Education and School Law Order

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LaMorte, Michael W. School Law: Cases and Concepts. Seventh Edition. ISBN-0-205-34284-1 2002-00-00 486p. Allyn & Bacon, A Pearson Education Company, 75 Arlington Street, Suite 300, Boston, MA 02116 ($96). Tel: 800-666-9433 (Toll Free); Web site: http://www.ablongman.com. Books (010) Information Analyses (070) MF02/PC20 Plus Postage. Civil Liberties; Constitutional Law; *Court Litigation; Due Process; Educational Finance; Elementary Secondary Education; Federal Government; Federal Legislation; Governance; Legal Problems; *Legal Responsibility; *Public Schools; School Desegregation; *School Law; State Church Separation; State Government; Student Rights; Teacher Rights

This book examines the sizable body of school law that outlines legally defensible decisions. A substantial part of it contains edited, reported, and verbatim decisions. Historical perspective is provided, as well as specific case and statutory law. Chapter 1 discusses sources of law for educators, state school board policies, attorneys-general opinions, and local school board policies. Chapter 2 examines the extent of a state’s and local school system’s authority. Chapter 3 considers student interests, including freedom of expression, discipline, privacy, appearance, pregnancy, and marriage. Chapter 4 examines teacher-related issues including nonrenewal and dismissal, freedom of expression, academic freedom, protesting, teacher bargaining, and political activities. Chapter 5 provides historical perspective for the issues of desegregation. Chapter 6 addresses the legal status of individuals with disabilities. Chapter 7 provides a historical perspective for legal attacks on the financing and adequacy of state school-finance plans. Chapter 8 addresses the extent of a school districts’ liability for damages. Appendices provide additional information enabling the reader to analyze court decisions, engage in legal research, or find educational law material on the Internet. Relevant sections of the U. S. Constitution and amendments, edited federal statutes significant to educators, and a glossary are also provided. (RKJ)

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INFORMATION CENTER (ERIC) 1

SEVENTH EDITION

SCHOOL LAW Cases and Concepts

MICHAEL W. LA MORTE

ALLYN AND BACON Boston London Toronto Sydney Tokyo Singapore

Series Editor: Arnis E. Burvikovs Editorial Assistant: Matthew Forster Production Coordinator: Susan Brown Marketing Manager: Kathleen Morgan Editorial-Production Service: Matrix Productions Cover Administrator: Kristina Mose-Libon Composition Buyer: Linda Cox Manufacturing Buyer: Julie McNeill

All rights reserved. No part of the material protected by this copyright notice may be reproduced or utilized in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, without the written permission of the copyright owner.

Library of Congress Cataloging-in-Publication Data

La Morte, Michael W. School law : cases and concepts / Michael W. La Morte.-7th ed.

p. cm. Includes index. ISBN 0-205-34284-1 1. Educational law and legislationUnited StatesCases. I. Title.

KF4118 L25 2001 344.73’07dc21 2001018205

Printed in the United States of America 10 9 8 7 5 4 3 2 1 05 04 03 02 01

ISBN 0-205-34284-1

780205 342846

Dedication

This book is dedicated to my grandfather, Heinrich Schroeder, the only truly politically brave person I have ever known personally. As a young boy living in Nazi Germany in the 1930s, I saw him constantly standing up to the Nazi regime by engaging in conduct that was not allowed by the au- thorities. This included clandestinely listening to the shortwave radio, publicly speaking up against Adolf Hitler and the Nazi regime, and refus- ing to salute the swastika or greet people with the mandatory “heil Hitler.” It should be remembered that this defiance took place during a period when Jewish or politically suspect neighbors disappeared and no one would dare inquire about their disappearance and when a young boy like me was questioned by the gestapo about his grandfather’s activities.

My grandfather refused to conform to the demands of a despotic to- talitarian regime and, as a result, although he was not a Jew, he was sent to a concentration camp. This incarceration was a high price to pay for stand- ing up for his political beliefs.

His example instilled a lifelong respect in me for the importance of living under the rule of law. Instilling students with this notion should be every educator’s goal. It is my hope that the information contained in this book will assist educators in that pursuit.

Contents

Table of Cases xiii

Preface xxiii

A Note to Users of This Text xxvii

1 Educational Governance: Sources of Law and the Courts 1

I. Sources of Law 3 A. Federal Level 3

1. Constitution and Amendments 3 a. Historical Perspective 3 b. Due Process and Equal Protection 5

(1) Due Process 6 (2) Equal Protection 8

2. Statutes 9 3. Case Law 10 4. Executive Orders and Attorney General Opinions 11

B. State Level 11 1. State Constitutions 11 2. State Statutes 12 3. Case Law 12 4. State Board of Education, Chief State School Officer,

and State Department of Education 13 5. Attorney General Opinions 13

C. Local Level 14 II. The American Judicial System 14

A. State Court Systems 15 B. Federal Court System 16

1. District Courts 16 2. Courts of Appeals 16 3. Supreme Court 16

6 v

vi Contents

2 Schools and the State 19

I. Compulsory Attendance 19 A. Satisfied by Parochial, Private, or Home

School Attendance 19 Pierce v. Society of Sisters 20 Notes and Questions 22

B. Regulation of Nonpublic Schools 24 C. Home Instruction 25 D. Admission Issues 28

II. Religion in the Schools 29 A. School-Sponsored Prayer and Bible Reading 29

1. Recitation of a State Prayer 30 Engel v. Vitale 30

2. Prayer and Bible Reading 35 School District of Abington Township v. Schempp and Murray v. Curlett 35 Notes and Questions 38

3. Prayers at Graduation Exercises and other Public School-Sponsored Activities 44 a. Prayer at Graduation Exercises 44 Lee v. Weisman 44 Notes and Questions 54 b. Prayer at Other Public School Activities 56

B. Equal Access 58 C. The Teaching of Evolution 61

Edwards v. Aguillard 61 Notes 65

D. Textbooks 66 E. Distribution of Religious Literature 68 F. Released and Shared Time and Religious Instruction 69 G. Religious Holidays 70 H. Suggested Guidelines Regarding Religion

in the Public Schools 71 III. Use of Facilities 74

Lamb’s Chapel v. Center Moriches Union Free School District 75 Notes and Questions 79

IV. Aid to Nonpublic Schools 82 V. School Fees 86

Hartzell v. Connell 86 Notes and Questions 89

VI. Health Services 90 A. Immunization 90

Berg v. Glen Cove City School District 90 Notes 92

B. Distribution of Condoms 93

Contents vii

3 Students and the Law 95

I. Freedom of Expression 96 A. The Tinker Doctrine 96

Tinker v. Des Moines Independent Community School District 96 Notes 103

B. Limiting the Tinker Doctrine 105 1. Nonpolitical Speech 105

Bethel School District No. 403 v. Fraser 105 Notes 110

2. School-Sponsored Expressive Activities 110 Hazelwood School District v. Kuhlmeier 111 Notes and Questions 115

C. Participation in Patriotic Exercises 117 Sherman v. Community School District 21 117 Notes and Questions 118

Suspension, Expulsion, and Disciplinary Transfer 120 A. Suspension 120

Goss v. Lopez 120 Notes and Questions 127

B. Expulsion 128 1. Public School Expulsion 128

Gonzales v. McEuen 128 Notes and Questions 131

2. Private School Expulsion 133 Allen v. Casper 134 Note 136

C. Disciplinary Transfer 137 III. Corporal Punishment 137

Ingraham v. Wright 138 Notes and Questions 142

IV. Search of Students and Lockers 143 A. Student Search 145

New Jersey v. T.L.O. 145 Notes and Questions 150

B. Search for Drugs and Weapons 150 C. Intrusive Search 152 D. Locker Search 154

V. Student Appearance 155 A. Dress 156 B. Uniforms 158 C. Grooming 160

VI. Pregnancy, Parenthood, and Marriage 162 VII. Participation in Extricurricular Activities 163

viii Contents

A. Legal Status of Extracurricular Activities 164 Palmer v. Merluzzi 164 Notes and Questions 167

B. Athletics 168 1. Married Students 169

Beeson v. Kiowa County School District RE-1 169 Notes and Questions 171

2. Gender Equity 171 VIII. School Punishment for Out-of-School Offenses 173

4 Teachers and the Law 176

I. Nonrenewal and Dismissal 176 Board of Regents of State Colleges v. Roth 177 Notes and Questions 181

II. Freedom of Expression 183 A. Tenured Teacher’s Public Expression 184

Pickering v. Board of Education of Township High School District 205 184 Notes 188

B. Nontenured Teacher’s Freedom of Expression 190 Mt. Healthy City School District Board of Education v. Doyle 190 Notes 194

III. Academic Freedom 194 A. Appropriate Material 195

Fowler v. Board of Education of Lincoln County 195 Notes and Questions 199

B. Political Speakers 204 Wilson v. Chancellor 204 Questions 209

IV Drug Testing 209 V. Personal Appearance 211

East Hartford Education Association v. Board of Education of Town of East Hartford 211 Notes and Questions 215

VI. Teacher as Exemplar 215 A. Homosexual Teacher 216

Gaylord v. Tacoma School District No. 10 217 Notes and Questions 224

B. Adulterous Teacher 227 Erb v. Iowa State Board of Public Instruction 227 Note 231

C. Criminal Activities 231 Gillett v. Unified School District No. 276 231 Notes 235

Contents ix

D. Impropriety with Students 236 Barcheski v. Board of Education of Grand Rapids Public Schools 236 Notes 240

VII. Employment Discrimination 240 A. B.

Notes 249 C. Pregnancy 250

Eckmann v. Board of Education of Hawthorn School District 251 Notes and Questions 254

D. Religious Discrimination 256 E. Age Discrimination 257

VIII. Teacher Bargaining 259 Lehnert v. Ferris Faculty Association 260 Notes 265

IX. Political Activities 266

Racial Discrimination 242 Sex Discrimination 245 Marshall v. Kirkland 246

5 School Desegregation 269

I. Historical Perspective 270 A. Separate but Equal Doctrine 270

Plessy v. Ferguson 270 Notes and Questions 278

B. De Jure Public School Segregation Unconstitutional (Brown I) 279 Brown v. Board of Education of Topeka 279 Notes and Questions 283

C. Implementation (Brown II) 283 Brown v. Board of Education of Topeka 284 Notes and Questions 285

Early Desegregation in the South 286 Desegregation in the Non-South 287 A. Intentional Segregative Action 288 B. Interdistrict Integration 289

Sheff v. O’Neill 290 IV. Current Desegregation Issues 296

A. Release from Court Order 296 B. Race-Related Placement 299

1. Magnet Schools 299 2. Weighted Lottery 301

V. Epilogue 302

1 0

Contents

6 Individuals with Disabilities and the Law 305

I. The Individuals with Disabilities Education Act 307 A. Eligibility 307 B. Identification and Evaluation of Students 308 C. Substantive Educational Rights 309

Board of Education of the Hendrick Hudson Central School District v. Rowley 309 Notes and Questions 315

D. Individualized Education Programs 316 E. Appropriate Placements 316 F. Related Services 319 G. Procedural Protections 320 H. Discipline 322

Summary 328 I. Transition Services 329 J. Graduation and Competency Exams 330

K. Cost Issues 330 Notes and Questions 331

II. Section 504 of the Rehabilitation Act 332 A. Students and Section 504 333

Thomas v. Atascadero Unified School District 335 Notes 339 Grube v. Bethlehem Area School District 340 Note 343

B. Employees and Section 504 343 III. The Americans with Disabilities Act 345

7 School Finance and School Choice Issues 346

I. School Finance Reform 346 A. Background 346 B. Early Decisions 348 C. Fiscal Neutrality 348 D. Rodriguez 349

San Antonio Independent School District v. Rodriguez 350 Notes and Questions 359

E. Post-Rodriguez Litigation 359 1. Decisions Upholding State Finance Provisions 360 2. Decisions Effecting Reform 361

Rose v. Council for Better Education 362 Notes 369

1 1

Contents xi

II. Choice 370 A. Choice Plans 370

1. Public School Inter- and Intradistrict Open Enrollment 370

2. Interdistrict Specialized Schools and Plans 371 3. Voucher Plan 371 4. Charter Schools 375 5. Private Contractors 376 6. Tuition Tax Credits 376

B. Legal Implications 377 Listing of Selected School Finance-Related Cases 379

8 Educator and School District Liability 383

I. School District Immunity 383 A. Liability under State Law 383 B. Liability under Federal Law 385

1. Liability under 42 U.S.C. § 1983 385 Wood v. Strickland 385 Notes and Questions 390 Carey v. Piphus 391

2. Damages under Title IX 395 a. Teacher-to-Student Harassment 395

Gebser v. Lago Vista Independent School District 395 Notes 399

b. Student-to-Student Harassment 400 Davis v. Monroe County Board of Education 400 Question 405

II. Educator Liability 405 A. Intentional Torts 405 B. Negligence 406

1. Duty of Care 406 2. Standard of Care 406 3. Proximate Cause 407 4. Actual Loss or Injury 407

C. Defenses for Negligence 407 III. Duties of Supervision 408

A. Before and after School 408 B. During School Hours 410 C. Off-Campus Activities 411

IV. Parental Consent 412 V. Malpractice 412

VI. Insurance 414 Questions 414

xii Contents

APPENDIX AAnalyzing a Court Decision 415 APPENDIX BAn Introduction to Research in School Law 418 APPENDIX CThe Constitution of the United States

of AmericaEdited 429 APPENDIX DStatutory Material 435

Title VII of the Civil Rights Act of 1964P.L. 88-352 435 Pregnancy Discrimination Act of 1978EL. 95-555 437 Age Discrimination in Employment Act of 1967 P.L. 90-202 438 Age Discrimination in Employment Act Amendments of 1978P.L. 95-256 439 Age Discrimination in Employment Act Amendments of 1986P.L. 99-592 439 Title IX of the Education Amendments of 1972 P.L. 92-318 440 Section 504 of the Rehabilitation Act of 1973P.L. 93-112 441 Family Educational Rights and Privacy Act of 1974 P.L. 93-380 441 Equal Access Act of 1984 P.L. 98-377 443 Civil Rights-42 U.S.C. §1981-1983 445

Glossary 447

Index 453

1 3

Table of Cases*

Abbott v. Burke 380 Able v. U.S. 226 Abood v. Detroit Bd. of Educ. 266 Acanfora v. Bd. of Educ.

of Montgomery County 224 Agostini v. Felton 84, 85 Aguilar v. Felton 84 Albach v. Olde 167 Alexander v. Holmes County Bd.

of Educ. 287 Allegheny County v. American Civil

Liberties Union 42 Allen v. Casper 134 Altman v. Bedford Central

School Dist. 41 Ambach v. Norwick 182 Anderson v. Creighton 391 Andrews v. Drew Municipal Separate

School Dist. 254 Ansonia Bd. of Educ. v. Philbrook 256 Avery v. Homewood City Bd.

of Educ. 254

B. M. v. Montana 414 Bacon v. Bradley-Bourbonnais

H.S. Dist. 69 Bagley v. Raymond School

Dept. 374 Bailey v. Truby 168 Bangor Baptist Church v. Maine 24 Barber v. Colorado Indep.

School Dist. 161 Barbier v. Connolly 8 Barcheski v. Bd. of Educ. of Grand

Rapids Pub. Schools 236 Barnes v. Bott 408 Bartell v. Palos Verdes Peninsula

School Dist. 409 Battles v. Anne Arundel County Bd.

of Educ. 27 Bauchman v. West H.S. 201

Note: Edited cases are indicated by boldface.

Beaufort County Bd. of Educ. v. Lighthouse Charter School Comm. 375

Beeson v. Kiowa County School Dist. RE-1 169

Belk v. Charlotte-Mecklenburg Bd. of Educ. 301

Bell v. U-32 Bd. of Educ. 116 Bensalem School Dist.

v. Pennsylvania 381 Berg v. Glen Cove City

School Dist. 90 Bethel School Dist. No. 403

v. Fraser 105 Beussink v. Woodland R-IV

School Dist. 104 Bishop v. Colaw 161 Bismarck Pub. School Dist. No. 1

v. State 381 Bivens v. Albuquerque Pub.

Schools 157 Blaine v. Bd. of Educ., Haysville Unified

School Dist. No. 261 161 Blase v. Illinois 379 Blessing v. Mason County Bd.

of Educ. 28 Bluestein v. Skinner 210 Bd. of Educ., Island Trees Union Free

School Dist. No. 26 v. Pico 203 Bd. of Educ., Levittown Union Free

School Dist. v. Nyquist 381 Bd. of Educ. of City School Dist.

of Cincinnati v. Walter 381 Bd. of Educ. of the Hendrick

Hudson Central School Dist. v. Rowley 330

Bd. of Educ. of Long Beach Unified School Dist. v. Jack M. 224

Bd. of Educ. of Oklahoma City Pub. Schools v. Dowell 297

x iv Table of Cases

Bd. of Educ. of the Town of Stafford v. State Bd. of Educ. 85

Bd. of Educ. of the Westside Community Schools v. Mergens 59

Bd. of Regents of State Colleges v. Roth 177

Bob Jones Univ. v. U.S. 86 Boring v. Buncombe County Bd.

of Educ. 200 Boyd v. Harding Academy

of Memphis, Inc. 255 Bradley v. Pittsburgh Bd.

of Educ. 201 Brands v. Sheldon Community

School 168 Brayton v. Monson Pub. Schools 189 Breen v. Kahl 161 Breese v. Smith 161 Breitling v. Solenberger 131 Brigham v. State 382 Britt v. North Carolina State Bd.

of Educ. 382 Bronx Household of Faith v. Community

School Dist. No. 10 80 Brookhart v. Illinois State Bd.

of Educ. 330 Brosnan v. Livonia Pub. Schools 414 Broward County School Bd.

v. Ruiz 411 Brown v. Bathke 254 Brown v. Bd. of Educ. of Topeka

(Brown I) 242, 269, 279, 289, 302 Brown v. Bd. of Educ. of Topeka

(Brown II) 284, 289 Brown v. Bd. of Educ. of Topeka

(Brown III) 298 Brown v. Bd. of Educ. of Topeka

(Brown IV) 298 Brown v. Hot, Sexy and Safer

Productions, Inc. 201 Brown v. Stone 92 Brown v. Unified School District

No. 501 298 Brown v. Woodland Joint Unified

School Dist. 202 Brunelle v. Lynn Pub, Schools 26 Buckley v. Archdiocese of Rockville

Center 400 Burruss v. Wilkerson 348 Burton v. Cascade School Dist.

Union H.S. No. 5 224 Buse v. Smith 382

1 5

Caldwell v. Cannady 174 Calendra v. State College Area School

Dist. 93 California Federal Savings and Loan

Ass’n v. Guerra 255 Cameron v. Bd. of Educ. of Hillsboro,

Ohio City School Dist. 255 Campbell County School Dist. v. State

382 Capitol Square Review and Advisory Bd.

v. Pinette 43 Cardiff v. Bismarck Pub. School

Dist. 89 Carey v. Piphus 385, 391 Carrollton-Farmers Branch Indep.

School Dist. v. Edgewood Indep. School Dist. 382

Cary v. Bd. of Educ. of AdamsArapahoe School Dist. 28-J 203

Castle v. Colonial School Dist. 268 Cedar Rapids v. Garret F. 320 Ceniceros v. Bd. of Trustees of the San

Diego Unified School Dist. 60 Chalk v. U.S. Dist. Court 344 Chandler v. Miller 210 Cheema v. Thompson 43 Chicago Teachers Union Local No. 1

v. Hudson 266 Chipman v. Grant County School

Dist. 163 Chittenden Town School Dist. v. Dept.

of Educ. 374 Citizens Concerned for Separation of

Church and State v. City and County of Denver 41

City of Boerne v. Flores 43 City of Pawtucket v. Sundlun 381 Claremont School Dist.

v. Governor 380 Clark v. Huntsville City Bd.

of Educ. 244 Clark v. Shoreline School Dist.

No. 412 344 Clements v. Bd. of Trustees of the

Sheridan County School Dist. No. 2 174

Cleveland Bd. of Educ. v. La Fleur 250 Clonlara Inc. v. State Bd.

of Educ. 26 Clyde K. v. Puyallup School Dist. 326 Coalition for Adequacy and Fairness in

School Funding, Inc. v. Chiles 379

Coalition for Economic Equity v. Wilson 303

Coalition for Equitable School Funding, Inc. v. State 381

Cochran v. Chidester School Dist. 254

Colin ex. rel. Colin v. Orange Unified School Dist. 60

Columbus Bd. of Educ. v. Penick 289 Comm. for Educational Rights

v. Edgar 379 Comm. for Pub. Educ. and Religious

Liberty v. Nyquist 83, 85 Comm. for Pub. Educ. and Religious

Liberty v. Regan 83 Commonwealth v. Cass 155 Commonwealth v. Douglass 143 Connick v. Myers 188, 200, 225 Cooper v. Aaron 286 Cooper v. Eugene School Dist.

No. 4J 257 Cordrey v. Euckert 316 Cornfield v. Consolidated H.S. Dist.

No 230 153 Cox v. Dardanelle Pub. School

Dist. 189 Craig v. Selma City School Bd. 127 Crockett v. Sorenson 70 Cunico v. Pueblo School Dist. 244 Curtis v. School Comm.

of Falmouth 93

D.B. v. Clarke County Bd. of Educ. 132

Dailey v. Los Angeles Unified School Dist. 410

Dale v. Bd. of Educ., Lemmon Indep. School Dist. 66

Dallam v. Cumberland Valley School Dist. 167

Danson v. Casey 381 Davis v. Monroe County Bd.

of Educ. 400 Day v. South Park Indep.

