent). ** <span style="font-family: 'Times New Roman','serif'; font-size: 12pt;">
 * <span style="font-family: 'Times New Roman','serif'; font-size: 12pt;">1.<span style="font-family: 'Times New Roman'; font-size-adjust: none; font-size: 7pt; font-stretch: normal; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal;"> ****<span style="font-family: 'Times New Roman','serif'; font-size: 12pt;">Providing Public School Internet Access. **
 * <span style="font-family: 'Times New Roman','serif'; font-size: 12pt;">2.<span style="font-family: 'Times New Roman'; font-size-adjust: none; font-size: 7pt; font-stretch: normal; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal;"> ****<span style="font-family: 'Times New Roman','serif'; font-size: 12pt;">Limiting students’ internet access. **
 * <span style="font-family: 'Times New Roman','serif'; font-size: 12pt;">3.<span style="font-family: 'Times New Roman'; font-size-adjust: none; font-size: 7pt; font-stretch: normal; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal;"> ****<span style="font-family: 'Times New Roman','serif'; font-size: 12pt;">Limiting teachers access. **
 * <span style="font-family: 'Times New Roman','serif'; font-size: 12pt;">4.<span style="font-family: 'Times New Roman'; font-size-adjust: none; font-size: 7pt; font-stretch: normal; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal;"> ****<span style="font-family: 'Times New Roman','serif'; font-size: 12pt;">Students’ personal Internet Expression. **
 * <span style="font-family: 'Times New Roman','serif'; font-size: 12pt;">When outside internet use affects school, courts will act. **
 * <span style="font-family: 'Times New Roman','serif'; font-size: 12pt;">In Pennsylvania student created threatening website – he was was expelled and this was upheld. Student = Swidler. Teacher = Kartsotis. **
 * <span style="font-family: 'Times New Roman','serif'; font-size: 12pt;">ACLU action has made a differene with school boards – they back off quickly. **
 * <span style="font-family: 'Times New Roman','serif'; font-size: 12pt;">School boards have had to make payment for overlooking first AM rights. **
 * <span style="font-family: 'Times New Roman','serif'; font-size: 12pt;">Eg O’Brien case in Ohio and Emmet case in WA. (page 183). **
 * <span style="font-family: 'Times New Roman','serif'; font-size: 12pt;">Privacy and the internet. **
 * <span style="font-family: 'Times New Roman','serif'; font-size: 12pt;">Parents may not want their kids to have access, yet they do in school. **
 * <span style="font-family: 'Times New Roman','serif'; font-size: 12pt;">Ferpa - restricts personal information./ Not yet clear with internet. **
 * <span style="font-family: 'Times New Roman','serif'; font-size: 12pt;">Defamation and school-sponsored internet. **
 * <span style="font-family: 'Times New Roman','serif'; font-size: 12pt;">Copyright and the Internet. **

Casebook, pp. 151-162 273-285 288-292 Supplemental Materials, pp. 206-257
 * XI. <span style="font-family: 'Times New Roman'; font-size-adjust: none; font-size: 7pt; font-stretch: normal; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal;"> **** Discipline in the Schools **

Jamie

Right to an Administrative Hearing 2 problems arise when students are confronted w/ disciplinary action: 1. whether/what time the law requires an administrative hearing 2. attributes of that hearing

1. Dixon v. Alabama State Board of Ed. (1961) - P. 151 Casebook (appeals court) -Six plaintiffs – students at Alabama State College for Negroes -Entered a lunch grill at municipal county courthouse with others and asked to be served. They were refused and asked to leave. They did not leave. -Governor of Alabama suggested to the college pres. they should leave school - The next day, they and several hundred Negro students staged demonstrations in Montgomery and Tuskegee - received warning that they were disrupting orderly conduct of college and should return to class

Question: Does due process require notice and some opportunity for hearing before students at a tax-supported college are expelled for misconduct? YES (kids didn’t get any say before expulsion AND expulsion would provide sufficient injury)

- College president testified that he didn’t know why plaintiffs and 3 others were expelled. - Board of Education all had different reasons for expulsion - Reports given to the state board of ed. said Dr. Trenholm, president, said “action…was having a disruptive influence on the work of the other students at the college and upon the orderly operation of the college in general…”

- 29 were in core of group: 9 were expelled, 20 were put on probation - no formal charges placed against them - no hearing was granted prior to expulsion

- If gov’t acts to injure, must go through due process of law.

