Law+Review+Notes+10+December

Law Review December 10, 2009

Major Themes

• Dewey v. Durkheim – Nov. 03 notes; exposure does not mean inculcation. From his article o Durkheim realizing school values for stability, in post-religious world, schools take on role of inculcation of core values. Values are key, schools disseminate those values. Applied as upholding authority of school boards. o Dewey – must prepare kids for citizenship and must inculcate values. citizenship is key. free expression, liberty, critical thinking, tolerance. Schools must not emphasize common core values, but rather individual capacities. • Legalization of Educational Environment & Process (becoming the norm, moving away from religion, etc.) • What changes at the school gate Student 1st Amendment Teacher 1st Amendment Due Process - spectrum • Teacher as: Citizen Employee Pedagogue - Boring • Political Socialization and reaction of parents, students, & teachers • 1st & 14th Amendment (Free Speech & Due Process) • Education as property

Week 7 – Educational Choice, Vouchers, Charters Gobitis – Jehovah’s Witness – did not need to salute flag because it was legal grounds and free speech & liberty, not religious

Week 8 – Student Free Expression During this time, tenor of changing politics on and off court bench Tinker – Students wanted to wear black armbands to petition the war. It was ruled that it was within the rights of free expression because it did not disrupt the school setting and administrators would not be able to predict that there would be disruption Cases after this modified this a little bit, esp. when free expression modified the curriculum. In the newspaper case, Hazelwood, students felt their free expression was limited when principal decided not to run pieces of the newspaper Lewd nomination speech for student government – suspension of that student was upheld eventually because it seemed inappropriate for the younger students who were exposed to the inappropriate content because it got mixed up with school teachings Planned parenthood wanted to advertise in a pamphlet handed out in football game – school’s decision not to include ad because student life experience all related to the curriculum, even though after school was upheld Bong hits for Jesus – fieldtrip at public rally – suspension was upheld/backed up because it was on school time & school sponsored, considered part of curriculum. Speech rights of public school students are not as extensive as adults. The highly protected standards set by Tinker would not apply

Week 10 – Political Socialization: Curriculum and Internet Issues Boring – Drama teacher with choosing racy play. She claim’s a violation of rights but it’s not because of curriculum. Decision making going to local authorities/employer, not teachers. Imprimatur – if it is something the school sponsors, the school does have a right to step in. Pico – 1982; Books being taken by the board from the library. Seven different opinions with no clear majority, partisanship was pretty clear. “transcendent imperatives of first amendment” – a key was that they took out books that they already had, rather than putting ones in. By taking them out, they are limiting the students, rather than selectively ordering, which they DO have a right to do. The “Pico Compromise.” The idea is that you’ve elected the school board to acknowledge plurality but they cannot remove things to violate free speech. Rebell: Brennan’s decision doesn’t make sense but has had a huge impact. “seeped into psychology of legal actions.” Constitutional right to information retrieval. Connection between Pierce and Pico (school has control over ed., but there is a limit. Don’t go overboard or we’ll come getcha.) Epperson – Anti-evolution statute, teaching creationism in the classroom. Vagueness of statute and clear intent of things, called on Meyer and Schemp. Left open question of balancing first amendment freedoms and the right to inculcate values. Meyer – Teaching a language other than German – pointing to academic freedom (1st part of semester with Pierce) Vergil – Academic freedom and governance to local authority

Week 11 – Discipline in the Schools

Dixon – Students protesting from Alabama. First due process case. Racial undertones. Needed to have statement of specific charges and grounds, a list of witnesses and facts, present their own defense, and if a hearing is not before a board directly, should be given a clear report. Goss v. Lopez – Suspended – ohio’s compulsory ed laws, kids have a right to education and suspension takes this away. First property case. Powell’s dissention is very important – slippery slope where everything can go to court. Goes back on precedent of Epperson. Ingraham – Paddling. Do you need due process? No.