School Dist. 189 De Michele v. Greenburgh Central

School Dist. No. 7 240 Dennin v. Connecticut Interscholastic

Ath. Conf 343 DeRolph v. State 381 Dibortolo v. Metropolitan School Dist.

of Washington Township 410

Table of Cases xv

Dickens v. Johnson County Bd. of Educ. 127

Dickey v. Robinson 381 Dike v. School Bd. of Orange

County 255 diLeo v. Greenfield 182 Dist. 27 Community School Bd.

v. Bd. of Educ. of the City of New York 339

Doe v. Renfrow 154 Donohue v. Copiague Union Free School

Dist. 413 Drake v. Covington County Bd.

of Educ. 254 Dubuclet v. Home insurance Co. 235 Dupree v. Alma School Dist.

No. 30 379 Duro v. Dist. Attorney, Second Judicial

Dist. of North Carolina 23 Durso v. Taylor 127

East Hartford Educ. Ass’n v. Bd. of Educ. of Town of East Hartford 211

East Jackson Pub. Schools v. Michigan 380

Eckmann v. Bd. of Educ. of Hawthorn School Dist. 251

Ector County Indep. School Dist. V. Hopkins 173

Edgewood Indep. School Dist. v. Kirby 382

Edgewood Indep. School Dist. v. Meno 382

Edwards v. Aguillard 61 Eisenberg v. Montgomery County Pub.

Schools 299 Employment Div., Dept. of Human

Resources of Oregon v. Smith 43 Engel v. Vitale 30 Epperson v. Arkansas 65 EEOC v. Kamehameha Schools/Bishop

Estate 257 EEOC v. READS, Inc. 257 Erb v. Iowa State Bd. of Pub.

Instruction 227 Estate of Thornton v. Caldor, Inc. 256 Everson v. Bd. of Educ. of Township

of Ewing 85

Fair School Finance Council of Oklahoma v. Oklahoma 381

xvi Table of Cases

Fairfax Covenant Church v. Fairfax City School Bd. 81

Farver v. Bd. of Educ. 167 Farrington v. Tokushige 24 Felter v. Cape Girardeau School

Dist. 19 Ferrell v. Dallas Indep. School

Dist. 160 Firefighters Local Union No. 1784

v. Stotts 242 Fleischfresser v. Directors of School

Dist. 200 202 Florey v. Sioux Falls School Dist. 41 Ford v. Manuel 81 Fowler v. Bd. of Educ. of Lincoln

Counhy 195 Fowler v. Williamson 158 Franklin v. Gwinnett County

Schools 395 Freeman v. Flake 160 Freeman v. Pitts 297 Freiler v. Tangipahoa Parish Bd.

of Educ. 66 Fyfe v. Curlee 245

Garcia v. Miera 142 Garnett v. Renton School Dist.

No. 403 60 Gaylord v. Tacoma School Dist.

No. 10 217 Gebser v. Lago Vista Indep. School

Dist. 395 General Electric Co. v. Gilbert 250 Georgia Ass’n of Retarded Citizens v.

McDaniel 315 Gillett v. Unified School Dist. No.

276 231 Gish v. Bd. of Educ. of the Borough of

Paramus 224 Givhan v. Western Line Consolidated

School Dist. 189 Glover v. Williamsburg Local School

Dist. Bd. of Educ. 225 Goetz v. Ansell 119 Gong Lum v. Rice 278 Gonzales v. McEuen 128 Gonzalez v. California State Personnel

Bd. 345 Good News/Good Sports Club v. School

Dist. of the City of Ladue 80 Good News Club v. Milford Central

School 80

1 7

Gosche v. Calvert High School 231 Gosney v. Sonora Indep. School

Dist. 182 Goss v. Lopez 120 Gould v. Orr 380 Grand Rapids School Dist. v. Ball 84 Grant of Charter School Application of

Englewood on the Palisades Charter School 375

Green v. County School Bd. of New Kent County 286

Gregoire v. Centennial School Dist. 80

Griffin v. County School Bd. of Prince Edward County 286

Grigg v. Virginia 26 Griggs v. Duke Power Co. 243 Grove City Coll. v. Bell 249 Grube v. Bethlehem Area School

Dist. 340 Guyer v. School Bd. of Alachua

County 41

Haddle v. Garrison 183 Hall v. Shelby County Bd.

of Educ. 81 Hampton v. Orleans Parish

School Bd. 416 Harlow v. Fitzgerald 391 Harper v. Edgewood Bd. of Educ. 158 Harrah Indep. School Dist.

v. Martin 182 Hartzell v. Connell 86 Hazelwood School Dist.

v. Kuhlmeier 105, 111, 200, 203 Heard v. Payne 93 Hearn v. Savannah Bd. of Educ. 210 Helena Elem. School Dist. No. I

v. Montana 380 Heller v. Hodgin 110 Hennessy v. Webb 384 Herndon v. Chapel HillCarrboro City

Bd. of Educ. 104 Hernandez v. Don Bosco Preparatory

High 137 Hines v. Caston School Corp. 157 Holmes v. Bush 374 Honig v. Doe 323, 324, 326 Hopwood v. Texas 303 Hornbeck v. Somerset County Bd. of

Educ. 380 Horton v. Meskill 379

Hot Springs County School Dist. No. 1 v. Washakie County School Dist. No. / 382

Howard v. Missouri State Bd. of Educ. 240

Hoyem v. Manhattan Beach City School Dist. 411

Hsu v. Roslyn Union Free School Dist. No. 3 60

Hunter v. Bd. of Educ. of Montgomery County 413

IBEW Local 1245 v. Skinner 210 Idaho Schools for Equal Educational

Opportunity v. Evans 379 Immediato v. Rye Neck School

Dist. 104 In re Grossman 216 Indep. School Dist. No. 8 of Seiling

v. Swanson 161 Ingraham v. Wright 138 Irving Indep. School Dist.

v. Tatro 319 Isaacs ex. rel. Isaacs v. Bd. of Educ.

of Howard County 158 Isiah B. v. State 155

Jackson v. Benson 372 Jackson v. Dorrier 160 Jacobson v. Cincinnati Bd.

of Educ. 243 Jantz v. Muci 224 Jefferson v. Ysleta Indep. School

Dist. 143 Jefferson County School Dist. R-1

v. Justus 409 Jeglin v. San Jacinto Unified School

Dist. 156 Jenkins v. Missouri 297, 298 Jenkins v. Talladega City Bd.

of Educ. 153 Jepsen v. Florida Bd. of Regents 249 Johnson v. Ouachita Parish Police

jury 408 Johnson v. Pinkerton Academy 190 Jonathan G. v. Caddo Parish

School Bd. 334 Jordan v. School Dist. of City

of Erie 137

Kadrmas v. Dickinson Pub. Schools 90

Table of Cases xvi i

Kansas v. Stein 154 Kari v. Jefferson County School

Dist. 236 Keyes v. School Dist. No. / 289 Kimble v. Worth County R-HI Bd.

of Educ. 235 Kimel v. Florida Bd. of Regents 258 King v. Saddleback Junior Coll.

Dist, 160 Kinsey v. Salado Indep. School

Dist. 189 Knights of the Ku Klux Klan v. East Baton

Rouge Parish School Bd. 81 Knowles v. Bd. of Educ. 240 Knox County Educ. Assn. v. Knox

County Bd. of Educ. 209 Koenick v. Felton 71 Kraus v. Bd. of Educ. of the City

of Jennings 377 Kukor v. Grover 161 Kotterman v. Killian 382

Labrosse v. Saint Bernard Parish School Bd. 132

Lacks v. Ferguson Reorganized School Dist. R-2 200

Lamb v. Panhandle Community Unit School Dist. No. 2 127

Lamb’s Chapel v. Center Moriches Union Free School Dist. 75

Landstrom v. Illinois Dep’t. of Children and Family Services 154

Lanner v. Wimmer 69 League of United Latin American

Citizens v. Wilson 28 Leandro v. State 381 Lee v. Weisman 39, 44, 56, 377 Lehnert v. Ferris Faculty Ass’n 260 Lemon v. Kurtzman 82 Levitt v. Comm. for Pub. Educ.

and Religious Liberty 82 Lipp v. Morris 118 Lipsman v. New York City Bd.

of Educ. 160 Livingston School Bd. v. Louisiana

State Bd. of Educ. 380 Local Organizing Comm., Million

Man March v. Cook 80 Lujan v. Colorado State Bd. of

Educ. 379 Lynch v. Donnelly 42 Lyons v. Penn Hills School Dist. 133

xviii Table of Cases

Madera v. Bd. of Educ. of the City of New York 137

Maine v. Thiboutot 391 Malnak v. Yogi 70 Marbury v. Madison 17 Marsh v. Chambers 42 Marshall v. Kirkland 246 Matanuska-Sustina Borough School

Dist. v. State 379 Martinez v. School Bd. of Hillsborough

County 339 Martinez v. School Dist. No. 60 150 Massie v. Henry 160 Matter of McMillan 24 May v. Evansville-Vanderburgh School

Corp. 257 Mazanec v. North Judson-San Pierre

School Corp. 26 Mazevski v. Horseheads Central School

Dist. 168 McCann v. Fort Zumwalt School

Dist. 115 McClung v. Bd. of Educ. of City of

Washington C.H. 116 McCollum v. Bd. of Educ. of School Dist.

No. 71 69 McConnell v. Anderson 224 McDaniel v. Thomas 379 McDuffy v. Sec’y of the Exec. Office

of Educ. 380 McInnis v. Ogilvie 380 McInnis v. Shapiro 380 McLean Indep. School Dist.

v. Andrews 173 McNaughton v. Circleville Bd.

of Educ. 173 Meek v. Pittenger 83, 85 Members of the Jamestown School

Comm. v. Schmidt 85 Metzl v. Leininger 71 Milliken v. Bradley (Milliken I) 289 Milliken v. Bradley (Milliken II) 290 Milliken v. Green 380 Mills v. Bd. of Educ. of the Dist.

of Columbia 306, 323 Missouri ex rel. Gaines

v. Canada 279 Missouri v. Jenkins 297 Mitchell v. Helms 84 Monell v. Dep’t. of Social Services of

City of New York 390 Monnier v. Todd County Indep. School

Dist. 258

Monroe v. Pape 391 Montana v. Bd. of Trustees of School

Dist. No. / 203 Monteiro v. Tempe Union High School

Dist. 267 Montgomery v. Carr 168 Moore v. Knowles 240 Morrison v. State Bd. of Educ. 224 Mozert v. Hawkins County Bd.

of Educ. 67 Mt. Healthy City School Dist. Bd.

of Educ. v. Doyle 184, 190, 200 Mueller v. Allen 376 Muka v. Sturgis 41 Muller v. Jefferson Lighthouse

School 68 Murray v. Curlett 35 Murray v. Pittsburgh Bd. of Pub.

Educ. 201

Nat’l Gay Task Force v. Bd. of Educ. of Oklahoma City 225

Nat’l Socialist White People’s Party v. Ringers 81

Nat’l Treasury Employees’ Union v. Von Raab 210

Nebraska v. Faith Baptist Church 24 Neuhaus v. Federico 161 New Jersey v. Massa 25 New Jersey v. T.L.O. 145 New Life Baptist Church Academy v.

Town of East Long Meadow 25 New Mexico State Bd. of Educ.

v. Stoudt 254 New York State Ass’n for Retarded

Children v. Carey 339 Newport News Shipbuilding and Dry

Dock Co. v. EEOC 254 North Dakota v. Rivinius 25 North Dakota v. Shaver 25 North Haven Bd. of Educ. v. Bell 249 Northshore School Dist. No. 417

v. Kinnear. 282 Null v. Bd. of Educ. 26

Olesen v. Bd. of Educ. 157 Olsen v. Oregon 381 Opinion of the Justices 379 Owen v. City of Independence 391

Packer v. Bd. of Educ. 132 Palmer v. Bd. of Educ. ,of the City

of Chicago 194

Palmer v. Merluzzi 164 Parents United for Better Schools,

Inc. v. School Dist. of Philadelphia 94

Patsy v. Bd. of Regents of Florida 391 Pauley v. Bailey 382 Pauley v. Kelly 382 Paulson v. Minidoka County School

Dist. No. 331 89 Peck v. Upshur County Bd.

of Educ. 68 Pegram v. Nelson 167 Peloza v. Capistrano Unified School

Dist. 66 Pennsylvania Ass’n for Retarded

Children v. Pennsylvania 306, 323 People v. Bennett 26 People v. DeJonge 26 Perry v. Sindermann 182 Peter W. v. San Francisco Unified School

Dist. 412 Pfeiffer v. Marion Center Area School

Dist. 163 Phillips v. Anderson County School

Dist. 157 Phoenix Elem. School Dist. No. 1 v.

Green 160 Picarella v. Terrizzi 154 Pickering v. Bd. of Educ. of Township

H.S. Dist. 205 184 Pierce v. Society of Sisters 20 Planned Parenthood v. Clark County

School Dist. 116 Plessy v. Ferguson 270 Plyler v. Doe 28 Poe v. Hamilton 413 Police Dep’t. of the City of Chicago v.

Mosley 74 Poling v. Murphy 110 Ponton v. Newport News School

Bd. 254 Pub. Funds for Pub. Schools of New

Jersey v. Byrne 85 Pyle v. South Hadley School

Comm. 157

R.R. v. Bd. of Educ. of the Shore Regional H.S. Dist. 174

Raleigh v. Indep. School Dist. No. 625 411

Reed v. Rhodes 298 Reform Educational Financing Inequities

Today v. Cuomo 381

Table of Cases xix

Richard v. St. Landry Parish School Bd. 409

Richards v. Thurston 160 Ring v. Grand Forks School Dist.

No. 1 41 Roberts v. Madigan 67 Roberts v. Van Buren Pub.

Schools 189 Robinson v. Cahill 381 Romans v. Crenshaw 171 Romer v. Evans 226 Roncker v. Walter 331 Roosevelt Elem. School Dist. No. 66

v. Bishop 379 Rose v. Council for Better Educ.

362, 380 Rowell v. State 152 Rowland v. Mad River School Dist.

225 Rucker v. Colonial School Dist. 132 Rupp v. Bryant 411 Russo v. Central School Dist.

No. 1 194

S. v. Bd. of Educ., San Francisco Unified School Dist. 174

Salazer v. Honig 90 San Francisco NAACP v. San Francisco

Unified School Dist. 301 Santa Fe Indep. School Dist. v.

Doe 39, 40, 56 San Antonio Indep. School Dist.

v. Rodriguez 350, 382 San Diego Comm. against Registration

and the Draft v. Governing Bd. of Grossmont Union H.S. Dist. 116

Scarnato v. Parker 359, 380 Schafer v. Bd. of Educ. of

Pittsburgh 250 School Admin. Dist. No. 1 v. Commis-

sioner, Dep’t. of Educ. 380 School Bd. of Nassau County

v. Arline 343 School Dist. of Abington Township

v. Schempp 35 School Dist. of Wilkinsburg v.

Wilkinsburg Educ. Assn. 376 Scott v. Commonwealth 382 Seattle School Dist. No. 1 of King

County v. Washington 382 Seemuller v. Fairfax County

School Bd. 189 Serrano v. Priest 348, 379

2 0

xx Table of Cases

Sheff v. O’Neill 290 Sherman v. Communihy School

Dist. 21 117 Shofstall v. Hollins 379 Simmons-Harris v. Goff 273 Simmons-Harris v. Zelman 273 Shumway v. Albany County School

Dist. No. 1 Bd. of Educ. 79 Skeen v. State 380 Skinner v. Railway Executives’

Ass’n. 210 Sloan v. Lemon 83 Smith v. Bd. of School Commissioners

of Mobile County 67 Smith v. West Virginia State Bd. of

Educ. 142 Snyder v. Charlotte Pub. School

Dist. 70 South Carolina Richland County

v. Campbell 381 Spring Branch Indep. School Dist.

v. Stamos 168 Springdale School Dist. v. Grace 330 Stanton v. Brunswick School

Dep’t. 116 State v. Chafin 382 State v. Rivera 26 State Bd. for Elem. and Sec. Educ.

v. Howard 268 State ex rel. Woodahl v. Straub 380 Steirer v. Bethlehem Area School

Dist. 104 Stewart v. Baldwin County Bd.

of Educ. 390 Stoddard v. School Dist. No. 1 182 Stone v. Graham 41 Strout v. Albanese 374 Swann v. Charlotte-Mecklenburg Bd.

of Educ. 287 Swanson v. Guthrie Indep. School

Dist. No. I-1 27 Sweatt v. Painter 279 Sweezy v. New Hampshire 6

Taborn v. Hammonds 182 Taxman v. Bd. of Educ. of Township

of Piscataway 242 Tennessee Small School Systems

v. McWherter 381 Texas v. Johnson 119 Texas v. Project Principle 245 Texas City Indep. School Dist.

v. Jorstad 324

Thomas v. Atascadero Unified School Dist. 335

Thomas v. Washington County School Bd. 244

Thomasson v. Perry 226 Thompson v. Carthage School

Dist. 152 Thompson v. Engelking 379 Tibbs v. Bd. of Educ. of the Township

of Franklin 173 Timothy v. Rochester School

Dist. 315 Tinker v. Des Moines Indep.

Community School Dist. 96 Titus v. Lindberg 409 Todd v. Rush County Schools 151 Trinity United Methodist Parish

v. Bd. of Educ. of the City School Dist. of Newburgh 80

Truelove v. Wilson 384 Tudor v. Bd. of Educ. of Borough

of Rutherford 68 Tuttle v. Arlington County

School Bd. 301 Tyler v. Hot Springs School Dist.

No. 6 245

Unified School Dist. No. 229 v. State 380

Unified School Dist. No. 501 v. Smith 298

U.S. v. Bd. of Educ. for the School Dist. of Philadelphia 256

U.S. v. Eichman 119 U.S. v. LULAC 245 U.S. v. South Carolina 245 United Teachers of New Orleans

v. Orleans Parish School Bd. 210

Van Dusartz v. Hatfield 389 Vernonia School Dist. 47J

v. Acton 151 Vincent v. Voight 382 Virgil v. School Bd. of Columbia

County 203

Wagenblast v. Odessa School Dist. 412

Wallace v. Jaffree 39 Wards Cove Packing Co.

v. Atonio 243 Warren v. Nat’l Ass’n of Secondary

School Principals 173

Washakie County School Dist. No. 1 v. Herschler 382

Washegesic v. Bloomingdale Pub. Schools 40

Weaver v. Nebo School Dist. 225 Webb v. McCullough 150 Webster v. New Lenox School

Dist. 66 Wessmann v. Gittens 300 West v. Derby Unified School

Dist. 104 West Virginia State Bd. of Educ.

v. Barnette 119 Wiley v. Franklin 70 Williams v. Ellington 153 Willis v. Anderson Community School

Corp. 151

Table of Cases xxi

Willoughby v. Lehrbass 419 Wilson v. Chancellor 204 Wimberly v. Labor and Industrial Rela-

tions Comm’n of Missouri 255 Wisconsin v. Yoder 23 Withers v. State 381 Wolman v. Walter 83, 85 Wood v. Strickland 385 Wygant v. Jackson Bd. of Educ. 243

Yeo v. Town of Lexington 116

Zamora v. Pomeroy 137 Zobrest v. Catalina Foothills School

Dist. 318 Zorach v. Clauson 69 Zweite!’ v. Joint Dist. No. 1 28

2 2

Preface

Public school educators are aware that courts play a significant role in es- tablishing educational policy. Decisions, especially by the federal judiciary over the last fifty years, in such areas as school desegregation, separation of church and state, freedom of expression, student rights, individuals with disabilities, and personnel issues attest to the extent and magnitude of ju- dicial influence. Foremost among the many reasons for the increased court involvement during these years has been the perception, especially by those who perceive they are being treated unfairly by governmental action, that the judiciary was a receptive and efficacious branch of government.

Judicial activity has produced a sizable body of school law with which educators should be familiar if they wish to conduct themselves in a legally defensive manner. Those educators who fly by the seat of their pants or who act on the basis of what they think the law “should be” may be in difficulty if sufficient thought is not given to the legal implications and ramifications of their policies or conduct. Consequently, this text pro- vides introductory material for those educators and laypersons interested in K-12 educational issues, who have little or no knowledge of, or back- ground in, school law. This group would include teachers, school admin- istrators, school board members, preservice teachers, and public school students and their families.

It would be difficult for a one-volume work to cover all of the signif- icant topics in school law. Therefore, this text attempts to emphasize school law issues having direct impact at the school-building level. When appropriate, a historical perspective is provided in addition to case and statutory law.

Chapter 1 offers sufficient background to facilitate comprehension of succeeding chapters. Included in this chapter is a discussion of topics of underlying importance with which educators may be unfamiliar: the legal significance of the sources of law under which educators operate, federal and state constitutions, federal and state statutes, state school board policy, attorney general opinions, local school board policy and local school pol- icy, the significance of the Fourteenth Amendment’s Due Process and Equal Protection provisions as a basis for many school lawsuits, the im- portance of case law in establishing educational policy, and the organiza- tion of the American dual court system.

xxiv Preface

Chapter 2 examines the extent of the state’s and local school system’s authority when patrons disagree with educational policy. A reading of the court decisions in this chapter reveals the judiciary’s attempt to establish a balance between the legitimate demands or objections of individuals to- ward education policy and school authorities’ perception of their responsi- bility to the greater population. School law issues selected to illuminate this area include compulsory school attendance, religion in the schools, use of school facilities, aid to nonpublic schools, school fees, and health services.