-district court said the right to attend a public college is not a constitutional right - no other college said they’d take them (or at least it was not brought up)

-appeals court said district court misinterpreted precedent that said colleges could dismiss students anytime for whatever reason – pro students

- Standards of Compliance (p. 154-5)

2. Goss v. Lopez (1975) (p. 155, 206 supp) - Columbus Ohio public school system challenging 3-judged fed. court which said HS students were denied due process of law contrary to Fourteenth Amendment.

due process: cannot be deprived of life, liberty, or property -Education is treated as a property interest in Ohio, which is protected by the 14th due process clause. Therefore, any suspension requires a notice.

- 9 Kids were temporarily suspended from hs without a hearing and want it stricken from their record (2 hs and 1 middle) (75 kids were actually suspended) - involved in a variety of disturbances and demonstrations (a group of black students were “disgruntled” due to a lack of comparable assembly for black history month.) - kids said code 3313 is unconstitutional because they were not offered due process even though suspended 10 days or fewer

-Principal is allowed to suspend up to 10 days or expel, but must notify parents w/in 24 hrs and state reasons for action -If expelled, Parents/pupil can then appeal decision to Board of Ed. and can be heard at board meeting. Board may reinstate

-Federal Court For School said plaintiffs were denied due process of law and said it should be stricken from records. School brought it to Supreme Court. Supreme Court upholds Federal – For Kids They think that because of compulsory ed., they have to give them particular rights consistent with due process.

Dissent: Powell, Blackmun, Rhenquist - basically saying this law could inversely affect quality of schools because of unnecessary government intrusion. We should trust the administration in schools. - believes that under free education, the power to suspend should be encompassed in the “entire package of statutory provisions” - cites great quote from Epperson (evolution teaching) on 207 that courts “do not and cannot intervene in the resolution of conflicts which arise in the daily operation of school systems which do not directly and sharply implicate basic constitutional values.” This goes back on precedent of Epperson - Rights of children and adults are not equal - Teacher, using suspension, is often doing it to protect his/her safety and the education rights of the other children - Suspension serves the purpose of necessity of and obedience to rules. - Teaches relevance to “social compact of respect for the rights of others” - “misapprehends the reality of the normal teacher-pupil relationship” - Court hearing doesn’t provide more protection than the school already has by notifying students and parents within 24 hours!

Corporal Punishment 3. Ingraham v. Wright (1977) - (supreme) P. 273 casebook -Does paddling students to maintain discipline constitute cruel and unusual punishment in violation of the 8th? -If constitution allows paddling, does due process clause of 14th require prior notice?

NO – don’t need due process before hitting. Supreme Court affirms district court’s ruling

PRO SCHOOL

Facts: - Dade County, FL – specifically Drew Junior High School - Allowed limited corporal punishment with regulation containing explicit direction and limitaion - could paddle on the bum with flat paddle 1-5 times (specifics given 274) - seen as less drastic than suspension/expulsion - 16 students as evidence; 2 kids paddled extremely hard - Ingraham 20 times so sever got hematoma (bruise) (spoke too slowly) - Andrews hit on his arms, couldn’t use his arm for a week (minor school rules)

- District court assumed testimony was credible and found that all but count 3 did not violate constitutional rights (not cruel and unusual) Families also wanted damages

Decision (p. 279): - When public schoolteachers use corporal punishment, 8th Amendment is inapplicable. - Due Process Clause does not require notice and hearing prior to corporal punishment

- Been in use for a really long time, since colonial period - ppl may be split on it, but can forsee no elimination - 8th amendment does NOT apply to paddling kids as means of maintaining discipline

- School may be held accountable if punishment given is excessive. - Argues that teachers and schools won’t inflict unnecessary or excessive punishment if they know there’ll be criminal proceedings against them. - ok to eliminate corporal punishment, but not because of due process rules

Dissent: -“Constitutional prohibition is against cruel and unusual punishments; nowhere is the prohibition limited or modified by language of Constitution” - “Cruel and Unusual” when punishment doesn’t fit the crime. Kids may argue beating doesn’t fit whatever they did wrong.