Week 12 – Search and Seizure Drug use in school system. Discipline issues. Seeing sports related injuries they thought had to do with drug use. Issued random athlete drug test policy. Acton could not participate cause parents refused to consent. They weren’t intruding on privacy, etc. cause they were only looking for drugs. Upheld. Earls – Drug testing (same as above) but for everyone involved in any extra curricular. Also upheld. Did not have any sort of academic consequences from results. Do we check our rights at the schoolhouse gates? Carthage - found crack cocaine in his coat when looking for drugs in a locker check. If you’re there to open your locker for you, then you’re fine – but many kids didn’t show up during their “check time” and so he was in trouble – and school checked his coat as well as locker. He was expelled. Upheld school. TLO - - girl was smoking in bathroom, looked in her bag, found cigarettes and drug materials. Upheld school’s decision. Teacher as pedagogue/parent. Sticky because dissenting justices were unhappy because it makes every case so particular.

Week 13 – Teachers’ Freedom of Expression Do teachers have the right of free speech? Pickering - teacher’s rights were upheld. Wrote to paper how money was being used badly. Established “Pickering balancing test”. State can’t limit teacher’s freedom of speech unless there is a pedagogical (civic v. curricular) Doyle – teacher’s rights upheld. Guy called in to radio. If they hadn’t cited him calling radio station as a problem, this wouldn’t have been an issue. He does have the right to say whatever he wants to stay. Connick v. Meyers - wasn’t public interest. Lady was transferred/fired. Big issue: public interest. When there is public interest, employer does have a right to fire.

Week 13 - Teacher Employment Collective Bargaining Jersey Shore School District – Strike. Can school district place injunction when strike places danger on welfare of public? Yes, strike did place a danger, based on multiple factors. Texas State Teachers Assoc. v. Garland - Can union come on school grounds and advertise during school times? Yes, they can limit these things because school is not a public forum. Can talk about things in private conversation but can’t use school mail system. Abood - Can teachers be compelled to pay union dues (agency shop & free riders.) Yes, teachers do have to pay for what they were getting, whether or not they do not agree with political stuff, etc. Union can’t use dues for anything else but for collective bargaining. Entanglement? Chicago Teachers Union v. Hudson – Follow up to Abood. Board of Regents v. Roth - Hired for 1 yr by asst. professor was told he wouldn’t be rehired. Said infringed on 14th amendment rights, thought he was being punished for statements he made. Supreme Court says Roth does not have right to appeal.

Week 2 – Right to Education

Week 3 – Compulsory Education and the Pierce Compromise Pierce v. Society of Sisters – Consider - how Pierce is working out today. Have a right to school choice but gov’t has supervisory role. Meyer v. Nebraska – Teaching of German in 1923. (German was evil thing to teach.) Teacher won. Yoder - Amish ppl CAN exercise religion which trumps public compulsory education rules. And education will harm their beliefs.

Week 4 – State Regulation of Private Schools and Home Instruction If Ohio standards were too pervasive, what standards could apply? Be careful with word “equivalent” Farrington v. Tokushige – Enactment against teaching in languages other than English. FL school offered as supplement of regular schooling. Promoting “Americanism.” Regulations are super long – way overstepping. Xenophobic decision. Due process is engaged. Whisner – 1976 rights of states to impose rules on non-public education. Although court can’t argue against beliefs, had a problem with minimum standards. Lower courts thought minimum standards were too strict. Fellowship Baptist Church v. Benton – Wanted no regulation of teacher certification. Multi-part ruling. Amish exception was not applicable.

Week 5 – Prayer and Religious Rituals in the Schools Schempp – Penn. law requiring students to read 10 verses from Bible. Even though students were excused by parents, felt like they were being ostracized. Free exercise and establishment clauses. Lemon – What can gov’t do? Lemon Test: Gov’t practice must reflect clearly secular purpose, have primary effect that doesn’t hider or advance religion, must avoid excessive gov’t entanglement

Week 6 – State Funding of Religious Schools Lemon – What can gov’t do? Lemon Test: Gov’t practice must reflect clearly secular purpose, have primary effect that doesn’t hider or advance religion, must avoid excessive gov’t entanglement Zelman – Used Lemon Test – open avenue for vouchers

Week 7 – No Cases

Speculations: Teacher as pedagogue Strip-search (p. 263 of supplement) They said strip search was unreasonable – violated reasonability test. If this case had happened at time of TLO, would it still have been so much of an outrage? Changes in law according to political atmosphere, history, politics, composition of court – how one case builds on another. Girl claimed 4th amendment right violation -