This writer has found that issues pertaining to students and teachers are of particular interest to school law students; therefore, Chapters 3 and 4, which address these topics, comprise a major portion of the text. Chap- ter 3 presents material pertinent to student interests, such as freedom of expression; suspension, disciplinary transfer, and expulsion; corporal pun- ishment; search of students; student appearance; pregnancy, parenthood, and marriage; participation in extracurricular activities; and school pun- ishment for out-of-school offenses. Chapter 4 examines such teacher- related issues as nonrenewal and dismissal; freedom of expression; academic freedom; drug testing; dress; the teacher as an exemplar; em- ployment discrimination based on race, sex, pregnancy, religion, and age; teacher bargaining; and political activities of teachers.

Chapter 5 provides a historical legal perspective to the issues of school desegregation. Early desegregation efforts in the South and more recent desegregation endeavors in non-Southern states are examined. Such current issues as the release from desegregation court orders and the race-related placement of students are also reviewed.

Chapter 6, written by Professor John Dayton, addresses the legal status of individuals with disabilities. Historical perspective is provided for this im- portant area of school law in addition to an in-depth examination of major legislation and court decisions. Emphasis is given to the Individuals with Disabilities Education Act, the 1997 Amendments, and the 1999 regulations.

Chapter 7 provides a historical perspective to the legal attacks on the financing and adequacy of state school finance plans. These legal issues emerged in the early 1970s and continue to be litigated in many states. Also discussed is the school reform measure known as school choice. Legal decisions addressing such school choice issues as voucher pro- grams, tuition reimbursement policies, and charter schools are presented. A knowledge of the complexities of school finance is not necessary for an understanding of the material in this chapter.

Chapter 8 addresses the extent, if any, of educator and school district liability for damages as a result of their official action or inaction. Because the law in this area varies considerably among the states, emphasis is given to such general concepts as duty and standard of care, school district immu- nity, duties of supervision, and malpractice. Liability for damages under Title IX pertaining to teacher-to-student and student-to-student harassment

Preface xxv

is also presented. Tort law is a highly specialized branch of law that is ex- ceedingly complicated; therefore, this chapter makes the reader aware of the potential of liability for damages resulting from improper behavior.

Appendices provide additional information enabling the reader to gain a broader perspective. Appendices A and B are designed to be primers for the reader who wishes to become more adept at analyzing court decisions or engaging in school-related legal research. Appendix B is designed to provide rudimentary legal-research methodology and infor- mation on primary and secondary legal resources available to those inter- ested in legal research. Computer-minded readers may be interested in the brief section discussing legal material available on the Internet. Appendix C contains sections of the U.S. Constitution and amendments that are most relevant for educators. Appendix D contains edited federal statutes having significance for educators. A glossary of often-used legal terminology is in- cluded for the reader ‘s convenience in better understanding the edited court decisions. An index lists many school law topics for facilitating their reference.

Edited, reported, verbatim decisions constitute a substantial portion of this book. Such decisions provide a rich source of information, enabling a reader to gain insight and an understanding of school law that cannot be obtained through secondary analysis. The reading of a judge’s or justice’s written opinionmajority, concurring, or dissenting provides valuable philosophical underpinnings for a thorough understanding of judicial ra- tionale. It also enables the reader to relate a court’s legal rationale to a spe- cific factual context. Emphasis is on substantive school law issues. Deleted from the edited cases is material not related to the issue being examined, material pertaining to technical legal matters, and procedural legal issues that are of primary interest to attorneys. Students of school law are en- couraged to read entire unedited court opinions in those areas of school law in which they have a particular interest. Case citations are provided to facilitate this endeavor.

Inclusion in this text of a particular decision was based on several factors, which included selecting the case decided by the highest-level court that had addressed the specific school law issue under considera- tion, thereby providing the widest applicability; the case that best repre- sented the majority of cases in areas where the law was not well settled; or the case that best illustrated the historic evolvement of the case law under consideration.

Notes and questions follow many of the edited decisions. The notes are designed to provide helpful information such as background material, additional citations for those interested in pursuing further the issue under consideration, the extent to which the law is well settled, or other views if the law is not well settled. Provocative questions are included to illuminate the topic and foster discussion.

25,

xxvi Preface

This book has not been written with the intention of expressing opin- ions for or against views espoused by school administrators, teachers, or students, nor to contend that the judiciary is a meddlesome institution thwarting the efforts of educators. Rather, the book’s purpose is to provide those who are involved in public education with a rudimentary knowl- edge base for making educationally sound decisions within the legal framework. Having such knowledge may reduce the tendency to act on the basis of what the law should be rather than what it is. In that sense, this book stresses the descriptive, not the prescriptive.

The author assumes that public school students learn best about law and order through its observance by knowledgeable teachers, school ad- ministrators, and school board members. And because an important aspect of public school education is the inculcation in students of the notion that we are a “nation of laws and not of men,” educators must be familiar with school law to abide by the law. This is of considerable concern to the author because of his experience as a youth under Adolf Hitler in Nazi Germany. It was observed that one strategy a dictator such as Hitler used to strengthen and solidify his power was the systematic breakdown of law in Germany. As the law was increasingly disregarded, the power of the Nazis increased, and the country became a “nation of men and not of laws.”

Students in my school law classes over the years deserve a special word of thanks, not only for their scintillating and penetrating questions but also for sharing with me those school law topics they deemed impor- tant as they carried out their school-related responsibilities. Over the years, several studentsRobert Meadows, Betty Hull, Jeffrey Williams, Pat McCollum, and Neil McIntyrehave made valuable contributions, and they have my gratitude. A special thank-you is due Professor John Dayton, Department of Leadership, College of Education, at the Univer- sity of Georgia. His chapter, entitled “Individuals with Disabilities and the Law,” is a welcome addition to this seventh edition. He is a delightful col- league who continues to share his valuable insights and suggestions. Ad- ditionally, over the years, Dr. Joe Falzon, Professional Associate with the National Education Association, has been generous in providing me with statistical data. Dan Long, Technical Assistant to the Reporter of Decisions at the United States Supreme Court, has been most helpful in providing me with the most current Court citations. Of course, any failure of omis- sion or commission in this book is the sole responsibility of the author.

This book does not serve as a substitute for competent legal advice should it be needed. However, in addition to a knowledge of school law, an understanding of the material in this book should help to foster a more fruitful exchange with an attorney when that is necessary.

Finally, it was a delight to have the opportunity of again revising this text, as the examination of school law issues continues to be, for me, an ex- citing and rewarding enterprise.

‘ 26

A Note to Users of This Text

This textbook borrows from the teaching traditions of the legal commu- nity. It is a “casebook” not unlike those routinely used in the preparation of lawyers in law schools. Such texts are collections of actual court opin- ions, in which instructional material and exposition are minimized, and through which students are expected on their own to induce legal princi- ples. Casebook authorswho must also be considered to be editors if one is to understand the essence of a casebookselect, edit, and arrange judi- cial opinions to facilitate extracting what the author considers to be im- portant points of law. Brief written comments and questions assist in this process. Accordingly, this author intends the presentation of cases herein not as supplementary illustrations of the textual material but rather as the book’s primary raw material.

A major advantage ascribed to discovering the law from casebooks is the opportunity to learn both legal rationale and reasoning. To this end, students encounter noteworthy examples of judicial decision making and engage, themselves, in such reasoning. Although a knowledge of specific information is essential, understanding legal rationale and learning to en- gage in legal reasoning are more important, in this author’s view, than ac- quiring an encyclopedic knowledge of specific laws. The author submits that educators must be able to do more than merely recite laws affecting schools, and readers looking for a comprehensive treatment of school law in this text will be frustrated. Few factual patterns encountered by the practicing educator will match perfectly an explicit legal rule. Having a broad understanding of legal precedent combined with staying abreast of school law developments will provide the educator on the firing line with a background to deal with the host of novel situations that may be faced.

This text may be used with a Socratic method of teaching. When em- ploying this teaching strategy, the instructor assigns a group of cases to be read and analyzed, and in class he or she calls individually on students orally to “brief” the cases (see Analyzing a Court DecisionAppendix A). The instructor attempts through questioning to draw from students rele- vant legal principles; in this process, students are challenged to the limits of their abilities to make increasingly fine observations and distinctions; and criticism of the student’s recitation is provided. Initially, this individ- ual questioning may not always be pleasant for students, but they soon learn that casual readings of cases for their main ideas are insufficient;

2 7 xxvii

xxviii A Note to Users of this Text

instead, cases must be read slowly, deliberately, and repeatedly. The tech- nique demands thorough preparation from both instructor and student. This method prepares students well for written examinations consisting of complex, hypothetical fact patterns, which students are required to ana- lyze in accordance with applicable law.

This author successfully employed this demanding method in his school law classes. He has found that analyzing case law does indeed cause students to restructure their thinking on the law. Additionally, the promise of reciting in class motivates most students to superb perfor- mance, which unquestionably enhances learning. Inducing students to think on their feet and to perform under pressure seems to be highly ap- propriate in the preparation of educational leaders. Whether or not other instructors choose to complement this casebook with the Socratic method, it is hoped that the cases speak to at least the rudiments of an enormous, diffuse body of law and that the book will challenge readers to further study.

Finally, for those instructors who have access to a law library, a class visit is highly recommended. Such a visit has a number of advantages. It not only provides an opportunity to discuss and locate legal material (see An Introduction to Research in School LawAppendix B), but it also lessens the common perception that a law library is a forbidding place where only lawyers are welcome. Introducing students in this manner to the various reporter systems, Index to Legal Periodicals, law reviews, state materials, Shepard’s Citations, “slip” opinions, United States Law Week, and MartindaleHubbell Law Directory (a listing and rating of attorneys and law firms by state) has always been a well-received class activity.

CHAPTER ONE

Educational Governance: Sources of Law and the Courts

Governance in America is based on the notion that we are “a nation of laws and not of men.” Consequently, those involved in making and en- forcing public school policy should ensure that their actions are lawful. Educational policy may not be enforced arbitrarily or capriciously but must be based on such appropriate legal authority as federal or state con- stitutional or statutory provisions, state board of education or state de- partment of education regulations, case law, or local school board policy.

Several forces operate, however, that at times make it difficult for those who administer public schools to function in a lawful manner. These forces include a federal system of government composed of several levels and corresponding branches that bear on the educational enter- prise, changing and sometimes conflicting laws or policies emanating from these levels and branches, and a climate of legal uncertainty sur- rounding certain controversial educational issues that become highly politicized.

Under the federal system, the three levels of governmentfederal, state, and localall have a voice in educational matters, although not nec- essarily in unison. Difficulties may develop when areas of educational governance overlap considerably in responsibility among the three levels of government and their corresponding branchesexecutive, legislative, and judicial. These difficulties are exacerbated not only by the unclear de- lineation of authority but also in determining with certainty which au- thority is supreme when irreconcilable conflicts exist.

Although education is not specifically mentioned in the federal Con- stitution, the federal government has had a historic involvement in it. In fact, programs under various federal laws pertaining to K-12 education in recent years have made up nearly 7 percent of the total amount of money expended for public elementary and secondary education. Perhaps of greater importance has been the pervasive and significant force of the

2 9 1

2 CHAPTER ONE

federal judiciary in influencing educational policy. Controversial educa- tion issues such as racial segregation in schools, financing of schools, due process for both students and teachers, the role of religion in the schools, search of students and teachers, and the extent to which students and teachers may engage in freedom of expression have all been addressed by the federal judiciary.

State government has plenary power* over public education, and this power is carried out by constitutional and statutory provisions, executive acts, state board of education policies, and actions of chief state school of- ficers. The roles of governmental participants vary among the state gov- ernments. The extent of state authority over local school systems is also not uniform; however, it is generally considered to be directly propor- tional to the state’s financial contribution to public education.

The degree of authority that local school systems have over educa- tional matters depends on a state’s constitutional and statutory provisions. These local powers may be delegated or implied. Although it is the pre- vailing belief that public schools are controlled locally, many students of educational governance suggest that a so-called myth of local control may be operating. They argue that in many instances, especially when the state is heavily involved in financing education, the state has more meaningful power over education policy than the local school system does.

Because each level of government is inextricably intertwined in pub- lic educational governance, problems have often arisen for building-level educators, for instance, when one level or branch of government does not agree with policies or decisions made by another level or branch. Misun- derstanding on the part of educators may also exist regarding the legiti- mate role of each of the levels of governance. Examples of these conflicts abound: a local school system not wishing to allow after-hours use of its schools to certain types of groups but forced to do so by a federal court order; “wealthy” local school systems barred, as a result of a state supreme court decision, from appreciably supplementing the state-financed pro- gram; and local school systems having to accept an amount of disruption by students wishing to express themselves on political, social, or economic matters, protected by a United States Supreme Court decision.

The difficulty of attempting to administer schools in a lawful manner is compounded when educators, unfamiliar with the nuances of the legal system, perceive that there are seeming inconsistencies and occasionally acrimonious disagreement among judges in certain court decisions. Such a situation occurs when a decision is changed one or more times as an ed- ucational issue winds its way through the appellate process. Occasionally, this process reveals sharp philosophical differences among judges. The lack of consistency in court decisions regarding certain issues is also trou-

*This plenary power is diminished, of course, when the state accepis federal education funds, which requires compliance with federal mandates.

Educational Governance: Sources of Law and the Courts 3

bling to some educators. They often find it difficult to understand why an educational practice has court approval in one state or area of federal ju- risdiction and not in another. The legitimacy of a federal court overruling a state court’s decision is also not always completely understood, espe- cially when such a ruling increases the difficulty of administering schools because of strong local, state, or regional disagreement with such a ruling.

School administrators often view themselves as working in a climate of uncertainty as to the legality of their administrative decisions. This may be due to an insufficient knowledge of constitutional law as it pertains to educational matters or an inadequate knowledge of recent court decisions. Relying on what is perceived as sound educational practice in making ad- ministrative decisions is helpful, but it is not always a guarantee that the practice will avoid conflict with case law.

One remedy for ensuring lawful administrative conduct and reduc- ing conflict and misunderstanding among educators is a systematic study of the sources of law under which educators operate. Such a study follows and is designed to illuminate the legitimate role of the various levels of government and their component branches. Although sources of law may be examined in various ways, a particularly fruitful method is to analyze those sources that spring from each level of government.

I. SOURCES OF LAW

A. Federal Level

At the federal level, the Constitution and its amendments, statutes, rules and regulations of administrative agencies, case law, presidential execu- tive orders, and attorney general opinions all constitute sources of law under which educators operate.

1. Constitution and Amendments Although the federal Constitution does not contain the word educa-

tion, constitutional interpretation by the judiciary has had unquestionable impact on educational policymaking. Particularly significant is the judi- ciary’s interpretation of the Fourteenth Amendment to the Constitution. A brief examination of this amendment may be helpful, on the basis both of its historical origins and of its requirements for due process and equal pro- tection of the law as they pertain to educational matters.

a. Historical Perspective. Prior to the adoption of the Fourteenth Amendment in 1868, Americans, under the federal system of government, had a particular kind of dual relationship with state and national govern- ments regarding their civil rights. This came about largely as a result of skepticism, if not an outright distrust, of central government that existed after the Revolutionary War as a consequence of experiences under British

4 CHAPTER ONE

rule. To ensure that a central government would not again run roughshod over an individual’s civil rights, a Bill of Rights was added to the Consti- tution shortly after that document was ratified. Protections afforded those early Americans under the Bill of Rights included freedoms regarding re- ligion, speech, press, peaceable assembly, and petitioning for a redress of grievances; a right to bear arms; protection against unreasonable searches and seizures; guarantee of a grand jury indictment in capital offenses; pro- tection against being subject to double jeopardy or self-incrimination; the right of due process; the right to own property; the right to have a speedy trial by an impartial jury; and protection against excessive bail and cruel and unusual punishments. These protections, however, were those that Americans had against their central government. They did not automati- cally have these rights against their state government as a result of the in- clusion of the rights in the federal Constitution.

Protection of civil rights against state action was provided by state constitutions, and every state, as it was accepted into the Union, provided for a Bill of Rights similar to that found in the federal Constitution. It should be noted, however, that prior to the adoption of the Fourteenth Amendment, if a state’s constitution did not contain a provision for guar- anteeing, for instance, freedom of speech or religion, an American did not necessarily have those protections against his or her state. Although state constitutions may have contained language that afforded individuals their civil rights, as a practical matter, state-guaranteed civil rights protections were not always uniformly applied.

In the years preceding the Civil War, another factor influenced the dual relationship Americans had with their state and federal governments. For the most part, Americans, during that time, thought of themselves pri- marily as citizens of the state within which they resided and citizens of the United States secondarily. An individual considered himself a Virginian or New Yorker first, for instance, and an American citizen second.

This dual relationship with state and central governments and the historic primary allegiance to one’s state was significantly altered by the adoption of the Fourteenth Amendment to the Constitution in 1868. This amendment provided, in part, that:

All persons born or naturalized in the United States and subject to the juris- diction thereof, are citizens of the United States and of the State wherein they reside. No state shall make or enforce any law which shall abridge the priv- ileges or immunities of citizens of the United States. Nor shall any State de- prive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.

From a constitutional standpoint, the juxtaposition of the phrases “citizens of the United States and of the State wherein they reside” is most revealing, because the United States is mentioned first. The legal significance of this juxtaposition and subsequent language of the amendment have been

Educational Governance: Sources of Law and the Courts 5

interpreted as establishing national citizenship as being primary where certain questions dealing with individual rights are concerned.

This amendment, which was intended initially to guarantee rights to newly freed slaves, has also provided protection for the individual from var- ious forms of arbitrary or capricious state action. Because the amendment affords national citizenship primacy regarding constitutional rights, an in- dividual is shielded against state action that may run counter to guarantees he or she has as a citizen of the United States. Under this concept, a state can- not deprive a person of rights he or she has as an American. As a result of federal court action, for instance, teachers may not arbitrarily be dismissed without due process. Neither may students be deprived of their freedoms pertaining to religion by school board policy that allows Bible reading or school-sponsored prayers during normal school hours. These are the kinds of rights individuals have as United States citizens, and no state action, local administrative conduct, or local school board policy may violate them.

Under the Fourteenth Amendment, a state and those operating under its auspices (such as local school systems) must honor those rights, guaranteed by the Constitution, federal statutes, and case law, that a per- son has as a result of being an American. From a constitutional standpoint, these rights must be observed by the state and those operating under the color of the state, and they may not be infringed upon as a result of a state or local election, state or local administrative action, or state court action.

It should be noted that not all constitutional scholars agree with this type of interpretation of the Fourteenth Amendment. Proponents of a “states’ rights theory” for American government have reluctantly accepted certain court decisions based on the Fourteenth Amendment and have adamantly refused to abide by others. Objection to the amendment by such groups is often based on the method used to gain its ratification. Rat- ification of the amendment was a required step for readmittance to the Union after the Civil War. Additionally, it is argued that courts should fol- low the jurisprudence of original intention. Under this doctrine, courts should be guided solely by the literal text of the Constitution and the specific, ascertainable intentions of the framers and not the ruminations of latter-day judges.

b. Due Process and Equal Protection. In addition to establishing the primacy of national citizenship with the protection of certain individ- ual rights, the Fourteenth Amendment also provides for due process and equal protection of the law. These two concepts stem from an ideal of fair- ness in applying the law, and they are not necessarily mutually exclusive. In cases dealing with educational matters where the Fourteenth Amend- ment is cited, it is generally alleged that either (or both) due process or equal protection of the law has been denied. Although extremely complex in a legal sense, these concepts may best be understood by keeping in

6 CHAPTER ONE

mind that they require government officials, which of course includes educators, to be fair as they conduct governmental business. This necessi- tates reasonable and noncapricious action, in addition to abiding by statute and case law, on the part of public school officials when dealing with clients or personnel.

[1] Due Process. In the broadest sense, a person has received due process of law under the Fourteenth Amendment when he or she has been treated essentially the same by state action or local government action as another person has under similar circumstances when he or she is subject to deprivation of life, liberty, or property. Under this concept, governmen- tal action may not be unreasonable or capricious, and when clients are not treated alike there must be a sound basis for dissimilar treatment.

Although the line between substance and procedure is often quite hazy, some have drawn a distinction between so-called procedural and substantive due process of law. According to this view, procedural due process, in the larger sense, deals with the question of whether or not a person has been accorded fair and proper treatment or procedure when apprehended or tried in a court. Accused persons must be given twelve jurors, for instance, if everyone else in their circumstances is given twelve jurors. Evidence to be presented against them must have been obtained properly, and their trials must be conducted according to established pro- cedures. Questions dealing with procedural due process in the educational arena have received much attention, particularly in the area of suspension and expulsion from school. Substantive due process essentially deals with the question of fair treatment of persons by those acting under the color of the state and also with the question of the fairness and reasonableness of laws, regulations, and policies in the light of our constitutional heritage. The Fifth Amendment also contains a due process clause, and although there are similarities with the Fourteenth Amendment provision, the Fifth Amendment is considered exclusively to be protection against the federal government.