4. Garcia v. Miera (principal) (1987) – New Mexico (Court of Appeals)

Facts: - Theresa Garcia, 9 yrs old 3rd grade - Feb 10, 1982, Garcia hit a boy who kicked her. - Miera told Garcia to go to chair to be paddled; Garcia said no, said dad said “Mrs. Miera better shape up” - Miera called Sanchez, teacher, for help – held girl upside down by ankles while she was struck 5 times on thigh - teacher found blood, took her to restroom and found a welt and 2 inch cut - Parents told Miera she had to call them before hitting kid

- 2nd incident May 13, 1983 – spreading rumors of infidelity between father and teacher - Miera hit Garcia twice and needed help from administrative associate for help restraining her for final 3 - Really bad bruises – Dr. and nurse said some of worst they’ve ever seen – took photos - Garcia asked to call mom but Miera said no, “I know the law”

- District court granted summary judgment to defendants, but Garcia appealed this order (Did defendants ask for summary judgment because they knew they had done something wrong?

Decision: - 3 categories of corporal punishment o punishments that don’t exceed traditional standards of reasonableness are not actionable o punishments exceed common law standard w/o adequate state remedies violate procedural due process rights o excessive, consience-shocking punishments violate due process rights - Summary judgment was reversed and remanded for further proceedings

Academic Sanctions 5. State ex Rel. Barno v. Crestwood Board of Ed. (1998) (Ohio Appeals Court) (p. 288 bk)

-Can a board of education deny a student’s diploma squarely based on absences?

Facts: - Jennifer Barno, senior - Completed vocational curriculum at Maplewood with a GPA of 3.966 - Passed all proficiency tests - Filed a writ of mandamus

- Trial court issued alternative writ on next day saying she did not complete “curriculum” because she needed 93% attendance rate – could only be absent 13 days, and she was out 18 ½ days (all but 2 excused)

Decision: - Jennifer filed an “extenuating circumstances” form that said her absences were because of minor personal illnesses and family vacations. Principal and 3 teachers reviewed it and didn’t find it compelling.

- Jennifer then filed an “appeal” – request for reconsideration.

- Trial Court denied petition saying school was not required by law to give her a diploma, and that she should have known, as requirements were in student handbook

- Appeals Court REVERSED Decision – she gets diploma

o Maplewood is trying to make attendance a prereq for academic credit, which is like making attendance part of the curriculum, which it isn’t o It is counting excused and unexcused against student, which a workplace would never do o Board of Ed. did not specify in the handbook what the reinstatement committee should consider in terms of extenuating circumstances 6. Price v. NYC Board of Ed. (2008)

Facts: Parents opposed cell phone ban

State Supreme Court denied. Parents petitions.

Appellate held state court decision.

Casebook, pp. 172-196 208-211
 * XII. <span style="font-family: 'Times New Roman'; font-size-adjust: none; font-size: 7pt; font-stretch: normal; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal;"> **** Search and Seizure **

Casebook, pp. 393-436 · //Pickering v Board of Education (1968)// (cb393) [] o http://www.oyez.com/cases/1960-1969/1967/1967_510 o Facts § Teacher in Illinois sent a letter to a local newspaper in reference to a proposed tax increase to raise money for schools (SEE BELOW FOR AMOUNT) § Letter was critical of the way the BoE and superintendant had handled past proposals to raise new revenue § Teacher dismissed because letter was “detrimental to the efficient operation and administration of the schools” § Teacher sues under 1st and 14th Amend o Decision § School rejects his 1/14 claim § Circuit Court, citing his letter was “detrimental to the interests of the school system,” says no violation § SC of Illinois upholds · Only reviewed to make sure BoE proved its case · Says as a teacher he cannot make statements he would be allowed to make otherwise (no 1st Amend) § **USSC reverses, claims 1st and 14th were violated** o Details § Majority given by Marshall § Bond proposals in 1961 · $4.8mil in February- got defeated · $5.5 mil in Dec. for two new schools- got passed § in 1964- school board proposes tax hike for “educational purposes” (394) § THE LETTER · An “attack” n the 1961 bond issue, later allocation of $ b/t athletics and edu, and said superint. “attempting to prevent teachers… from opposing or criticizing the proposed bond issue.” § THE HEARING · Board says “numerous statements in the letter were false” and the publication “unjustifiably impugned the ‘motives, honesty, integrity, etc.’” of the BoE and the admin (394) · Also, false statements weaken authority § USSC DECISION · The problem in any case… finding the balance between interests of citizen and interests of the state · “no question of maintaining either discipline by immediate superiors or harmony among coworkers here” (395) · because he wrote the statements about people he never met with regularly · Letter did not damage ppl’s reputations · A “difference of opinion” of the athletic funding question o The allocation of public money is “a matter of legitimate public concern” (396) o “**Free and open debate is vital to informed decision-making by the electorate”** § teachers are likely to be informed and have definite opinions · Letter written AFTER proposal defeated @ polls · CONCLUSION: o Absence of proof of false statements made recklessly o Matters were of public importance o Excercising 1st Amend rights are not a basis for dismissal o The //Pickering// balancing test § When the rights of the teacher cannot be infringed because the state cannot state a pedagogical reason for limiting rights
 * XIII. <span style="font-family: 'Times New Roman'; font-size-adjust: none; font-size: 7pt; font-stretch: normal; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal;"> ** ** Teachers’ Freedom of Expression **
 * Please ignore the misspellings and other stuff-- these were just notes!*