As is the case with many concepts, due process resists definition in the dictionary sense. It is a dynamic rather than a static concept. The defi- nition in each instance depends largely on a combination of the specific facts in a situation, the law governing the situation, the particular time in history in which judgMent is being rendered, and the predilections of the individual judge(s) rendering the decision. The Supreme Court, for in- stance, has never unanimously agreed on a standard for due process. Yet, it is the body that renders the ultimate and final decision regarding whether or not due process has been denied. This point, in addition to a discussion of the question of due process, was asserted by Justice Frank- furter in Sweezy v. New Hampshire, 354 U.S. 234 (1957):

To be sure, this is a conclusion based on a judicial judgment in balancing two contending principlesthe right of the citizen to political privacy, as

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Educational Governance: Sources of Law and the Courts 7

protected by the Fourteenth Amendment, and the right of the State to self- protection. And striking the balance implies the exercise of judgment. This is the inescapable judicial task in giving substantive content, legally enforced, to the Due Process Clause, and it is a task ultimately committed to this Court. It must not be an exercise of whim or will. It must be an overriding judgment founded on something much deeper and more justifiable than personal preference. As far as it lies within human limitations, it must be an impersonal judgment. It must rest on fundamental presuppositions rooted in history to which widespread acceptance may be fairly attributed. Such a judgment must be arrived at in a spirit of humility when it counters the judgment of the State’s highest court. But, in the end, judgment cannot be es- capedthe judgment of this Court. (pp. 266-67)

A basic issuethe balance between an individual’s rights and the ne- cessity to protect the larger societyis addressed by courts when depriva- tion of due process is alleged. Courts must determine whether or not a regulation, policy, law, lower-court decision, or action on the part of some- one who had a duty to perform was warranted in either limiting or con- doning a person’s actions. A review of decisions involving educational matters reveals that courts consider many factors when examining alleged deprivation of due process by school officials. Foremost among these fac- tors is whether, overall, the school official’s judgment was educationally sound. Additionally, courts examine whether an official’s actions were guided primarily by administrative convenience or represented the spirit of a conformity-minded, arrogant majority when there should have been a willingness on the part of the majority to accept a degree of nondisruptive deviance.

A brief discussion of social contract theory may amplify the genesis of the due process idea. Although the theory was discussed as early as Plato, its more familiar philosophical underpinnings were advanced by political philosophers several centuries ago, notably, Thomas Hobbes (Leviathan), John Locke (Two Treatises of Government), and Jean Jacques Rousseau (The Social Contract). Locke, whose social contract theory is prob- ably the one most familiar in the English-speaking world, attacked the di- vine right of kings theory. He contended that societies were organized and ruled by the consent of the governed and not by one who had potential for becoming autocratic. Furthermore, he asserted that individuals by their nature had certain rights, which included life, liberty, and property. When by their own volition individuals left the primitive state of nature and agreed to be governed, they made a social contract with government that protected these natural rights. The justification for the state’s existence, ac- cording to Locke, was based on its ability to protect these rights better than individuals could on their own. The price individuals paid for govern- mental protection was a diminution of the freedom they had in the state of nature. This freedom was extremely limited, however, because it existed in an environment where there was greater potential for the “law of the jun- gle” and “might makes right” to prevail.

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8 CHAPTER ONE

Many modern-day political theorists agree that the original thoughts of Locke and others regarding the social contract have come to stand for several propositions concerning the individual’s relationship to govern- ment. T’hese propositions include the notion that government rests on the consent of the governed; persons willingly yielded the freedom they had in the state of nature because they thought the state could offer them certain protections they could not provide for themselves; and although persons relinquished the freedom they had in the state of nature, their entering into a social contract with government included the government’s guarantee against an arbitrary, capricious, and unreasonable denial of their rights of life, liberty, and property when they and the government interacted.

These propositions have considerable implications for educators. In accordance with social contract theory, school authorities not only have a legitimate but a mandatory role to play in protecting health and safety and in maintaining order. Students violating legitimate school rules may be subject to appropriate punitive action. Yet, school authorities may not act arbitrarily, capriciously, or unreasonably toward individuals when pro- tecting the majority, and due process must be provided when a liberty or property interest is involved.

121 Equal Protection. Constitutional authorities contend that the Equal Protection Clause was inserted in the Fourteenth Amendment to en- sure that former slaves would be provided the same civil protections as white Americans. Under this notion, blacks (referred to as Negroes at the time of the clause’s adoption) would not only have their civil rights pro- tected, but they would also have the benefit of applicable laws. Although originally intended to ameliorate the transition from slavery to free status, the equal protection provision has had a dramatic effect in influencing pol- icy in American public education.

From an educational standpoint, the Equal Protection Clause repre- sents the legal basis for prohibiting unreasonable classifications. Although some type of classification is often necessary in laws, rules, or policies, ar- bitrariness may not play a part. Methods of classifying students in public schools have often been based on such factors as sex, age, intelligence, marital status, parents’ residence, race, pregnancy or motherhood, con- duct, test scores, and wealth of their community. For these methods of classification to conform with equal protection guarantees, a reasonable relationship must exist between the objective to be accomplished and the type of classification employed. Also, if the state renders a benefit to one person within a class, all within that class must receive the benefit equally; and if one person within a class is deprived of a benefit by the state, all within that class must be deprived equally. This concept was expressed many years ago by the United States Supreme Court in garbier v. Connolly, 113 U.S. 27 (1885), when it stated:

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Educational Governance: Sources of Law and the Courts 9

Class legislation, discriminating against some and favoring others, is pro- hibited, but legislation which, in carrying out a public purpose, is limited in its application, if within the sphere of its operation it affects alike all persons similarly situated, is not within the amendment. (p. 32)

The principal idea inherent in equal protection, as in due process, is the concept of fairness. And as is the case with due process, whether or not equal protection has been granted or denied depends on a balancing of several elements. These include sociological and psychological factors, sound educational policy, the benefit of a larger good to society as a result of the classification, contemporary customs and mores, and the protection of the individual’s rights in the light of these considerations.

Courts have often employed a two-level test for measuring classifi- cations against the Equal Protection Clause. One is a “rational basis” test, which is employed when a “fundamental interest” is not involved. Under this test, there must be a sound reason for the classification, and all those classified alike must be treated as uniformly as possible. Additionally, the burden of proof is on the complainant to demonstrate that a challenged law or policy has no rational basis to achieve a legitimate state objective. By using this test, the United States Supreme Court has commonly exer- cised restraint in holding legislation in violation of the equal protection provision of the Fourteenth Amendment.

A strict-scrutiny test is applied when a “fundamental interest” or “sus- pect classification” is involved. A presumption of constitutional validity dis- appears when a classification is “suspect.” Examples of such classification include race, national origin, alienage, indigency, and illegitimacy. To date, one’s sex has not been considered a suspect classification. The strict scrutiny test was discussed by the United States Supreme Court in Ply ler v. Doe, 457 U.S. 202 (1982). The Court explained that some classifications are more likely than others to reflect deep-seated prejudice rather than legislative rational- ity in pursuit of some legitimate objective. It also stated that certain groups have historically experienced “political powerlessness” and thus have needed special protection from the majority. In situations where a suspect class or fundamental right is involved, the Court indicated that it is appro- priate to enforce the mandate of equal protection by requiring the state to demonstrate that its classification has been precisely tailored to serve a com- pelling governmental interest. Although the complainant has the burden of proof when the rational basis test is used, under the strict-scrutiny test the burden of proof is placed upon the state to show that the law or policy in question is necessary to accomplish a compelling state interest.

2. Statutes Congress has enacted many statutes that provide educators with

sources of law. The legal basis for this congressional involvement derives from the so-called General Welfare Clause in Article I of the United States

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10 CHAPTER ONE

Constitution. Some of the areas the national legislature has dealt with over the years include vocational education (Vocational Education Act of 1963); defense (National Defense Education Act of 1958); elementary and sec- ondary education (Elementary and Secondary Education Act of 1965); civil rights (Civil Rights Act of 1964*); protecting information concerning stu- dents (Family Educational Rights and Privacy Act of 1974*); sex discrimi- nation (Title IX of the Education Amendments of 1972*); with disabilities children (Section 504 of the Rehabilitation Act of 1973,* the Education for all Handicapped Children Act of 1975, renamed the Individuals with Dis- abilities Act of 1990, the Individuals with Disabilities Education Act of 1990, and the Individuals with Disabilities Education Act of 1997); bilin- gual education (Bilingual Education Act of 1968 and Title VII of the Ele- mentary and Secondary Education Act of 1965); and pregnancy bias (Pregnancy Discrimination Act of 1978*).

Although local and federal educational agencies may occasionally disagree over the purpose and administration of federal statutes, compli- ance at the local level with controversial federal legislation has often been attained by the threat of a lawsuit, the lure of federal money, or a threat of a cutoff of federal funds already being received.

3. Case Law Case law refers to principles of law established by courts. It is largely

based on legal precedents declared in earlier court decisions in which there were similar factual situations. It is believed that following precedent affords a greater likelihood that citizens will be treated equally, and it has the added advantage of allowing a degree of predictability in future dis- putes. Under the doctrine of stare decisis, for instance, a court may stand by precedent and thereby not disturb a settled point of law. Although gener- ally guided by precedent, courts are not bound by it in reaching a decision. A court may decide that the factual situation in the case being decided is not sufficiently similar to the one offering precedent or that the legal or philosophical rationale in the precedent-setting case no longer applies.

Federal courts, especially in the last several decades, have established a sizable body of case law. As a result, federal case law has been an influ- ential, if not significant, force in educational policymaking over the last half century. Federal courts have addressed such issues as racial segrega- tion, questions of equity in state methods for financing education, separa- tion of church and state, due process and equal protection considerations involving both students and teachers, the extent of freedom of expression for students and teachers, and dress and grooming standards for students and teachers. Precedent established by the federal judiciary in these areas provides educators with a significant source of law. Unfortunately, the case

*See Appendix D for material pertaining to this legislation.

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Educational Governance: Sources of Law and the Courts 11

law is not always well settled, and conflicting opinions may occur among the federal district courts and courts of appeals. In this event, educators must follow the case law established for their particular jurisdiction; how- ever, vigilance must be exercised to ascertain appellate or Supreme Court actions that may reverse or modify existing case law. Therefore, it is vital that educators have a thorough understanding of well-settled case law and also be familiar with those relating to areas of the law where it is not.

Although not always clearly understood by educators, a decision of the United States Supreme Court has the full force of law and may be al- tered or modified only by another High Court decision or an amendment to the Constitution.* Unfortunately, High Court decisions have not always beep observed by local school systems. Desegregation decisions and those dealing with Bible reading and recitation of sectarian prayers during school hours are prime examples. Because the Court does not have an enforcement arm, compliance with a decision must often be gained by continued court action, which may include requesting writs of injunction or mandamus.

4. Executive Orders and Attorney General Opinions The president of the United States may issue an executive order that

applies to education. Once issued, it would be a source of law for educators. The attorney general of the United States may be asked to provide an

official opinion pertaining to a constitutional or statutory educational pro- vision or a controversial educational practice. Such an opinion may be thought of as advisory and does not represent as compelling a source of law as case law.

B. State Level

Major state-level sources of law include the state’s constitution, statutes, case law, state board of education policy, state department of education di- rectives, rules and regulations of administrative agencies, executive orders, and attorney general opinions. As discussed previously, these state-level sources of law may not deprive individuals of the due process or equal pro- tection of the laws they have as persons under the Fourteenth Amendment.

1. State Constitutions All state constitutions contain language committing the state to a re-

sponsibility for providing education. Although the constitutional termi- nology varies, it often takes the form of requiring that the legislature

*Article III of the Constitution provides that the Supreme Court has appellate jurisdiction “with such exceptions, and under such regulations as the Congress shall make.” Therefore, congressional action could conceivably restrict the Court’s jurisdiction.

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12 CHAPTER ONE

ensure the establishment and maintenance of a thorough and uniform or efficient system of schools. Such broad language is recognized as the ulti- mate authority within a state for furnishing education. Constitutional pro- visions may designate constitutional offices for education officials, such as state superintendent of schools and state board members. Constitutional provisions may also specify the creation of local school systems, method of selection and number of members for local school boards, qualifications and selection of local school superintendents, and authority and possibly limitations for local taxation for school purposes. A review of constitu- tional provisions pertaining to educational matters among the states re- veals a wide range of format, from a few general designations in some states to a large number that are rather specific in other states.

Many states also have due process and/or equal protection of the law requirements similar to those found in the amendments to the federal Constitution. Consequently, state courts are often asked to interpret these in an educational context.

2. State Statutes State statutes represent a significant source of law for educators.

They are often more explicit than state constitutional provisions, and their purpose is to bring a more specific outline to broad constitutional direc- tives or to codify case law. Statutes may regulate governmental functions such as the method of selection, terms, and responsibilities of state-level education officials. They may also stipulate the type of local or regional school systems; the method of selection, responsibilities, and terms of local school officials; and the powers of local education units.

State statutes often deal with financing of the public schools, tax in- struments, and the degree to which these instruments may be employed to raise local revenue. Often teacher-pupil ratios are specified, as are the teaching of certain subjects, minimum and maximum ages for subjection to compulsory education laws, length of school day and year, and rules re- garding suspension and expulsion of students.

State statutes may also address areas dealing with personnel, such as tenure, retirement, collective bargaining or professional negotiation, meet- and-confer provisions, and fair dismissal procedures. Details pertaining to teaching certificates may be written into law, although this area is usually covered by state board of education policies.

3. Case Law State court decisions can greatly aid educators in sensitive areas

where there is no policy direction from statute law, the constitution, the state board of education, or local rules and regulations. A decision by one state’s highest court does not serve as binding precedent in another state. However, such an opinion does provide educators with the rationale or

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14 CHAPTER ONE

C. Local Level

Sources of law with which educators in a local school system are most fa- miliar are the local school board policies, rules, or regulations and their in- dividual school’s rules or regulations. Such local sources of law, among school systems, are widely dissimilar in regard to their length, compre- hensiveness, and compliance with federal and/or state constitutional or statutory provisions. In many instances, building-level administrators rely on this authority in dealing with such issues as administering corporal punishment, suspending a student, searching a student, censorship of the school newspaper or yearbook, student or teacher refusal to participate in patriotic exercises, use of a school building by members of the community, and dress and grooming standards for both students and teachers.

II. THE AMERICAN JUDICIAL SYSTEM

A dual judicial system composed of state and federal courts exists in the United States. The federal court system has its basis in the United States Constitution, which may be limited by acts of Congress or rulings of the United States Supreme Court. State court systems have their basis in state constitutional provisions or statutory enactments.

In some instances, state and federal courts have concurrent jurisdic- tion, which presents a unique interplay between the two legal systems. Having concurrent jurisdiction provides a prospective litigant with a choice in selecting the judicial system in which he or she wishes to initiate court action. Federal courts may be used, however, only if it can be shown that a federal question exists, and they may not interfere with state court pro- ceedings unless a federal question is present, such as an alleged abridge- ment of a constitutional right.

When concurrent jurisdiction exists, plaintiffs will naturally select the court system perceived to be more sympathetic to their cause of action. From the mid-1950s through the mid-1980s, plaintiffs viewed the federal judiciary in this light due to the activist reputation of the Supreme Court. During that time, many cases were brought to the federal courts that his- torically would have been brought to state courts. That impetus no longer exists, however, because the Court can no longer be considered to be an activist one.

Prior to instituting court action, with few exceptions, one must ex- haust all local and state administrative remedies before seeking a redress of grievances through court litigation. Failure to exhaust these administra- tive remedies by the plaintiff may result in a court’s refusal to grant stand-,ing required for a hearing before the court.

Proceedings in school law often involve suits dealing with questions of due process and equal protection of the law brought in a branch of civil

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Educational Governance: Sources of Law and the Courts 1 3

philosophy of another state’s highest legal body regarding an area of con- flict. There is no appeal of a decision of a state’s highest court unless a fed- eral issue is involved.

There are notable exceptions, but in general, state courts historically have been reluctant to overturn existing school policies in the absence of clearly unreasonable, capricious, or arbitrary conduct on the part of school officials. Consequently, plaintiffs, when possible, have often opted to have their day in federal court instead of a state court.

4. State Board of Education, Chief State School Officer, and State Department of Education The specific roles of the state board of education, the chief state

school officer, and the state department of education vary considerably among the states; yet, these offices collectively and individually provide an important source of law for educators. Functional diversity among these offices in the various states often stems from different constitutional or statutory provisions and the political dynamism of the individuals as- sociated with these offices. The formal relationship among the state board of education, the chief state school officer, and the state department of ed- ucation is rarely detailed in state legislation. Therefore, in practice, the re- lationship often depends on the individuals involved. Occasionally, educators at the local level are not sufficiently familiar with the dif- ferences in authority among the three divisions. Consequently, pro- nouncements from one of these authorities may be viewed mistakenly as agreed-upon policy emanating from the state level.

Although the duties and responsibilities of state boards of education also vary, their primary function is to adopt the necessary policies, rules, and regulations to implement legislation and constitutional requirements. When not in conflict with constitutional decrees, these policies, rules, and regulations have the force of law.

The chief state school officer’s role does not have uniformity among the states. This person administers the state department of education, the agency that deals directly with the local school systems. The department is the bureaucratic mechanism through which state policy is transmitted to local systems.

5. Attorney General Opinions As the state’s legal counsel, the attorney general may be asked for

an opinion regarding an educational question when a constitutional or statutory provision is not clear or when case law does not serve as a dis- tinct precedent. Such attorney general opinions serve as useful guides for the educator, but they do not represent the same degree of authority as a decision by a state’s courts or by a federal court in whose jurisdiction the state lies.

Educational Governance: Sources of Law and the Courts 1 5

law termed equity law. The regular court system usually administers equity law, as separate courts do not normally exist to deal with it. However, in this type of action there is generally no jury, and the judge(s) is the sole de- terminer of what constitutes due process or equal protection, subjectonly to review by a higher court. Equity judgments regarding due process and equal protection are generally made on the basis of many variables, such as a close examination of the particular facts of a case, decisions in previous cases, and possibly the introduction of social science findings. If arbitrary or capricious conduct on the part of a governmental official can be demon- strated, the likelihood increases that either due process or equal protection has been denied. On the other hand, if educationally sound reasons are of- fered by the educator in attempting to explain the actions or conduct in dis- pute, the likelihood increases that due process or equal protection has been afforded. Ultimately, however, the judge(s) must determinegiven a par- ticular factual situation, present societal mores, actual or possible incon- venience or danger to society, precedent, and constitutional and other rightswhere the balance lies between providing an individual with his or her constitutional rights and the legitimate demands of the larger society.

A. State Court Systems

Each state has the responsibility of establishing its own judicial system. Al- though this has resulted in the creation of fifty independent state court systems, certain basic similarities exist among them. Common to most states’ judicial systems is a court of original jurisdiction and some sort of appellate structure.

In most instances, cases dealing with educational matters are initi- ated in the state’s appropriate court of original jurisdiction. These courts are called circuit courts, district courts, courts of common pleas, or supreme courts (New York only), but in many states they are referred to as superior courts. Most litigation is settled in these courts, and they serve as the sole determiner of the facts in most cases.

Intermediate appellate courts constitute a second level of many state court systems. Approximately half of the states have established interme- diate appellate courts, and they are called courts of appeals, appellatedi- visions or departments of the superior courts, appellate divisions of the supreme court (New York only), or appeals courts. Where present, these appellate-level courts provide a tribunal between the trial court and the state’s highest court of last resort. Unlike courts of original jurisdiction, state appellate courts do not engage in factual inquiries; rather, these courts determine questions of law. Opinions are based on a written record provided by the court of original jurisdiction.

A state’s highest-level court is generally called the supreme court; however, it may be called the court of appeals, supreme judicial court, or

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1 6 CHAPTER ONE

the supreme court of appeals. Most state supreme courts rarely have orig- inal jurisdiction except under specific conditions mandated by state law. Their basic function is to review lower-court decisions on appeal. Purely state matters may not be appealed beyond a state’s supreme court; how- ever, if a federal question is involved an appeal may be made to the federal courts or the United States Supreme Court if the state is a party.

B. Federal Court System

By constitutional design, the federal judiciary was established as a separate and independent branch of the United States government. Subsequent fed- eral legislation has provided for a federal judicial system, which presently includes district courts, courts of appeals, and the United States Supreme Court. A litigant must raise a federal question to have standing in a federal court. When dealing with educational issues, this may be accomplished by alleging violation of a federal statute, such as 42 U.S.C. § 1983, or of amend- ments to the Constitution, such as the First, Fourth, Fifth or Fourteenth.

1. District Courts The district court, of which there are more than ninety, is the court of

original jurisdiction in the federal judicial system. Each state has at least one district court, and many states have between two and four districts. A district may be divided into divisions, and cases may be heard in different locations within those divisions.

2. Courts of Appeals Courts of appeals represent the intermediate appellate level of the

federal court system. Their primary function is to review appeals from dis- trict courts within the circuit, and decisions by a court of appeals are bind- ing on the lower federal courts in the circuit. A decision by one court of appeals may stand as a persuasive decision for other courts of appeals, but it does not stand as binding authority Courts of appeals base their deci- sions on the trial court’s proceedings and any briefs filed by concerned parties. A case may be remanded to a lower court for further proceedings when the appellate court finds that the facts presented in the written record are insufficient to render a decision. The nation is divided into thir- teen federal judicial circuits, comprising eleven geographic regions and the District of Columbia Circuit and Federal Circuit (see Figure 1-1).

3. Supreme Court The Supreme Court is the highest-level court in the federal judicial

system, and there is no appeal from a decision rendered by this court. When ruling on the constitutionality of a federal statute or practices within

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Educational Governance: Sources of Law and the Courts 17

a state or local subdivision, such a ruling can be overturned only by an amendment to the Constitution or by a subsequent ruling by the Court. Nine justices including one chief justice make up the Court. As with other federal judges, their appointment is for life, and their compensation can- not be reduced during their tenure.

Most cases reach the Supreme Court by means of a writ of certiorari. Under this method, an unsuccessful litigant in a lower-court decision pe- titions the Court to review the case, setting forth reasons why the case should be granted a writ. A case is accepted for review only if four justices vote to grant certiorari. Acceptance for review under this “rule of four” indicates that at least four members of the Court consider the case to have sufficient merit to be considered by the entire Court. Denial of certiorari leaves the decision of the lower court undisturbed and applicable only in the lower court’s jurisdiction. Such a denial does not have the force of a written decision, which directly addresses the merits of a case.

The Court’s term begins on the first Monday in October and usually lasts for nine months. The number of cases docketed during a term has in- creased significantly. More than 6,000 cases have been docketed in recent years, whereas 2,313 cases were docketed in 1960 and 1,460 in 1945. Al- though the Court decides between 200 and 250 cases in a term, formal written opinions are rendered in approximately half of these decisions.

Court decisions dealing with educational matters have had a signifi- cant impact on educational policy in the last several decades. Many diffi- cult social-policy decisions have been made by the Court because other branches or levels of government were unable to agree or were unwilling to make them. This has prompted some observers to suggest that the United States Supreme Court may have become the modern-day American oracle. However, a different judicial philosophy, as a result of appointments made between 1969 and 1991, has made the Court less inclined to effect social change in recent years, thereby somewhat diminishing this perceived role.

Some educators have doubts about the authority under which the Supreme Court determines questions of constitutionality. Although this right of judicial review is not explicitly provided for in the United States Constitution, many scholars agree that the framers of the Constitution ex- pected the Court to assume this function. This notion was addressed by Alexander Hamilton in The Federalist, No. 78, in which he asserted:

. . . the courts were designed to be an intermediate body between the people and the legislature . . . to keep the latter within the limits assigned to their au- thority. The interpretation of the laws is the proper and peculiar province of the courts.. . . It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. . . .

The Court’s role as the final authority on interpreting the Constitution was established in its landmark decision, Marbury v. Madison, 1 Cranch 137 (1803), and it has continued to engage in judicial review since that time.

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CHAPTER TWO

Schools and the State

Public education is a governmental enterprise that receives enormous re- sources from the citizenry and with which most persons have direct con- tact for fairly extended periods of time. Consequently, because we live in a democratic society that allows for the close scrutiny of such public institu- tions, honest differences often arise between school clients and those run- ning them about public school policies. This chapter’s purpose is to examine the extent of state and local authority when individuals disagree with educational policy involving such issues as compulsory attendance, religion in the schools, before- and after-school use of facilities, aid to nonpublic schools, school fees, and health services. The thread woven throughout many of the court decisions dealing with these issues is the at- tempt by the courts to establish a balance between the legitimate demands or objections of individuals toward educational policy and school author- ities’ perception of their responsibility to the greater population.

I. COMPULSORY ATTENDANCE

A. Satisfied by Parochial, Private, or Home School Attendance

Every state has some form of compulsory education law. These laws gen- erally provide that children between certain ages must attend public, pri- vate, or home school, and failure to comply may be a criminal violation. Central to the legal disputes pertaining to compulsory attendance laws is the balancing of the state’s interest in ensuring that students receive an ap- propriate education and the rights of parents to decide when and where their child attends school.

Pierce v. Society of Sisters, a landmark United States Supreme Court decision, affirmed the doctrine of compulsory school attendance. It also

4 7 19

20 CHAPTER TWO

established the role of parochial and private schools in satisfying the state’s demand that children receive schooling.

PIERCE v. SOCIETY OF SISTERS Supreme Court of the United States, 1925

268 U.S. 510

MR. JUSTICE McREYNOLDS delivered the opinion of the Court. These appeals are from decrees, based upon undenied allegations, which

granted preliminary orders restraining appellants from threatening or attempt- ing to enforce the Compulsory Education Act adopted November 7, 1922, under the initiative provision of her Constitution by the voters of Oregon. * * *

The challenged Act, effective September 1, 1926, requires every par- ent, guardian or other person having control or charge or custody of a child between eight and sixteen years to send him “to a public school for the pe- riod of time a public school shall be held during the current year” in the dis- trict where the child resides; and failure to do so is declared a misdemeanor. * * * The manifest purpose is to compel general attendance at public schools by normal children, between eight and sixteen, who have not completed the eighth grade. And without doubt enforcement of the statute would seriously impair, perhaps destroy, the profitable features of appellees’ business and greatly diminish the value of their property.

Appellee, the Society of Sisters, is an Oregon corporation, organized in 1880, with power to care for orphans, educate and instruct the youth, estab- lish and maintain academies or schools, and acquire necessary real and per- sonal property. It has long devoted its property and effort to the secular and religious education and care of children, and has acquired the valuable good will of many parents and guardians. It conducts interdependent primary and high schools and junior colleges, and maintains orphanages for the custody and control of children between eight and sixteen. In its primary schools many children between those ages are taught the subjects usually pursued in Oregon public schools during the first eight years. Systematic religious in- struction and moral training according to the tenets of the Roman Catholic Church are also regularly provided. All courses of study, both temporal and religious, contemplate continuity of training under the appellee’s charge; the primary schools are essential to the system and the most profitable. It owns valuable buildings, especially constructed and equipped for school pur- poses. The business is remunerativethe annual income from primary schools exceeds thirty thousand dollarsand the successful conduct of this requires long-time contracts with teachers and parents. The Compulsory Ed- ucation Act of 1922 has already caused the withdrawal from its schools of children who would otherwise continue, and their income has steadily de-

48,

Schools and the State 21

clined. The appellants, public officers, have proclaimed their purpose strictly to enforce the statute.

After setting out the above facts the Society’s bill alleges that the enact- ment conflicts with the right of parents to choose schools where their chil- dren will receive appropriate mental and religious training, the right of the child to influence the parents’ choice of a school, the right of schools and teachers therein to engage in a useful business or profession, and is accord- ingly repugnant to the Constitution and void. And, further, that unless en- forcement of the measure is enjoined, the corporation’s business and property will suffer irreparable injury.

Appellee, Hill Military Academy, is a private corporation organized in 1908 under the laws of Oregon, engaged in owning, operating and conduct- ing for profit an elementary, college preparatory and military training school for boys between the ages of five and twenty-one years. * * * It owns consid- erable real and personal property, some useful only for school purposes. The business and incident good will are very valuable. In order to conduct its af- fairs long time contracts must be made for supplies, equipment, teachersand pupils. Appellants, law officers of the State and County, have publicly an- nounced that the Act of November 7, 1922, is valid and have declared their

intention to enforce it. By reason of the statute and threat of enforcement ap- pellee’s business is being destroyed and its property depreciated; parents and guardians are refusing to make contracts for the future instruction of their

sons, and some are being withdrawn. The Academy’s bill states the foregoing facts and then alleges that the

challenged Act contravenes the corporation’s rights guaranteed by the Four- teenth Amendment and that unless appellants are restrained from proclaim- ing its validity and threatening to enforce it irreparable injury will result. The

prayer is for an appropriate injunction. No answer was interposed in either cause, and after proper notices

they were heard by three judges * * * on motions for preliminary injunctions upon the specifically alleged facts. The court ruled that the Fourteenth Amendment guaranteed appellees against the deprivation of their property without due process of law consequent upon the unlawful interference by appellants with the free choice of patrons, present and prospective. It de- clared the right to conduct schools was property and that parents and guardians, as part of their liberty, might direct the education of children by selecting reputable teachers and places. Also, that these schools were not unfit or harmful to the public, and that enforcement of the challenged statute would unlawfully deprive them of patronage and thereby destroy their own- ers’ business and property. Finally, that the threats to enforce the Act would continue to cause irreparable injury; and the suits were not premature.

No question is raised concerning the power of the State reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils; to require that all children of proper age attend some school, that

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22 CHAPTER TWO

teachers shall be of good moral character and patriotic disposition, that cer- tain studies plainly essential to good citizenship must be taught, and that nothing be taught which is manifestly inimical to the public welfare.

The inevitable practical result of enforcing the Act under consideration would be destruction of appellees’ primary schools, and perhaps all other private primary schools for normal children within the State of Oregon. These parties are engaged in a kind of undertaking not inherently harmful, but long regarded as useful and meritorious. Certainly there is nothing in the present records to indicate that they have failed to discharge their obligations to patrons, students or the State. * * *

* * * [We] think it entirely plain that the Act of 1922 unreasonably in- terferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. As often heretofore pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the State. The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and pre- pare him for additional obligations.

* * * Generally it is entirely true, as urged by counsel, that no person in any

business has such an interest in possible customers as to enable him to re- strain exercise of proper power of the State upon the ground that he will be deprived of patronage. But the injunctions here sought are not against the ex- ercise of any proper power. Plaintiffs asked protection against arbitrary, un- reasonable and unlawful interference with their patrons and the consequent distribution of their business and property. Their interest is clear and imme- diate. * * *

The suits were not premature. The injury to appellees was present and very real, not a mere possibility in the remote future. If no relief had been possible prior to the effective date of the Act, the injury would have become irreparable. Prevention of impending injury by unlawful action is a well- recognized function of courts of equity.

The decrees below are

Affirmed.

Notes and Questions

Pierce, one of the original defendants in this case, was the governor of Oregon.

Schools and the State 23

Does the Court’s decision in Pierce reveal a bias in favor of the indi- vidual parent to have access to a pluralistic educational system by not al- lowing the state to have a monopoly over education?

The challenged Oregon law in Pierce had been promoted primarily by members of the Ku Klux Klan and Oregon’s Scottish Rite Masons. Their actions were evidence of a xenophobic response on the part of some Amer- icans after World War I to ensure that children would be properly social- ized in the tenets of Americanism. The strong feelings against many foreigners and Catholics in particular at that time prompted a leading klansman to state: “Somehow these mongrel hordes must be American- ized; failing that, deportation is the only remedy.” An attempt was made to picture Catholics as members of an organization that conducted its wor- ship services in a foreign language, was controlled by a foreigner called a Pope, and practiced secret rituals.

The Supreme Court decision in Pierce had immediate applicability only to the contested Oregon Compulsory Education Act and the issues arising from its attempted implementation. It did not automatically affect similar laws in other states. Individual state legislative action would be necessary to revoke similar laws in those states, and the absence of such legislative action would require a lawsuit to gain compliance with the Pierce rationale. Given the Pierce precedent, such a suit would undoubt- edly be successful.

An Amish group contested Wisconsin’s compulsory attendance law, which required attendance at a public or private school until age sixteen. The Amish did not want their children to attend either a public or private high school after the eighth grade, because they considered such schools to be “worldly.” A Supreme Court decision upheld the Amish position on several grounds. The Court contended that enforcing the state law would gravely endanger, if not destroy, the free exercise of Amish religious be- liefs. Additionally, the Court’s decision was influenced not only by the group’s nearly three hundred years of existence but also by the perception that, although perhaps unconventional, the Amish had evidenced a highly successful social unit characterized by members who were productive, law abiding, and unwilling to accept welfare in any of its usual modern forms. See Wisconsin v. Yoder, 406 U.S. 205 (1972). Would the Court’s ratio- nale prevail if the group contesting a compulsory attendance law were the Ku Klux Klan rather than the Amish? Should students have a voice in this issue? Justice Douglas’s opinion in Yoder, in which he dissents in part, sug- gests that students should have such a voice.

A Pentecostal parent who objected to sending his children to public schools was not upheld. The court ruled that the state’s interest in com- pulsory attendance overrides the parent’s interest in avoiding exposure to the unisex movement, secular humanism, and medical care. See Duro v. District Attorney, Second Judicial District of North Carolina, 712 F.2d 96 (4th

24 CHAPTER TWO

Cir. 1983), cert. denied, 465 U.S. 1006 (1984). Parents were also not upheld when they refused to send their children to public school because those schools did not teach Indian heritage and culture. See Matter of McMillan, 30 N.C.App. 235, 226 S.E.2d 693 (1976).

What are the provisions of the compulsory attendance law in your state?

B. Regulation of Nonpublic Schools

Once Pierce established the doctrine that private school attendance could satisfy a state’s compulsory attendance requirements, the question arose as to the extent to which a state could regulate the private schools within its jurisdiction. The United States Supreme Court addressed this issue, one year after its Pierce decision, in Farrington v. Tokushige, 273 U.S. 284 (1926).

Farrington resulted from a state attempt to Americanize students: in this case Hawaii’s attempt to regulate the predominantly Japanese foreign language schools on the islands. The contested regulations required teach- ers in these schools to possess “ideals of democracy,” knowledge of Amer- ican history, and fluency in English. Additionally, they restricted hours of operation, established entrance requirements, and prescribed textbooks. These regulations, the Court held, served no demonstrable public interest, but instead amounted to a deliberate plan of strict governmental control, infringing on the rights of both parents and school owners.

Both Pierce and Farrington reflect a philosophy that parents should have freedom of choice in the education of their children. Moreover, in sanctioning what many people at the time feared was subversive, these decisions affirm a faith in the sustaining power of American tolerance for diversity among its citizenry.

Regulation of private schools varies among the states. Some states re- quire that the quality of education provided by the private school be es- sentially equivalent to that provided in the public schools. This may include a requirement for certified teachers and certain course offerings. Other states merely have regulations dealing primarily with health, safety, and sanitation. Because attendance at a private school satisfies a state’s compulsory attendance law, it is a legitimate state function to require at- tendance information from private schools.

State regulation of religious private schools has received increased court attention in recent years. In these suits, private schools frequently al- lege that their First Amendment religious freedom is being restricted. Courts have tended to reject these challenges to minimal instructional pro- grams and requirements that teachers have baccalaureate degrees. See Ne- braska v. Faith Baptist Church, 301 N.W.2d 571 (Neb. 1981), appeal dismissed, 454 U.S. 803 (1981), Bangor Baptist Church v. Maine, 549 F.Supp. 1208 (Me.

Schools and the State 25

1982), North Dakota v. Shaver, 294 N.W.2d 883 (N.D. 1981), and North Dakota v. Rivinius, 328 N.W.2d 220 (N.D. 1982), cert. denied, 460 U.S. 1070 (1983). Also see New Life Baptist Church Academy v. Town of East Long Meadow, 885 F. 2d 940 (1st Cir. 1989), cert. denied, 494 U.S.1066 (1990), in which the court interpreted a Massachusetts law requiring a local school committee to “ap- prove” a private school in order for attendance at the private school to sat- isfy that state’s compulsory attendance law. Although the private school believed it was a sin to submit its educational enterprise to a secular au- thority for approval, the court upheld school committee procedures such as gathering written information, reviewing the academic credentials of teachers, and visiting the school to observe the quality of the teaching. The private school preferred voluntary standardized pupil testing. The court contended that the state’s interest in making certain that its children re- ceive an adequate secular education was “compelling” and did not violate the Free Exercise or Establishment Clauses of the First Amendment.

What is the status of private school regulation in your state? In addi- tion to reviewing court decisions, you may wish to consult your state con- stitution, statutes, state school board policies, and attorney general opinions.

C. Home Instruction

Parents dissatisfied with both public and private schools have increasingly chosen to instruct their children at home. This has resulted in a dramatic increase in the number of students home-schooled, which is presently es- timated at over a million and a half students and growing at approxi- mately 12 percent per year. Although the practice is authorized in every state, statutory provisions vary greatly among the states. Those states hav- ing regulatory home-schooling statutes may require: the home program to be essentially “equivalent” to that offered in the public schools; student participation, and possible minimum requirements, in standardized test- ing or other forms of evaluation; a minimum number of yearly hours for instruction, submission of lesson plans, adherence to a minimum curricu- lum; and minimum academic requirements for parents. When challenged by local school authorities and law enforcement officials, parents engaged in home instruction are generally brought to trial in a criminal action for failure to comply with a state’s compulsory education law.

Earliest cases challenging home instruction alleged that home schooling was not “equivalent” to that offered in the public schools. In one of the earliest decisions, New Jersey v. Massa, 231 A.2d 252 (N.J. Super. Ct. 1967), the court held that equivalent education elsewhere than at school requires only a showing of academic equivalence and that the absence of social contact does not vitiate a home-instruction program.

26 CHAPTER TWO

Overall, courts have overwhelmingly upheld the constitutionality of restrictions on home instruction, including the requirement of teacher cer- tification. A Virginia court upheld the state’s compulsory attendance law, which required home school instructors to be “tutors or teachers” but did not require similar qualifications for private school instructors. See Grigg v. Virginia, 297 S.E.2d 799 (Va. 1982). A Michigan law requiring home schools to comply with teacher-certification requirements was similarly upheld. See People v. Bennett, 501 N.W.2d 106 (Mich. 1993) and Clonlara Inc. v. State Board of Education, 501 N.W.2d 88 (Mich. 1993). However, the Michigan Supreme Court did not uphold the requirement for having a teaching certificate for home-school parents who had objected to the re- quirement on religious grounds. See People v. DeJonge, 501 N.W.2d 127 (Mich. 1993).

A federal district court, in Null v. Board of Education, 815 F. Supp. 937 (W. Va. 1993), upheld a statute that made children ineligible for home schooling if their standardized test scores fell below the 40th percentile and did not improve above that level after remedial home instruction. Such legislation, the court contended, had a rational basis and did not vi- olate parents’ general liberty interests nor their equal protection rights. Massachusetts’s highest court, in Brunelle v. Lynn Public Schools, 702 N.E.2d 1182 (Mass. 1998), held that approval of a home-education program condi- tioned on a requirement of home visits by the local school superintendent was invalid. The court reasoned that home visits were not essential to the state’s interest in education and could not be imposed as a condition of ap- proval of parents’ home-education plans. In its decision, the court noted that school officials had examined the home-education proposals, and were satisfied with the qualifications of the parents as teachers, the con- tents of the curricula and instructional materials to be used, the amount of time to be devoted to instruction, and the student evaluation plans.

Objections on religious grounds to verifying compliance with atten- dance laws were not upheld in Mazanec v. North JudsonSan Pierre School Corporation, 798 F.2d 230 (7th Cir. 1987). State home-schooling reporting re- quirements were also upheld in State v. Rivera, 497 N.W.2d 878 (Iowa 1993). The requirements, which were challenged on free exercise grounds, included course outlines, weekly lesson plans, and providing the amount of time spent on areas of instruction. A Maryland law regarding the state’s monitoring of home education was also upheld, although a parent com- plained that the required curriculum promoted atheism, paganism, and evolutionism, and diminished the importance of Christian holidays by in- troducing secular figures such as the Easter Bunny and Santa Claus. The court reasoned that the law did not violate free exercise rights as it applied to all children and did not require the parent to alter her religious beliefs.

Schools and the State 27

See Battles v. Anne Arundel County Board of Education, 904 F. Supp. 471 (Md. 1995), aff’d, 95 F.3d 41 (4th Cir. 1996).

Initially, home instruction was the province of conservative Christian families who were concerned about their children’s moral education, in addition to the 3 Rs. Increasingly, over the years, home instruction has also been embraced by those dissatisfied with the effectiveness of the public schools.

Some less ideologically motivated parents, in recent years, have at- tempted to take advantage of public school services they deem beneficial to their children’s success. These parents would like their children to take advanced mathematics and science courses, foreign language, band, or art, for instance. Others would like their children to participate in extracurric- ular activities such as athletics or other after-school activities. To date, courts have not been sympathetic to the notion of home-schooled students participating in extracurricular activities or taking courses. See Swanson v. Guthrie Independent School District No. I-1, 135 F.3d 694 (10thCir. 1998), up- holding a school district’s full-time attendance policy, which did not allow a home-schooled student to attend public school on a part-time basis. The court disagreed that the policy had an incidental impact on the family’s re- ligious beliefs or practices and declared “The policy does not prohibit [the Swansons] from home-schooling Annie in accordance with their religious beliefs, and does not force them to do anything that is contrary to those be- liefs.” Because part-time students did not qualify for state financial aid, the school board feared that the student’s attendance “could set a precedent allowing other home-schooled children as well as private-school students to use the public school’s facilities on an as-wanted basis, without a corre- sponding increase in state financial aid.”

Since their lack of success in the courts, home-schooling proponents focused their attention on state legislatures. As a result, several states in- cluding Oregon, Florida, and Idaho have passed statutes that create a qualified right for home-schooled students to participate in public school activities. Although the statutes differ in several respects, participation is generally conditioned on students’ attaining a minimum score on a stan- dardized test, complying with requirements of regularly enrolled stu- dents, and conforming to standards of behavior and performance of other students participating in the activity. Some other states, such as Maine, have enacted statutes that allow participation upon the approval of the local school system.

Does your state or local system have any provisions concerning home instruction for those unwilling to attend either public or private schools? May home-schooled students spend part of the day taking courses or engaging in extracurricular activities?

28 CHAPTER TWO

D. Admission Issues

Compulsory attendance laws often state a minimum age at which formal education must begin. Disputes may arise when a child’s birthday is a few days or perhaps weeks after a designated date or when parents believe their child is emotionally and intellectually ready to begin school at an ear- lier age.

This issue was addressed by the West Virginia Supreme Court of Ap- peals. Although a state statute required, as a prerequisite to school admit- tance, that students attain the age of five on or before September 1, the court found that an intellectually mature child whose birthday fell on Sep- tember 3 should have been admitted to school. The court reasoned that it was the state legislature’s intent that school boards adopt flexible poli- ciesconsistent with resources at their disposalto ease the burden of such unfortunate situations. See Blessing v. Mason County Board of Educa- tion, 341 S.E.2d 407 (W. Va. 1985). In the absence of state statutes or consti- tutional provisions establishing the age for entrance to school, local school boards of education have an implied authority to establish them. See Zweifel v. Joint District No. /, 251 N.W.2d 822 (Wis. 1977).