· //Mt Healthy City School BoE v Doyle (1977)// (cb 398) [] o FACTS § Doyle: A teacher with a history of minor disciplinary infractions § Admin passes a teacher dress code memorandum, Doyle passes it along to a radio DJ who played it on the air § Doyle’s contract was not renewed (along with 9 other teachers) · If he got rehired, he would be up for tenure § When he asked for a reason, the BoE responsded it was his “notable lack of tact in handling professional manners”

o DECISION § District court finds for plaintiff (Doyle), citing violation of 1st and 14th Amendments § Court of Appeals affirms § USSC remands for further proceedings o DETAILS § District Court said Doyle’s phone call was protected by the 1st Amend. § //Even though// he could have been fired for no reason, **“if the decision not to rehire him was made by reason of his exercise of constitutionally protected First Amend freedoms,”** he could petition for his job · If they had kept their mouth shut, it would not have been an issue § District Court finds two principles: · If a “non-permissible reason” (a violation of rights), played a part in the decision not to renew, the deicison may not stand · A non-perm reason DID play a part § They could have fired him if the radio incident hadn’t happened **OR IF THEY HADN’T CITED IT AS A REASON** § THE COURT’S POSITION (Rehnquist) · Unanimous · Doyle was probably going to be fired anyway, and the court does not want to establish the principle of people being able to keep their jobs by doing something constitutionally protect · Remands to lower court to apply the test of if the Board would have fired him anyway without a violation of rights

· //Connick V Myers (1983)// (cb402) o [] o Connick is actually Harry Connick Sr o FACTS § Sheila Myers, an ADA in New Orleans, was being transferred to a different section of the office to prosecute different cases § She did not want to be transferred and created a questionnaire about transfer policy, morale, and level of confidence in supervisors § Connick fired her for refusing to accept the transfer and for “insubordination” § Myers sued under 1st Amendment rights o DECISION § District Court finds for plaintiff (Myers) on grounds that the firing was actually based on the questionnaire- a matter of public of interest · Also didn’t “substantially interfere” with the DA’s office § US Court of Appeals affirmed District Court’s finding § USSC **reverses** lower court opinions o DETAILS § USSC: District Court misapplied the //Pickering// test · Connick: Myers’ questionnaire was not a matter of plblic concern, but office politics · “When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern in the community…” its not protected by //Pickering// · she was not speaking as a citizen, but in her hers of her personal interest o “the questionnaie, if released to the public, would convey no informations at all other than the fact that a single employee is upset with the status quo” (404) § District cCourt “imposed and unduly onerous burden” on the state to justify Myers’ discharge” (405) § Question 10 (about confidence in supervisors “carries the clear potential for undermining office relations” (405) because its subversive intentionally § Fact that it took place AT the office also “endangered” the functioning of the office § The survey was a limited “employee grievance concerning internal office policy” (406) o THE CONNICK TEST the result · //Waters v Churchill (1994)// (cb408) o [] o http://www.firstamendmentcenter.org/faclibrary/case.aspx?case=Waters_v_Churchill o FACTS § Cheryl Churchill a nurse @ a hospital § Fired for a conversation she had that was overheard, but what was overheard was disputed · She was supposedly upset with the department and telling a trainee that obstetrics was a bad place to work · Overheard by Ballew § A past evaluation by defendant (Waters) said plaintiff (Churchill) “promotes an unpleasant atmosphere” and “hinders conctructive communicatiosn and cooperation” (409) § Churchill denied she said those things, instead was complaining about a cross-training policy designed to cover staffing shortages bc of patient safety reasons · She did knock one supervisors, though · Other people corraborate this version § Churchill sued under 1st Amendment because speech protected by //Connick v Myers// § o DECISION § District Court rejected Churchill’s claim · “the speech was not a matter of pubic concern… even if it was ON a matter of public concern.” (410) § US Court of Appeal reversed · Passed //Connick// test bc it was a matter of public ocnern § USSC- vacate appeals judgment and remand for further proceedings o DETAILS § **PLURALITY** Opinion given by O’Connor § The Court’s job to apply //Connick// here § YIKES” though the First Amendment creates a strong presumption against punishing protected speech even inadvertently, the balance need not always be struvk in that direction…” (411) § “the government as employer has far broader powers that the government as sovereign” (411) § gov’t has the right to fire its workers for “being rude to customers” or publicly speaking out vs congress · “the extra power the government has in this area comes from the nature of the government’s mission as employer” (412) § If employed by the gov’t and you get firedyou get fired by the for speaking out in an unprotected manner, it is the government acting as employer (not as government) who fires you · b/c its trying to be “effective and efficient” in providing services, and disrupting employees hinder that § Employers often rely on hearsay, past actions, etc—not sufficient for court, but fine for employment situations § Employer needs ot “reach its conclusion about what was said in good faith, rather than as a pretext” (413) § CONCLUSION: · Employer can only spend so much time deciding, he had several meetings with confirmations, and had done his background work (414) · **Under //Connick// Churchill’s speech was unprotected** o Even as a matte rof public interest, the potential disruptivness outweighed the 1st Amend value o “As a matter of law, this potential disruptiveness was enough to outweight whatever 1st Amend value the speech might have had” (414) · **still in question**: if Churchill was fired for the comments or something else that may have been protected (nondisruptive) by the 1st Amend