The United State Supreme Court addressed the issue of public school admission of illegal aliens in Ply ler v. Doe, 457 U.S. 202 (1982). The Court, in a five-to-four decision, held that funding for the education of these chil- dren could not be withheld from local school districts, nor could local school districts deny enrollment to children not legally admitted to the country. This decision emphasized both the importance of public educa- tion in maintaining basic civic institutions and the lasting impact of edu- cational deprivation on the life of a child. Provisions of a 1994 California initiative (Proposition 187) that sought to exclude illegal aliens and chil- dren who were citizens, but whose parents were illegal aliens, from public elementary and secondary schools was struck down as being in conflict with Ply ler and other Supreme Court decisions. Another provision of the initiative requiring school districts to verify the immigration status of prospective and current students and their parents and to notify them of their suspected status, and to report this information to state and federal officials was also struck down as violative of federal law. See League of United Latin American Citizens v. Wilson, 908 F. Supp. 755 (Cal. 1995) and 997 F. Supp. 1244 (Cal. 1997). In addition to agreeing with the 1995 deci- sion, the latter decision held Proposition 187 invalid under the congres- sionally enacted Personal Responsibility and Work Opportunity Reconciliation Act (PRA) of 1996, which restricted alien access to substan- tially all public benefits and declared the state powerless to legislate in the area of public benefits for aliens. However, the PRA did not deny public el- ementary and secondary education benefits to aliens.

Schools and the State 29

Does your state or local school system have any provisions concern- ing a minimum age for school entry? If so, is there a provision for early ad- mission or transfer from other states?

II. RELIGION IN THE SCHOOLS

Although the United States Supreme Court and lower federal court deci- sions have been consistent in declaring Bible reading for sectarian pur- poses and school-sponsored prayer during normal school hours to be unconstitutional, this issue and others dealing with religious activities at public schools remain highly charged and emotional ones. Consequently, these issues have provided a persistent stream of litigation focusing on churchstate relations.

In an effort to ensure a separation of church and state, the framers of the Constitution included the following language in the First Amendment: “Congress shall make no law respecting an establishment of religion, or pro- hibiting the free exercise thereof.” (Emphasis added). On the basis of these words, courts must determine the constitutionality of such questions as al- lowing prayer and Bible reading in the public schools during normal school hours, prayer at graduation exercises or football games, conducting baccalaureate services, permitting Bible study or other religious clubs, dis- seminating Gideon Bibles or other religious tracts, or observing religious holidays.

Courts have not erected an unassailably high wall between the church and the state that would absolutely restrict governmental involve- ment with religion. Rather, a review of court decisions dealing with these issues reveals that the thread woven throughout the decisions is the at- tempt by courts to determine the proper height of the wall separating church and state, given a particular factual situation.

A. School-Sponsored Prayer and Bible Reading

Two United States Supreme Court decisions in the early 1960s dramati- cally established the case law pertaining to prayer and Bible reading in the public schools. In Engel v. Vitale, the Court, with one dissent, held that recitation of a prayer composed by the New York State Board of Regents, which was to be said in the presence of a teacher at the beginning of school each day, was unconstitutional and in violation of the Establishment Clause.

In School District of Abington Township v. Schempp, a lengthy deci- sion of 117 pages, which included a majority opinion, three concurring

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opinions, and one dissent, the Court held that reading the Bible for sectar- ian purposes and reciting the Lord’s Prayer in public schools during nor- mal hours were unconstitutional. However, the Court asserted that the Bible could be read as literature in an appropriate class and that the history of religion or comparative religion could be taught.

1. Recitation of a State Prayer

ENGEL v. VITALE Supreme Court of the United States, 1962

370 U.S. 421

MR. JUSTICE BLACK delivered the opinion of the Court. The respondent Board of Education of Union Free School District No. 9,

New Hyde Park, New York, acting in its official capacity under state law, di- rected the School District’s principal to cause the following prayer to be said aloud by each class in the presence of a teacher at the beginning of each school day:

“Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country.”

This daily procedure was adopted on the recommendation of the State Board of Regents, a governmental agency created by the State Constitution to which the New York Legislature has granted broad supervisory, executive, and legislative powers over the State’s public school system. These state offi- cials composed the prayer which they recommended and published as part of their “Statement on Moral and Spiritual Training in the Schools,” saying: “We believe that this Statement will be subscribed to by all men and women of good will, and we call upon all of them to aid in giving life to our program.”

Shortly after the practice of reciting the Regents’ prayer was adopted by the School District, the parents of ten pupils brought this action in a New York State Court insisting that use of this official prayer in the public schools was contrary to the beliefs, religions, or religious practices of both them- selves and their children. Among other things, these parents challenged the constitutionality of both the state law authorizing the School District to direct the use of prayer in public schools and the School District’s regulation or- dering the recitation of this particular prayer on the ground that these actions of official governmental agencies violate that part of the First Amendment of the Federal Constitution which commands that “Congress shall make no law respecting an establishment of religion”a command which was “made ap- plicable to the State of New York by the Fourteenth Amendment of the said Constitution.” The New York Court of Appeals * * * sustained an order of the lower state courts which had upheld the power of New York to use the Re- gents’ prayer as a part of the daily procedures of its public schools so long as

Schools and the State 31

the schools did not compel any pupil to join in the prayer over his or her par- ents’ objection. We granted certiorari to review this important decision in- volving the rights protected by the First and Fourteenth Amendments.

We think that by using its public school syqem to encourage recitation of the Regents’ prayer, the State of New York has adopted a practice wholly inconsistent with the Establishment Clause. There can, of course, be no doubt that New York’s program of daily classroom invocation of God’s bless- ings as prescribed in the Regents’ prayer is a religious activity. It is a solemn avowal of divine faith and supplication for the blessings of the Almighty. The nature of such a prayer has always been religious, none of the respondents has denied this and the trial court expressly so found. * * *

The petitioners contend among other things that the state laws requiring or permitting use of the Regents’ prayer must be struck down as a violation of the Establishment Clause because that prayer was composed by government officials as a part of a governmental program to further religious beliefs. For this reason, petitioners argue, the State’s use of the Regents’ prayer in its pub- lic school system breaches the constitutional wall of separation between Church and State. We agree with that contention since we think that the con- stitutional prohibition against laws respecting an establishment of religion must at least mean that in this country it is no part of the business of govern- ment to compose official prayers for any group of the American people to re- cite as a part of a religious program carried on by government.

It is a matter of history that this very practice of establishing govern- mentally composed prayers for religious services was one of the reasons which caused many of our early colonists to leave England and seek reli- gious freedom in America. The Book of Common Prayer, which was created under governmental direction and which was approved by Acts of Parlia- ment in 1548 and 1549, set out in minute detail the accepted form and con- tent of prayer and other religious ceremonies to be used in the established, tax-supported Church of England. The controversies over the Book and what should be its content repeatedly threatened to disrupt the peace of that coun- try as the accepted forms of prayer in the established church changed with the views of the particular ruler that happened to be in control at the time. Powerful groups representing some of the varying religious views of the peo- ple struggled among themselves to impress their particular views upon the Government and obtain amendments of the Book more suitable to their re- spective notions of how religious services should be conducted in order that the official religious establishment would advance their particular beliefs. Other groups, lacking the necessary political power to influence the Gov- ernment on the matter, decided to leave England and its established church and seek freedom in America from England’s governmentally ordained and supported religion.

It is an unfortunate fact of history that when some of the very groups which had most strenuously opposed the established Church of England

32 CHAPTER TWO

found themselves sufficiently in control of colonial governments in this country to write their own prayers into law, they passed laws making their own religion the official religion of their respective colonies. Indeed, as late as the time of the Revolutiohary War, there were established churches in at least eight of the thirteen former colonies and established religions in at least four of the other five. But the successful Revolution against English political domination was shortly followed by intense opposition to the practice of es- tablishing religion by law. * * *

By the time of the adoption of the Constitution, our history shows that there was a widespread awareness among many Americans of the dangers of a union of Church and State. These people knew, some of them from bitter personal experience, that one of the greatest dangers to the freedom of the in- dividual to worship in his own way lay in the Government’s placing its offi- cial stamp of approval upon one particular kind of prayer or one particular form of religious services. They knew the anguish, hardship and bitter strife that could come when zealous religious groups struggled with one another to obtain the Government’s stamp of approval from each King, Queen, or Pro- tector that came to temporary power. The Constitution was intended to avert a part of this danger by leaving the government of this country in the hands of the people rather than in the hands of any monarch. But this safeguard was not enough. Our Founders were no more willing to let the content of their prayers and their privilege of praying whenever they pleased be influenced by the ballot box than they were to let these vital matters of personal conscience depend upon the succession of monarchs. The First Amendment was added to the Constitution to stand as a guarantee that neither the power nor the pres- tige of the Federal Government would be used to control, support or influ- ence the kinds of prayer the American people can saythat the people’s religions must not be subjected to the pressures of government for change each time a new political administration is elected to office. Under that Amendment’s prohibition against governmental establishment of religion, as reinforced by the provisions of the Fourteenth Amendment, government in this country, be it state or federal, is without power to prescribe by law any particular form of prayer which is to be used as an official prayer in carrying on any program of governmentally sponsored religious activity.

There can be no doubt that New York’s state prayer program officially establishes the religious beliefs embodied in the Regents’ prayer. The respon- dents’ argument to the contrary, which is largely based upon the contention that the Regents’ prayer is “non-denominational” and the fact that the pro- gram, as modified and approved by state courts, does not require all pupils to recite the prayer but permits those who wish to do so to remain silent or be excused from the room, ignores the essential nature of the program’s consti- tutional defects. Neither the fact that the prayer may be denominationally neutral nor the fact that its observance on the part of the students is voluntary can serve to free it from the limitations of the Establishment Clause, as it might

Schools and the State 33

from the Free Exercise Clause, of the First Amendment, both of which are op- erative against the States by virtue of the Fourteenth Amendment. Although these two clauses may in certain instances overlap, they forbid two quite dif- ferent kinds of governmental encroachment upon religious freedom. The Es- tablishment Clause, unlike the Free Exercise Clause, does not depend upon any showing of direct governmental compulsion and is violated by the enact- ment of laws which establish an official religion whether those laws operate directly to coerce nonobserving individuals or not. This is not to say, of course, that laws officially prescribing a particular form of religious worship do not involve coercion of such individuals. When the power, prestige and fi- nancial support of the government is placed behind a particular religious be- lief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain. But the purposes underlying the Establishment Clause go much further than that. Its first and most imme- diate purpose rested on the belief that a union of government and religion tends to destroy government and degrade religion. The history of governmen- tally established religion, both in England and in this country, showed that whenever government had allied itself with one particular form of religion, the inevitable result had been that it had incurred the hatred, disrespect and even contempt of those who held contrary beliefs. That same history showed that many people had lost their respect for any religion that had relied upon the support of government to spread its faith. The Establishment Clause thus stands as an expression of principle on the part of the Founders of our Consti- tution that religion is too personal, too sacred, too holy, to permit its “unhal- lowed perversion” by a civil magistrate. Another purpose of the Establishment Clause rested upon an awareness of the historical fact that governmentally es- tablished religions and religious persecutions go hand in hand. The Founders knew that only a few years after the Book of Common Prayer became the only accepted form of religious services in the established Church of England, an Act of Uniformity was passed to compel all the Englishmen to attend those services and to make it a criminal offense to conduct or attend religious gath- erings of any kinda law which was consistently flouted by dissenting reli- gious groups in England and which contributed to widespread persecutions of people like John Bunyan who persisted in holding “unlawful [religious] meet- ings . . . to the great disturbance and distraction of the good subjects of this kingdom. . . .” And they knew that similar persecutions had received the sanction of law in several of the colonies in this country soon after the estab- lishment of official religions in those colonies. It was in large part to get com- pletely away from this sort of systematic religious persecution that the Founders brought into being our Nation, our Constitution, and our Bill of Rights with its prohibition against any governmental establishment of religion. The New York laws officially prescribing the Regents’ prayer are inconsistent both with the purposes of the Establishment Clause and with the Establish- ment Clause itself.

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It has been argued that to apply the Constitution in such a way as to prohibit state laws respecting an establishment of religious services in public schools is to indicate a hostility toward religion or toward prayer. Nothing, of course, could be more wrong. The history of man is inseparable from the his- tory of religion. And perhaps it is not too much to say that since the begin- ning of that history many people have devoutly believed that “More things are wrought with prayer than this world dreams of.” It was doubtless largely due to men who believed this that there grew up a sentiment that caused men to leave the crosscurrents of officially established state religions and re- ligious persecution in Europe and come to this country filled with the hope that they could find a place in which they could pray when they pleased to the God of their faith in the language they chose. And there were men of this same faith in the power of prayer who led the fight for adoption of our Con- stitution and also for our Bill of Rights with the very guarantees of religious freedom that forbid the sort of governmental activity which New York has at- tempted here. These men knew that the First Amendment, which tried to put an end to governmental control of religion and prayer, was not written to de- stroy either. They knew rather that it was written to quiet well-justified fears which nearly all of them felt arising out of an awareness that governments of the past had shackled men’s tongues to make them speak only the religious thoughts that government wanted them to speak and to pray only to the God that government wanted them to pray to. It is neither sacrilegious nor anti- religious to say that each separate government in this country should stay out of the business of writing or sanctioning official prayers and leave that purely religious function to the people themselves and to those the people choose to look to for religious guidance.

It is true that New York’s establishment of its Regents’ prayer as an offi- cially approved religious doctrine of that State does not amount to a total es- tablishment of one particular religious sect to the exclusion of all othersthat, indeed, the government endorsement of that prayer seems relatively insignif- icant when compared to the governmental encroachments upon religion which were commonplace 200 years ago. To those who may subscribe to the view that because the Regents’ official prayer is so brief and general there can be no danger to religious freedom in its governmental establishment, how- ever, it may be appropriate to say in the words of James Madison, the author of the First Amendment:

“[I]t is proper to take alarm at the first experiment on our liberties. . . . Who does not see that the same authority which can establish Christianity, in exclu- sion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? That the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?”

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The judgment of the Court of Appeals of New York is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

2. Prayer and Bible Reading

SCHOOL DISTRICT OF ABINGTON TOWNSHIP v. SCHEMPP

MURRAY v. CURLETT Supreme Court of the United States, 1963

374 U.S. 203

MR. JUSTICE CLARK delivered the opinion of the Court. * * * These companion cases present the issues in the context of state

action requiring that schools begin each day with readings from the Bible. While raising the basic questions under slightly different factual situations, the cases permit joint treatment. In light of the history of the First Amend- ment and of our cases interpreting and applying its requirements, we hold that the practices at issue and the laws requiring them are unconstitutional under the Establishment Clause, as applied to the States through the Four- teenth Amendment.

* * * The Commonwealth of Pennsylvania by law * ** requires that “At least ten verses from the Holy Bible shall be read, without comment, at the opening of each public school on each school day. Any child shall be ex- cluded from such Bible reading, or attending such Bible reading, upon the written request of his parent or guardian.” The Schempp family, husband and wife and two of their three children, brought suit to enjoin enforcement of the statute* * * . A three-judge statutory District Court for the Eastern District of Pennsylvania held that the statute is violative of the Establishment Clause of the First Amendment as applied to the States by the Due Process Clause of the Fourteenth Amendment and directed that appropriate injunctive relief issue. * * *

The appellees Edward Lewis Schempp, his wife Sidney, and their chil- dren, Roger and Donna, are of the Unitarian faith and are members of the Unitarian Church in Germantown, Philadelphia, Pennsylvania, where they * * * regularly attend religious services. * * *

On each school day at the Abington Senior High School between 8:15 and 8:30 a.m., while the pupils are attending their home rooms or advisory sections, opening exercises are conducted pursuant to the statute. The exer- cises are broadcast into each room in the school building through an inter- communications system and are conducted under the supervision of a teacher by students attending the school’s radio and television workshop.

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Selected students from this course gather each morning in the school’s work- shop studio for the exercises, which include readings by one of the students of 10 verses of the Holy Bible, broadcast to each room in the building. This is followed by the recitation of the Lord’s Prayer, likewise over the intercom- munications system, but also by the students in the various classrooms, who are asked to stand and join in repeating the prayer in unison. The exercises are closed with the flag salute and such pertinent announcements as are of interest to the students. Participation in the opening exercises, as directed by the statute, is voluntary. The student reading the verses from the Bible may select the passages and read from any version he chooses, although the only copies furnished by the school are the King James version, copies of which are circulated to each teacher by the school district. During the period in which the exercises have been conducted the King James, the Douay and the Revised Standard versions of the Bible have been used, as well as the Jewish Holy Scriptures. There are no prefatory statements, no questions asked or so- licited, no comments or explanations made and no interpretations given at or during the exercises. The students and parents are advised that the student may absent himself from the classroom or, should he elect to remain, not participate in the exercises.

* * * At the first trial Edward Schempp and the children testified as to specific re- ligious doctrines purveyed by a literal reading of the Bible “which are con- trary to the religious beliefs which they held and to their familial teaching.” * * * The children testified that all of the doctrines to which they referred were read to them at various times as part of the exercises. Edward Schempp testified at the second trial that he had considered having Roger and Donna excused from attendance at the exercise but decided against it for several reasons, including his belief that the children’s relationships with their teach- ers and classmates would be adversely affected.

* * *

In 1905 the Board of School Commissioners of Baltimore City adopted a rule * * * . The rule provided for the holding of opening exercises in the schools of the city, consisting primarily of the “reading, without comment, of a chapter in the Holy Bible and/or the use of the Lord’s Prayer.” The peti- tioners, Mrs. Madalyn Murray and her son, William J. Murray III, are both professed atheists. Following unsuccessful attempts to have the respondent school board rescind the rule, this suit was filed for mandamus to compel its recision and cancellation. It was alleged that William was a student in a pub- lic school of the city and Mrs. Murray, his mother, was a taxpayer therein; that it was the practice under the rule to have a reading on each school morning from the King James version of the Bible; that at petitioners’ insis- tence the rule was amended to permit children to be excused from the exer- cise on request of the parent and that William had been excused pursuant thereto; that nevertheless the rule as amended was in violation of the peti-

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tioners’ rights to “freedom of religion under the First and Fourteenth Amend- ments” and in violation of “the principle of separation between church and state, contained therein. . . .” The petition particularized the petitioners’ atheistic beliefs and stated that the rule, as practiced, violated their rights:

“in that it threatens their religious liberty by placing a premium on belief as against non-belief and subjects their freedom of conscience to the rule of the majority; it pronounces belief in God as the source of all moral and spiritual values, equating these values with religious values, and thereby renders sinis- ter, alien and suspect the beliefs and ideals of your Petitioners, promoting doubt and question of their morality, good citizenship and good faith.”

* * * The Maryland Court of Appeals affirmed, the majority of four jus- tices holding the exercise not in violation of the First and Fourteenth Amendments, with three justices dissenting. * * *

* * The wholesome “neutrality” of which this Court’s cases speak * * *

stems from a recognition of the teachings of history that powerful sects or groups might bring about a fusion of governmental and religious functions or a concert of dependency of one upon the other to the end that official sup- port of the State or Federal Government would be placed behind the tenets of one or of all orthodoxies. This the Establishment Clause prohibits. And a further reason for neutrality is found in the Free Exercise Clause, which rec- ognizes the value of religious training, teaching and observance and, more particularly, the right of every person to freely choose his own course with reference thereto, free of any compulsion from the state. This the Free Exer- cise Clause guarantees. Thus, as we have seen, the two clauses may overlap. As we have indicated, the Establishment Clause has been directly considered by this Court eight times in the past score of years and, with only one Justice dissenting on the point, it has consistently held that the clause withdrew all legislative power respecting religious belief or the expression thereof. The test may be stated as follows: what are the purpose and the primary effect of the enactment? If either is the advancement or inhibition of religion, then the enactment exceeds the scope of legislative power as circumscribed by the Constitution. That is to say that to withstand the strictures of the Establish- ment Clause there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion.

Applying the Establishment Clause principles to the cases at bar we find that the States are requiring the selection and reading at the opening of the school day of verses from the Holy Bible and the recitation of the Lord’s Prayer by the students in unison. These exercises are prescribed as part of the curricular activities of students who are required by law to attend school. They are held in the school buildings under the supervision and with the par- ticipation of teachers employed in those schools. * * * The trial court * * * has found that such an opening exercise is a religious ceremony and was in- tended by the State to be so. We agree with the trial court’s finding as to the

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religious character of the exercises. Given that finding, the exercises and the law requiring them are in violation of the Establishment Clause.

* * *

It is insisted that unless these religious exercises are permitted a “reli- gion of secularism” is established in the schools. We agree of course that the State may not establish a “religion of secularism” in the sense of affirmatively opposing or showing hostility to religion, thus “preferring those who believe in no religion over those who do believe.” * * * We do not agree, however, that this decision in any sense has that effect. In addition, it might well be said that one’s education is not complete without a study of comparative re- ligion or the history of religion and its relationship to the advancement of civilization. It certainly may be said that the Bible is worthy of study for its literary and historic qualities. Nothing we have said here indicates that such study of the Bible or of religion, when presented objectively as part of a sec- ular program of education, may not be effected consistently with the First Amendment. But the exercises here do not fall into those categories. They are religious exercises, required by the States in violation of the command of the First Amendment that the Government maintain strict neutrality, neither aiding nor opposing religion.

* * *

The place of religion in our society is an exalted one, achieved through a long tradition of reliance on the home, the church and the inviolable citadel of the individual heart and mind. We have come to recognize through bitter experience that it is not within the power of government to in- vade that citadel, whether its purpose of effect be to aid or oppose, to ad- vance or retard. In the relationship between man and religion, the State is firmly committed to a position of neutrality. Though the application of that rule requires interpretation of a delicate sort, the rule itself is clearly and con- cisely stated in the words of the First Amendment. * * *

Notes and Questions

Suppose that every child in a public school classrooni voted to begin each class with a prayer and Bible reading. Would this lift any constitutional in- firmity? Is there a difference if a local school board or state statute autho- rizes such practices?

American notions regarding the separation of church and state are not shared in many other countries. Religion is still only grudgingly toler- ated in countries such as Russia. There is a Church of England and that country’s monarch is also the church’s head; many Latin countries’ laws are based on Catholic Church dogma; and teachings from the Koran not only underpin governmental policy in Islamic countries, but religious leaders often exert enormous political and societal influence. Germany has

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a voluntary national church tax of 9 percent imposed on income derived from wages and salaries. In recent years, daily, state-sanctioned prayer pe- riods have been allowed in the public schools of Colombia, Finland, Britain, Greece, Libya, Nepal, Pakistan, Romania, Saudi Arabia, Sweden, Thailand, and the two Canadian provinces of Newfoundland and Saskatchewan.

At the time they were rendered, the decisions in Engel and Schempp were considered to be highly controversial and were widely discussed. Many citizens berated the Court for being Godless, while others ap- plauded the Court’s actions. Over the years, the decisions were flouted, often openly, by many public school teachers, administrators, and board members. Opponents of the decisions stimulated debate at the local, state, and national levels of government and attempted to introduce a constitu- tional amendment that would allow school prayer. To date, these political efforts have not been successful in allowing prayer in the public schools.

Although litigation involving school prayer has continued uninter- rupted in the lower courts since Engel and Schempp , the United States Supreme Court did not directly address the issue again until Wallace v. Jaf- free, 472 U.S. 38 (1985). This six-to-three decision held that the setting aside of classroom time for school-sponsored silent prayer, which was autho- rized in sixteen states at the time of the decision, was unconstitutional. A careful reading of the decision suggests that allowing for a moment of si- lence, which was authorized in nine states, may be constitutional. Accord- ing to Justice O’Connor, who wrote a concurring opinion, the crucial question regarding a moment of silence is “whether the state has conveyed or attempted to convey the message that children should use the moment of silence for prayer.” The United States Supreme Court again addressed a school prayer issue in Lee v. Weisman in 1992, in which the Court held that prayers organized by school officials at graduation exercises were uncon- stitutional and in Santa Fe Independent School District v. Doe in 2000, which held that student-led, student-initiated prayer at football games violated the Establishment Clause.

A number of forces contribute to the continuing acrimony and hos- tility surrounding prayer and other religious observances in public schools. One of these forces is the lack of understanding, or the refusal to accept, by some otherwise law-abiding citizens that a Supreme Court de- cision is the law of the land. Many proponents of school prayer do not ac- cept that a Supreme Court decision must be obeyed until it is changed through specific means such as the passage of an appropriate law by Con- gress, the Court’s overturning its decision, or an amendment to the Con- stitution. This unwillingness to obey Supreme Court case law is often particularly evident when a significant majority in a homogeneous Chris- tian community (with few Jews or Muslims and perhaps even Catholics), strongly disagree with a decision dealing with separation of church and

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state. Such majorities at the local or state level often attempt to make per- missible, by exerting political pressure, what the Supreme Court has ruled impermissible.

Proponents of prayer in the public schools also have difficulty in un- derstanding what appears to them to be seemingly blatant inconsistencies in public policy and the utterances of some government officials. Such pro- ponents do not understand why “government” does not allow school prayer yet allows legislatures to begin sessions with prayers, the term “God” in the Pledge of Allegiance and on legal tender, taking an oath on a Bible in a court of law, employing chaplains in the military, and allowing churches and church services on military bases. Many proponents also do not understand why prayer is banned in the schools when some high gov- ernment officials lambast Court prayer decisions and reveal their strong endorsement of school prayer. Unfortunately, such statements by local, state, and federal officials often cause confusion among the public. In fact, such rhetoric may even encourage inadvertent lawlessness at the local level by boards of education, school administrators, teachers, or parents who do not feel compelled to obey a controversial decision, in spirit or in fact, because of such statements.

Also contributing to the confusion over school prayer and related re- ligious issues has been the lack of a clear message from the judiciary re- garding the height of the wall that separates church and state. This may be seen in United States Supreme Court split decisions that are rife with stri- dent and often acrimonious dissenting opinions. Conflicting rulings by federal appellate courts also tend to erode confidence in the judiciary as a dependable government authority. For instance, laypersons have had enormous difficulty in understanding why high school seniors were al- lowed to select fellow students to deliver nonsectarian invocations at their graduation in some parts of the country, but not in others, until the issue was resolved by the Supreme Court’s 2000 decision in Santa Fe Independent School District v. Doe. At the lower court level, clearly unconstitutional prayer and other religious activities in the public schools are occasionally upheld by plaintiffs carefully selecting trial judges; yet, these decisions are often touted by “true believers” as being “the law” during the appellate process and even after these decisions have been reversed.

A large picture of Jesus Christ, which had hung in the hallway of a high school, was found to endorse religion and violate the First Amend- ment. The court contended that the picture’s prominence in the hallway, that it was not part of a larger display, and that it was not incorporated into a class lecture or other context had the effect of endorsing religion in general and Christianity in particular. See Washegesic v. Bloomingdale Public Schools, 813 F.Supp. 559 (Mich. 1993), aff’d, 33 F.3d 679 (6th Cir. 1994). North Dakota’s Ten Commandments Law, which required the display of a placard containing the Ten Commandments of the Christian and Jewish

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religions in a conspicuous place in every classroom, was also held to vio- late the Establishment Clause of the First Amendment. See Ring v. Grand Forks School District No. 1, 483 F.Supp. 272 (N.D. 1980). Although a state law that required the posting of the Ten Commandments in public class- rooms was upheld by a tie vote of the Kentucky Supreme Court, Stone v. Graham, 599 S.W.2d 157 (Ky. 1980), this provision was struck down by a five-to-four decision of the United States Supreme Court in 449 U.S. 1104 (1981).

Some proponents of prayer in the public schools contend that Hal- loween is a pagan festival that has no place in the public schools. This issue was addressed in Guyer v. School Board of Alachua County, 634 So.2d 806 (Fla. App. 1994), cert. denied, 513 U.S. 1044 (1994), where it was alleged that the depiction of witches, cauldrons, and brooms, and the wearing of related costumes was a celebration of the Wiccan religion. The court held that the use of these symbols did not constitute an establishment of reli- gion and that Halloween signified nothing more than the secular celebra- tion of a traditional cultural event.

In another case, Roman Catholic parents objected to the so-called Bedford Program which included such activities as allowing students to play a card game called “Magic: The Gathering,” which contained cards containing unrealistic fantasy representations that permitted a player to cast a spell; a teacher’s reading a story about Lord Ganesha, a Hindu God; yoga exercises conducted by a presenter in a turban who wore the beard of a Sikh minister; a member of mineralogical society, while discussing rocks, minerals, and fossils, told the students that some people believe crystals (rocks) have supernatural powers; a teacher reading the students an ac- count of the life of Buddha; and having students write poems entitled “How God Messed Up.” Aggrieved parents alleged that these activities promoted Satanism, occultism, pagan religions, and New Age Spirituality. In its opinion, the court in Altman v. Bedford Central School District, 45 F.Supp.2d 368 (N. Y. 1999), held that although these alleged activities may have been offensive to Roman Catholics, these activities did not violate the First Amendment. However, the court did enjoin the school district from having students pray to Mother Earth and engage in the Earth Day Liturgy; promoting Worry Dolls by selling them in the school store or en- couraging students to make them in class and use them for relief from worry; and allowing students to make a likeness of a graven image of a god or religious symbol such as Lord Ganesha with his elephant head.

May the singing of Christmas carols with religious significance be prohibited as part of a school program? See Muka v. Sturgis, 53 App. Div.2d, 383 N.Y.S.2d 933 (App. Div. 1976), which upheld such a prohibi- tion. But see Citizens Concerned for Separation of Church and State v. City and County of Denver, 508 F.Supp. 823 (Col. 1981), upholding a city’s obser- vance of a holiday with religious music, and Florey v. Sioux Falls School

42 CHAPTER TWO

District 49-5, 619 F.2d 1311 (8th Cir. 1980), cert. denied, 449 U.S. 987 (1980), which upheld the presentation of holiday assemblies that contained reli- gious art, literature, and music, as long as such materials were not pre- sented in an attempt to advance or inhibit religion. The decision held that

Only holidays with both religious and secular bases may be observed; music, art, literature and drama may be included in the curriculum only if presented in a prudent and objective manner and only as part of the cultural and religious heritage of the holiday; and religious symbols may be used only as a teaching aid or resource and only if they are displayed as part of the cultural and religious heritage of the holiday and are temporary in na- ture. Since all programs and materials authorized by the rules must deal with the secular or cultural basis or heritage of the holidays and since the materials must be presented in a prudent and objective manner and symbols used as a teaching aid, the advancement of a “secular program of educa- tion,” and not of religion, is the primary effect of the rules. (p. 1317)

However, this court stated that a kindergarten program that was primar- ily religious in content was unconstitutional.

Prayer issues dealing with governmental agencies other than public schools have also appeared before the judiciary. See Marsh v. Chambers, 463 U.S. 783 (1983), which upheld the Nebraska legislative practice of opening the day with prayer. Many persons do not understand why this and simi- lar practices by other levels and branches of government are allowed by the Supreme Court, while school prayers are not allowed.

Holiday displays have been the subject of several United States Supreme Court opinions. In Allegheny County v. American Civil Liberties Union, 492 U.S. 573 (1989), the Court ruled, in a five-to-four vote, that a crèche depicting the Christian nativity scene placed in a county court- house violated the Establishment Clause of the First Amendment. How- ever, in the same decision, the Court, by a six-to-three margin, upheld a holiday display featuring an 18-foot Chanukah menorah, which was placed just outside a citycounty building next to the city’s 45-foot deco- rated Christmas tree and a sign saluting liberty. The combined display, the Court reasoned, was a recognition that both Christmas and Chanukah are part of the same winter-holiday season. Five years earlier, a forty-year practice of having a city-erected Christmas display in a park owned by a nonprofit organization was upheld by the Court. The display included a Santa Claus house, a Christmas tree, a banner that read “Seasons Greet- ings,” and a nativity scene. In its five-to-four decision, the Court con- tended that, in context, the display did not endorse religion. See Lynch v. Donnelly, 465 U.S. 668 (1984). In 1995, the Court, in a seven-to-two deci- sion, upheld the right of the Ku Klux Klan to place an unattended cross in a government plaza during the Christmas season. The Court stated that this action on the Klan’s part represented private expression and reiterated that private religious speech is as fully protected as secular private expres- sion. The Court ruled that a public forum had been created because the

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square had been used for over a century for public speeches, gatherings, and festivals advocating and celebrating a variety of causes, both secular and religious. Finally, the Court held that religious expression does not vi- olate the Establishment Clause when it is (1) purely private and (2) occurs in a traditional or designated public forum, publicly announced and open to all on equal terms. See Capitol Square Review and Advisory Board v. Pinette, 515 U.S. 753 (1995). These seemingly contradictory decisions and the often acrimonious language in the individual opinions reveal a wide divergence among several of the justices regarding separation of church and state issues.

In response to the United States Supreme Court’s decision in Employ- ment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), which held that a state did not violate a Native American’s free exercise rights by refusing him employment benefits f6r smoking peyote as part of his religious observances, Congress passed the Religious Free- dom Restoration Act (RFRA) in 1993. This law was designed to make it more difficult for state and local governments to limit an individual’s free exercise of religion. However, the RFRA was held to be unconstitutional in City of Boerne v. Flores, 521 U.S. 507 (1997). The Court held that Congress overstepped its authority by improperly expanding the scope of the First Amendment’s guarantee of the free exercise of religion. The Court con- tended that the law’s sweeping coverage ensured its intrusion at every level of government and made almost any governmental action or law subject to challenge by any individual who alleged a substantial burden on his or her free exercise of religion. Additionally, the Court emphasized that Congress cannot change the meaning of the Constitution by merely passing an ordinary statute or by doing so telling the judiciary how to de- cide cases.

Marty court decisions that forced school officials to allow religious practices with which they were in disagreement were rendered by apply- ing the Religious Freedom Restoration Act before it was held to be uncon- stitutional. In one of these decisions, Cheema v. Thompson, 67 F.3d 883 (9th Cir. 1995), the court allowed male Sikh students to wear a kirpan, a 61/2-7- inch curved, dull-edged ceremonial dagger worn in a sheath, which hangs around the neck and under clothing, even though the school had a no- weapons policy.

The RFRA also created many problems in nonschool settings such as prisons. Under their interpretation of the RFRA, some prisoners de- manded to be able to have sex because their reading of the scriptures told them to procreate. Others wanted certain dietary food, in one instance steak and lobster, based on their religion. These and similar, often bizarre, requests permeated every level of government before the law was held to be unconstitutional.

Court decisions have not banned Bible reading for nonsectarian reasons, such as the teaching of the history of religiow and the study of

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comparative religions. Yet, many parents have contended that fear of law- suits has been responsible for public school educators seemingly exclud- ing religion from the curriculum, thereby providing the perception that schools exhibit a hostility toward religion. In an effort to counter such per- ceptions, several states have launched efforts to adopt books that promote teaching about religion or have endorsed plans to teach more about reli- gion. Some observers have referred to this as a return to the “Fourth R.” Proponents contend that such programs, in addition to imparting useful knowledge, will also promote understanding and heightened sensitivity toward all religions. Opponents view such programs as being fraught with potential controversies such as the fear that the dominant local religions will receive preferential treatment and whether teachers will be able to provide “religiously correct” answers to such potentially difficult student questions as Did Jews kill Jesus? Did God really part the Red Sea? Do non- Christians go to hell? Why have people killed each other in the name of re- ligion? Do all religions condemn homosexuality, divorce, or unmarried couples living together?

Does your state or local school system have provisions for school- sponsored teaching about religion, Bible reading or prayer, Bible study, silent prayer, meditation, voluntary prayer, or observance of religious hol- idays? Will noncompliance with statutory provisions prohibiting Bible reading or prayer result in any penalties in your state?

3. Prayers at Graduation Exercises and other Public School-Sponsored Activities

Many courts have been asked to rule on the constitutionality of invoca- tions and benedictions at graduation exercises and prayer at other school- sponsored activities outside the classroom such as football games, school assemblies, team prayers at the end of games and practices and prior to band concerts and practices. In a dramatic five-to-four decision, which re- vealed a deep split among the justices, the United States Supreme Court in Lee v. Weisman ruled that prayers mandated or organized by school offi- cials at graduation exercises were unconstitutional.

a. Prayer at Graduation Exercises

LEE v. WEISMAN Supreme Court of the United States, 1992

505 U. S. 577

JUSTICE KENNEDY delivered the opinion of the Court. School principals in the public school system of the city of Providence,

Rhode Island, are permitted to invite members of the clergy to offer invoca-

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tion and benediction prayers as part of the formal graduation ceremonies for middle schools and for high schools. The question before us is whether in- cluding clerical members who offer prayers as part of the official school graduation ceremony is consistent with the Religion Clauses of the First Amendment, provisions the Fourteenth Amendment makes applicable with full force to the States and their school districts.

Deborah Weisman graduated from Nathan Bishop Middle School, a public school in Providence, at a formal ceremony in June 1989. She was about 14 years old. For many years it has been the policy of the Providence School Committee and the Superintendent of Schools to permit principals to invite members of the clergy to give invocations and benedictions at middle school and high school graduations. Many, but not all, of the principals elected to include prayers as part of the graduation ceremonies. Acting for himself and his daughter, Deborah’s father, Daniel Weisman, objected to any prayers at Deborah’s middle school graduation, but to no avail. The school principal, petitioner Robert E. Lee, invited a rabbi to deliver prayers at the graduation exercises for Deborah’s class. Rabbi Leslie Gutterman, of the Temple Beth El in Providence, accepted.

It has been the custom of Providence school officials to provide invited clergy with a pamphlet entitled “Guidelines for Civic Occasions,” prepared by the National Conference of Christians and Jews. The Guidelines recom- mend that public prayers of nonsectarian civic ceremonies be composed with “inclusiveness and sensitivity,” though they acknowledge that “[p]rayer of any kind may be inappropriate on some civic occasions.” The principal gave Rabbi Gutterman the pamphlet before the graduation and advised him the invocation and benediction should be nonsectarian.

Rabbi Gutterman’s prayers were as follows:

“INVOCATION “God of the Free, Hope of the Brave: “For the legacy of America where diversity is celebrated and the rights of

minorities are protected, we thank You. May these young men and women grow up to enrich it.

“For the liberty of America, we thank You. May these new graduates grow up to guard it.

“For the political process of America in which all its citizens may partici- pate, for its court system where all may seek justice we thank You. May those we honor this morning always turn to it in trust.

“For the destiny of America we thank You. May the graduates of Nathan Bishop Middle School so live that they might help to share it.

“May our aspirations for our country and for these young people, who are our hope for the future, be richly fulfilled.

“AMEN”

“BENEDICTION “0 God, we are grateful to You for having endowed us with the capacity for

learning which we have celebrated on this joyous commencement.

46 CHAPTER TWO

“Happy families give thanks for seeing their children achieve an important milestone. Send Your blessings upon the teachers and administrators who helped prepare them.

“The graduates now need strength and guidance for the future, help them to understand that we are not complete with academic knowledge alone. We must each strive to fulfill what You require of us all: To do justly, to love mercy, to walk humbly.

“We give thanks to You, Lord, for keeping us alive, sustaining us and allow- ing us to reach this special, happy occasion.

. “AMEN” * * *

The case was submitted on stipulated facts. The District Court held that petitioners’ practice of including invocations and benedictions in public school graduations violated the Establishment Clause of the First Amend- ment, and it enjoined petitioners from continuing the practice. The court ap- plied the three-part Establishment Clause test set forth in Lemon v. Kurtzman. Under that test as described in our past cases, to satisfy the Establishment Clause a governmental practice must (1) reflect a clearly secular purpose; (2) have a primary effect that neither advances nor inhibits religion; and (3) avoid excessive government entanglement with religion. * * * The District Court held that petitioners’ actions violated the second part of the test, and so did not address either the first or the third. The court decided, based on its reading of our precedents, that the effects test of Lemon is violated whenever government action “creates an identification of the state with a religion, or with religion in general,” or when “the effect of the governmental action is to endorse one religion over another, or to endorse religion in general.” The court determined that the practice of including invocations and benedic- tions, even so-called nonsectarian ones, in public school graduations creates an identification of governmental power with religious practice, endorses re- ligion, and violates the Establishment Clause. * * *

* * *

These dominant facts mark and control the confines of our decision: State officials direct the performance of a formal religious exercise at promo- tional and graduation ceremonies for secondary schools. Even for those stu- dents who object to the religious exercise, their attendance and participation in the state-sponsored religious activity are in a fair and real sense obligatory, though the school district does not require attendance as a condition for re- ceipt of the diploma.

This case does not require us to revisit the difficult questions dividing us in recent cases, questions of the definition and full scope of the principles governing the extent of permitted accommodation by the State for the reli- gious beliefs and practices of many of its citizens. See Allegheny County v. Greater Pittsburgh ACLU; Wallace v. Jaffree; Lynch v. Donnelly. For without reference to those principles in other contexts, the controlling precedents as they relate to prayer and religious exercise in primary and secondary public

Schools and the State 47

schools compel the holding here that the policy of the city of Providence is an unconstitutional one. We can decide the case without reconsidering the general constitutional framework by which public schools’ efforts to accom- modate religion are measured. Thus we do not accept the invitation of peti- tioners and amicus the United States to reconsider our decision in Lemon v. Kurtzman, supra. The government involvement with religious activity in this case is pervasive, to the point of creating a state-sponsored and state-directed religious exercise in a public school. Conducting this formal religious obser- vance conflicts with settled rules pertaining to prayer exercises for students, and that suffices to determine the question before us.

The principle that government may accommodate the free exercise of religion does not supersede that fundamental limitations imposed by the Es- tablishment Clause. It is beyond dispute that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which “establishes a [state] religion or religious faith, or tends to do so.” * * *

* * * We are asked to recognize the existence of a practice of nonsectarian

prayer, prayer within the embrace of what is known as the Judeo-Christian tra- dition, prayer which is more acceptable than one which, for example, makes explicit references to the God of Israel, or to Jesus Christ, or to a patron saint. There may be some support, as an empirical observation, to the statement of the Court of Appeals for the Sixth Circuit, picked up by Judge Campbell’s dis- sent in the Court of Appeals in this case, that there has emerged in this country a civic religion, one which is tolerated when sectarian exercises are not. * * *

The First Amendment’s Religion Clauses mean that religious beliefs and religious expression are too precious to be either proscribed or prescribed by the State. The design of the Constitution is that preservation and transmission of religious beliefs and worship is a responsibility and a choice committed to the private sphere, which itself is promised freedom to pursue that mission. It must not be forgotten then, that while concern must be given to define the protection granted to an objector or a dissenting nonbeliever, these same Clauses exist to protect religion from government interferences. * * *

* * *

The lessons of the First Amendment are as urgent in the modern world as in the 18th Century when it was written. One timeless lesson is that if cit- izens are subjected to state-sponsored religious exercises, the State disavows its own duty to guard and respect that sphere of inviolable conscience and belief which is the mark of a free people. To compromise that principle today would be to deny our own tradition and forfeit our standing to urge others to secure the protections of that tradition for themselves.