· //Garcetti v Ceballos (2006)// (cb417) o [] o [] o FACTS § Ceballos was a deputy DA in LA, where he got a phone call from a defense attorney that they were challenging some of the information in an affadavit used to obtain a warrant § Upon investigation, Ceballos noticed inconsistencies § The district decided to prosecute with the information anyways, despite memos and a heated discussion from Ceballos § After this, he was transferred positions and courthouses and denied a promotion § He sued under 1st and 14th Amendments · Defendants responded they were done for legitimate reasons like “staffing needs” and that Ceballos wasn’t protected under 1st for the memo’s contents o DECISION § District Court- finds for defendants (district) because his rights were not clearly established enough to be protected § Appeals Court- reversed, found it “protected speech” § USSC- **reverses** (again) and remands o DETAILS § Kennedy delivers opinion § “The Court has made clear that public employees do not surrender all their 1st Amendment rights by reason of their employment” § //Pickering// test: · 1) was employees speaking as a citizen about a matter of public concern? o No: no protect o Yes: possible protection · 2) did the gov’t entity have adequate justification for treating the employee differently o speech must have potential to “affect entity’s operations” “effectively and efficiently” in order to be limited (419) § Isn’t relevant that he spoke in the office—many citizens speak there, and the Court treats public employees like any member of society § **Because Ceballos was speaking in an official capacity when he wrote the memo, he was not speaking as a citizen** · It doesn’t matter if he derived satisfaction from it · “official communicatins have official consequences” (421) · MAJOR CAVEAT: employers cannot “restrict employee’s rights by creating excessively broad job descriptions” (422) § for the Court to decide otherwise would mean an intrusive role in the communication between government employees and their superiors § “We reject… the notion that the First Amendment shields from discipline the expressions employees make pursuant to their professinal duties” (422)

· //Keyishian v Board of Regents (1967)// (cb424) o [] o FACTS § University of Buffalo got rolled into SUNY · Part of the plan was to prevent to “appointment or retention of ‘subversive’ persons” § o DECISION § USSC reverses District Court opinion (says BoR couldn’t fire Keyishian) and remands o DETAILS § Justice Brennan delivers majority § Academic inquiry needs room to grow and flourish and “New York’s complicated and intricate scheme plainly violates that standard” (424) § Law deemed too far-reaching in its proscriptions § About the Communist party · Simply being a member is not enough to get you fired · You must have **“specific intent to further the unlawful aims**” beyond just being a member

Casebook, pp. 293-318 325-327 382-391
 * XIV. <span style="font-family: 'Times New Roman'; font-size-adjust: none; font-size: 7pt; font-stretch: normal; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal;"> ** ** Teacher Employment **

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