As we have observed before, there are heightened concerns with pro- tecting freedom of conscience from subtle coercive pressure in the elemen- tary and secondary public schools. * * * Our decisions in Engel v. Vitale and

48 CHAPTER TWO

Abington School District, supra, recognize, among other things, that prayer exercises in public schools carry a particular risk of indirect coercion. * * * See Allegheny County v. Greater Pittsburgh ACLU. What to most believers may seem nothing more than a reasonable request that the nonbeliever re- spect their religious practices, in a school context may appear to the non- believer or dissenter to be an attempt to employ the machinery of the State to enforce a religious orthodoxy.

We need not look beyond the circumstances of this case to see the phenomenon at work. The undeniable fact is that the school district’s super- vision and control of a high school graduation ceremony places public pres- sure, as well as peer pressure, on attending students to stand as a group or, at least, maintain respectful silence during the Invocation and Benediction. This pressure, though subtle, and indirect, can be as real as any overt com- pulsion. * * * There can be no doubt that for many, if not most, of the stu- dents at the graduation, the act of standing or remaining silent was an expression of participation in the Rabbi’s prayer. That was the very point of the religious exercise. It is of little comfort to a dissenter, then, to be told that for her the act of standing or remaining in silence signifies mere respect, rather than participation. What matters is that, given our social conventions, a reasonable dissenter in this milieu could believe that the group exercise signified her own participation or approval of it.

Finding no violation under these circumstances would place objectors in the dilemma of participating, with all that implies, or protesting. We do not address whether that choice is acceptable if the affected citizens are ma- ture adults, but we think the State may not, consistent with the Establishment Clause, place primary and secondary school children in this position. Re- search in psychology supports the common assumption that adolescentsare often susceptible to pressure from their peers towards conformity, and that the influence is strongest in matters of social convention. * * * To recognize that the choice imposed by the State constitutes an unacceptable constraint only acknowledges that the government may no more use social pressure to enforce orthodoxy than it may use more direct means.

The injury caused by the government’s action, and the reason why Daniel and Deborah Weisman object to it, is that the State, in a school set- ting, in effect required participation in a religious exercise. It is, we concede, a brief exercise during which the individual can concentrate on joining its message, meditate on her own religion, or let her mind wander. But the em- barrassment and the intrusion of the religious exercise cannot be refuted by arguing that these prayers, and similar ones to be said in the future, are of a de minimis character. To do so would be an affront to the Rabbi who offered them and to all those for whom the prayers were an essential and profound recognition of divine authority. And for the same reason, we think that the in- trusion is greater than the two minutes or so of time consumed for prayers like these.* * *

Schools and the State 49

* * *

True, Deborah could elect not to attend commencement without re- nouncing her diploma; but we shall not allow the case to turn on this point. Everyone knows that in our society and in our culture high school graduation is one of life’s most significant occasions. A school rule which excuses atten- dance is beside the point. Attendance may not be required by official decree, yet it is apparent that a student is not free to absent herself from the gradua- tion exercise in any real sense of the term “voluntary,” for absence would re- quire forfeiture of those intangible benefits which have motivated the student through youth and all her high school years. Graduation is a time for family and those closest to the student to celebrate success and express mutual wishes of gratitude and respect, all to the end of impressing upon the young person the role that it is his or her right and duty to assume in the community and all of its diverse parts.

The importance of the event is the point the school district and the United States rely upon to argue that a formal prayer ought to be permitted, but it becomes one of the principal reasons why their argument must fail. Their contention, one of considerable force were it not for the constitutional constraints applied to state action, is that the prayers are an essential part of these ceremonies because for many persons an occasion of this significance lacks meaning if there is no recognition, however brief, that human achieve- ments cannot be understood apart from their spiritual essence. We think the Government’s position that this interest suffices to force students to choose between compliance or forfeiture demonstrates fundamental inconsistency in its argumentation. It fails to acknowledge that what for many of Deborah’s classmates and their parents was a spiritual imperative was for Daniel and Deborah Weisman religious conformance compelled by the State. While in some societies the wishes of the majority might prevail, the Establishment Clause of the First Amendment is addressed to this contingency and rejects the balance urged upon us. The Constitution forbids the State to exact reli- gious conformity from a student as the price of attending her own high school graduation. This is the calculus the Constitution commands.

The Government’s argument gives insufficient recognition to the real conflict of conscience faced by the young student. The essence of the Govern- ment’s position is that with regard to a civic, social occasion of this importance it is the objector, not the majority, who must take unilateral and private action to avoid compromising religious scruples, here by electing to miss the gradua- tion exercise. This turns conventional First Amendment analysis on its head. It is a tenet of the First Amendment that the State cannot require one of its citi- zens to forfeit his or her rights and benefits as the price of resisting confor- mance to state-sponsored religious practice. To say that a student must remain apart from the ceremony at the opening invocation and closing benediction is to risk compelling conformity in an environment analogous to the classroom setting, where, we have said the risk of compulsion is especially high. * * *

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Inherent differences between the public school system and a session of a State Legislature distinguish this case from Marsh v. Chambers. The con- siderations we have raised in objection to the invocation and benediction are in many respects similar to the arguments we considered in Marsh. But there are also obvious differences. The atmosphere at the opening of a ses- sion of a state legislature where adults are free to enter and leave with little comment and for any number of reasons cannot compare with the con- straining potential of the one school event most important to the student to attend. The influence and force of a formal exercise in a school graduation are far greater than the prayer exercise we condoned in Marsh. At a high school graduation, teachers and principals must and do retain a high degree of control over the precise contents of the program, the speeches, the timing, the movements, the dress, and the decorum of the students. * * * In this at- mosphere the state-imposed character of an invocation and benediction by clergy selected by the school combine to make the prayer a state-sanctioned religious exercise in which the student was left with no alternative but to submit. This is different from Marsh and suffices to make the religious exer- cise a First Amendment violation. * * *

We do not hold that every state action implicating religion is invalid if one or a few citizens find it offensive. People may take offense at all man- ner of religious as well as nonreligious messages, but offense alone does not in every case show a violation. We know too that sometimes to endure so- cial isolation or even anger may be the price of conscience or nonconfor- mity. But, by any reading of our cases, the conformity required of the student in this case was too high an exaction to withstand the test of the Es- tablishment Clause. The prayer exercises in this case are especially im- proper because the State has in every practical sense compelled attendance and participation in an explicit religious exercise at an event of singular im- portance to every student, one the objecting student had no real alternative to avoid.

* * * Our society would be less than true to its heritage if it lacked abiding

concern for the values of its young people, and we acknowledge the profound belief of adherents to many faiths that there must be a place in the student’s life for precepts of a morality higher even than the law we today enforce. We ex- press no hostility to those aspirations, nor would our oath permit us to do so. A relentless and all-pervasive attempt to exclude religion from every aspect of public life could itself become inconsistent with the Constitution. * * * We rec- ognize that, at graduation time and throughout the course of the educational process, there will be instances when religious values, religious practices, and religious persons will have some interaction with the public schools and their students. * * * But these matters, often questions of accommodation of religion, are not before us. The sole question presented is whether a religious exercise may be conducted at a graduation ceremony in circumstances where, as we

Schools and the State 51

have found, young graduates who object are induced to conform. No holding by this Court suggests that a school can persuade or compel a student to par-

ticipate in a religious exercise. That is being done here, and it is forbidden by

the Establishment Clause of the First Amendment. For the reasons we have stated, the judgment of the Court of Appeals is

Affirmed.

JUSTICE SCALIA, with whom THE CHIEF JUSTICE, JUSTICE WHITE,

and JUSTICE THOMAS join, dissenting. Three Terms ago, I joined an opinion recognizing that the Establishment

Clause must be construed in light of the “[g]overnment policies of accom- modation, acknowledgment, and support for religion [that] are an accepted

part of our political and cultural heritage.” That opinion affirmed that “the meaning of the Clause is to be determined by reference to historical practices

and understandings.” It said that “[a] test for implementing the protections of the Establishment Clause that, if applied with consistency, would invalidate longstanding traditions cannot be a proper reading of the Clause.” Allegheny

County v. Greater Pittsburgh ACLU. These views of course prevent me from joining today’s opinion, which

is conspicuously bereft of any reference to history. In holding that the Estab-

lishment Clause prohibits invocations and benedictions at public-school graduation ceremonies, the Courtwith nary a mention that it is doing so lays waste a tradition that is as old as public-school graduation ceremonies themselves, and that is a component of an even more longstanding Ameri-

can tradition of nonsectarian prayer to God at public celebrations generally. As its instrument of destruction, the bulldozer of its social engineering, the Court invents a boundless, and boundlessly manipulable, test of psycholog-

ical coercion, * * * Today’s opinion shows more forcefully than volumes of argumentation why our Nation’s protection, that fortress which is our Con- stitution, cannot possibly rest upon the changeable philosophical predilec- tions of the Justices of this Court, but must have deep foundations in the historic praCtices of our people.

* * * The history and tradition of our nation are replete with public cere-

monies featuring prayers of thanksgiving and petition. * * * From our Nation’s origin, prayer has been a prominent part of govern-

mental ceremonies and proclamations. * * * * *

The other two branches of the Federal Government also have a long- established practice of prayer at public events. As we detailed in Marsh, Congressional sessions have opened with a chaplain’s prayer ever since the

First Congress. And this Court’s own sessions have opened with the invoca- tion “God save the United States and this Honorable Court” since the days

of Chief Justice Marshall. * * *

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In addition to this general tradition of prayer at public ceremonies, there exists a more specific tradition of invocations and benedictions at public-school graduation exercises. * * * As the Court obliquely acknowl- edges in describing the “customary features” of high school graduations, and as respondents do not contest, the invocation and benediction have long been recognized to be “as traditional as any other parts of the [school] grad- uation program and are widely established.” * * *

The Court presumably would separate graduation invocations and benedictions from other instances of public “preservation and transmission of religious beliefs” on the ground that they involve “psychological coer- cion.” I find it a sufficient embarrassment that our Establishment Clause ju- risprudence regarding holiday displays, see Allegheny County v. Greater Pittsburgh ACLU, has come to “requir[e] scrutiny more commonly associ- ated with interior decorators than with the judiciary.” * * * But interior deco- rating is a rock-hard science compared to psychology practiced by amateurs. A few citations of “frlesearch in psychology” that have no particular bearing upon the precise issue here, cannot disguise the fact that the Court has gone beyond the realm where judges know what they are doing. The Court’s ar- gument that state officials have “coerced” students to take part in the invo- cation and benediction at graduation ceremonies is, not to put too fine a point on it, incoherent.

* * *

The Court declares that students’ “attendance and participation in the [invocation and benediction] are in a fair and real sense obligatory.” But what exactly is this “fair and real sense”? According to the Court, students at graduation who want “to avoid the fact or appearance of participation,” in the invocation and benediction are psychologically obligated by “public pressure, as well as peer pressure, . . . to stand as a group or, at least, main- tain respectful silence” during those prayers. This assertionthe very linch- pin of the Court’s opinionis almost as intriguing for what it does not say as for what it says. It does not say, for example, that students are psychologi- cally coerced to bow their heads, place their hands in a airer-like prayer po- sition, pay attention to the prayers, utter “Amen,” or in fact pray. (Perhaps further intensive psychological research remains to be done on these mat- ters.) It claims only that students are psychologically coerced “to stand . . . or, at least, maintain respectful silence.” * * *

* * * The opinion manifests that the Court itself has not given careful con-

sideration to its test of psychological coercion. For if it had, how could it ob- serve, with no hint of concern or disapproval, that students stood for the Pledge of Allegiance, which immediately preceded Rabbi Gutterman’s invo- cation? The government can, of course, no more coerce political orthodoxy than religious orthodoxy. West Virginia Board of Education v. Barnette. Moreover, since the Pledge of Allegiance has been revised since Barnette to

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Schools and the State 53

include the phrase “under God,” recital of the Pledge would appear to raise the same Establishment Cause issue as the invocation and benediction. If stu- dents were psychologically coerced to remain standing during the invoca- tion, they must also have been psychologically coerced, moments before, to stand for (and thereby, in the Court’s view, take part in or appear to take part

in) the Pledge. * * *

The other “dominant fac RI” identified by the Court is that “[s]tate officials

direct the performance of a formal religious exercise” at school graduation cer-

emonies. * * * All the record shows is that principals of the Providence public schools, acting within their delegated authority, have invited clergy to deliver invocations and benedictions at graduations; and that Principal Lee invited Rabbi Gutterman, provided him a two-page flyer, prepared by the National Conference of Christians and Jews, giving general advice on inclusive prayer for civic occasions, and advised him that his prayers at graduation should be nonsectarian. How these facts can fairly be transformed into the charges that Principal Lee “directed and controlled the content of [Rabbi Gutterman’s1 prayer,” that school officials “monitor prayer,” and attempted to ” ‘compose of-

ficial prayers,’ ” and that the “government involvement with religious activity

in this case is pervasive,” is difficult to fathom. * * *

The deeper flaw in the Court’s opinion does not lie in its wrong answer to the question whether there was state-induced “peer-pressure” coercion; it lies, rather, in the Court’s making violation of the Establishment Clause hinge

on such a precious question. The coercion that was a hallmark of historical establishments of religion was coercion of religious orthodoxy and of finan- cial support by force of law and threat of penalty. Typically, attendance at the state church was required; only clergy of the official church could law- fully perform sacraments; and dissenters, if tolerated, faced an array of civil disabilities. * * *

The Establishment Clause was adopted to prohibit such an establish- ment of religion at the federal level (and to protect state establishments of re-

ligion from federal interference). * * * Thus, while I have no quarrel with the Court’s general proposition that

the Establishment Clause “guarantees that government may not coerce any- one to support or participate in religion or its exercise,” I see no warrant for expanding the concept of coercion beyond acts backed by threat of penaltya brand of coercion that, happily, is readily discernible to those of us who have made a career of reading the disciples of Blackstone rather than of Freud. * * *

* * * Our religion-clause jurisprudence has become bedeviled (so to speak)

by reliance on formulaic abstractions that are not derived from, but posi- tively conflict with, our long-accepted constitutional traditions. Foremost

54 CHAPTER TWO

among these has been the so-called Lemon test, see Lemon v. Kurtzman, which has received well-earned criticism from many members of this Court. * * * The Court today demonstrates the irrelevance of Lemon by essentially ignoring it, and the interment of that case may be the one happy byproduct of the Court’s otherwise lamentable decision. Unfortunately, however, the Court has replaced Lemon with its psycho-coercion test, which suffers the double disability of having no roots whatever in our people’s historic prac- tice, and being as infinitely expandable as the reasons for psychotherapy itself.

Another happy aspect of the case is that it is only a jurisprudential dis- aster and not a practical one. Given the odd basis for the Court’s decision, invocations and benedictions will be able to be given at public-school grad- uations next June, as they have for the past century and a half, so long as school authorities make clear that anyone who abstains from screaming in protest does not necessarily participate in the prayers. All that is seemingly needed is an announcement, or perhaps a written insertion at the beginning of the graduation Program, to the effect that, while all are asked to rise for the invocation and benediction, none is compelled to join in them, nor will be assumed, by rising, to have done so. That obvious fact recited, the graduates and their parents may proceed to thank God, as Americans have always done, for the blessings He has generously bestowed on them and on their country.

Notes and Questions

Many observers thought that due to several personnel changes on the Court, this decision would become a vehicle for changing the legal rules regarding prayer in public schools. Rather, in addition to clearly revealing the basic philosophic differences regarding this issue, the majority, con- curring, and dissenting opinions also expose the high degree of acrimony among the justices. Although seeming not to be abandoning the Lemon test, does the decision tacitly usher in a coercion test? Under the Lemon test, to satisfy the Establishment Clause, a governmental practice must (1) reflect a clearly secular purpose; (2) have a primary effect that neither ad- vances nor inhibits religion; and (3) avoid excessive entanglement with re- ligion.

Justice Anthony Kennedy, who wrote the majority opinion in Lee, had been in private practice and a member of the United States Court of Appeals for the Ninth Circuit before being appointed to the Supreme Court by President Ronald Reagan in 1987. Joining Justice Kennedy in the decision were Justices Blackmun, Stevens, O’Connor, and Souter. Justice Blackmun was appointed to the Court by President Richard Nixon in 1970

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Schools and the State 55

and retired in 1994. He was replaced in 1994 by Stephen Breyer, who had been chief judge of the United States Court of Appeals for the First Circuit. Justice Stevens had been in private practice and a member of the United States Court of Appeals for the Seventh Circuit before being appointed to the Supreme Court by President Gerald Ford in 1975. Sandra Day O’Con- nor is the first woman to be appointed a Supreme Court justice. Before her appointment by President Reagan in 1981, she was an assistant attorney general, a state appellate court judge, and a legislator in Arizona. Justice David Souter was appointed to the Court by President Bush in 1990. He had been state attorney general and a member of the New Hampshire Supreme Court.

Justice Antonin Scalia, who wrote the dissenting opinion in Lee, was joined by Chief Justice Rehnquist and Justices White and Thomas. Justice Scalia was appointed by President Reagan in 1986 to replace Justice Rehn- quist, who was elevated to the Chief Justiceship. Justice Scalia came to the High Court from the United States Court of Appeals for the District of Co- lurnbia. He had been a practicing attorney, law school professor, and an as- sistant attorney general in the Justice Department. Chief Justice William H. Rehnquist was appointed by President Reagan in 1986 to become the six- teenth Chief Justice of the Supreme Court, replacing Chief Justice Warren Burger. Rehnquist had been an associate justice since 1972. Before his tenure on the Court, he had been a law clerk for Justice Robert Jackson, in private practice, and an assistant attorney general in the Justice Depart- ment. Justice Byron “Whizzer” White brought a unique background to the Supreme Court. Justice White was a Phi Beta Kappa, Rhodes scholar, all- American football star at the University of Colorado, professional football player (leading ground gainer in the National Football League in 1938), member of the Football Hall of Fame, decorated naval officer, Supreme Court clerk, lawyer, and a deputy attorney general in the Justice Depart- ment. He was the leader of the Citizens for Kennedy in Colorado, and he was appointed to the Court by President Kennedy in 1962. Justice White left the Court in 1993. Justice Clarence Thomas was appointed to the Court by President Bush in 1991. He had been an assistant attorney general in Missouri, Chairman of the Equal Employment Opportunity Commission, and a judge on the United States Court of Appeals for the District of Co- lumbia. His nomination drew intense scrutiny during confirmation hear- ings related to allegations of sexual harassment, unfitness, and being a right-wing ideologue. Justice Ruth Bader Ginsburg, who replaced Justice White, is the second female on the Court. She has been a law school pro- fessor and spent thirteen years on the United States Court of Appeals for the District of Columbia prior to her appointment.

Justice Scalia’s dissent contains several remarkable statements whose discussion should enliven class debate. He states that the majority opinion “. . . lays waste [to a] longstanding American tradition of nonsectarian

56 CHAPTER TWO

prayer to God at public celebrations generally.” Could not the same argu- ment have been made regarding a long-standing tradition when the Court struck down segregation in the public schools in 1954? He asserts that the Court’s decision has replaced the Lemon test, yet the majority opinion states “. . . we do not accept the invitation . . . to reconsider Lemon . ,” and affirmed the lower courts’ use of the test. Does Justice Scalia suggest that states may establish an official state religion when he asserts “The Es- tablishment Clause was adopted to prohibit such an establishment of reli- gion at the federal level and to protect state establishments of religion from federal interference” (emphasis added)? Does Justice Scalia undermine the spirit of the majority decision when he offers a suggestion for circumvent- ing the Lee decision whereby school officials could merely insert a dis- claimer in the graduation announcement? Does his dissent accurately reflect the view of the majority of Americans on the prayer issue?

b. Prayer at other Public School Activities In Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000), the United States Supreme Court, in a six-to-three decision, extended a line of rulings since 1962 barring state-sponsored school prayer by holding that student- led, student-initiated prayer at football games violated the Establishment Clause. In this case, a school policy was challenged that authorized two student elections, the first to determine whether invocations should be de- livered at games, and the second to select the spokesperson to deliver them. In its decision, the Court reiterated its language regarding coercion in Lee v. Weisman that, “at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way that establishes a state religion or re- ligious faith, or tends to do so.” Additionally, the Court addressed (1) whether or not the disputed practice was private speech, (2) the district’s attempt to introduce prayer at football games by having a student election sanction it, (3) the school districts’s attempt to ferret out the plaintiffs’ identities, and (4) the district’s policy being a sham.

The Court asserted that coercion in this case manifested itself in sev- eral ways. Having student elections did not absolve the district from impermissible coercion as it was the district’s decision to hold the “consti- tutionally problematic election.” The Court also held that the district’s as- sertion that attendance at a football game was voluntary, unlike graduation, was also unpersuasive, because several groups of students such as cheerleaders, band members (sometimes for class credit) and foot- ball players would have to attend games. Also not to be overlooked, the Court maintained, was the genuine desire and immense socialpressure to attend “the extracurricular event that is American football.” And the Court stated that “The Constitution demands that schools not force on students the difficult choice between whether to attend these games or to risk fac- ing a personally offensive religious ritual.”

Schools and the State 57

Giving the invocation at games was not private speech, as the district argued. The Court determined that the invocation was given on school property, at a school-sponsored event, using the school’s public address system, by a speaker representing the student body, under the supervision of the faculty, and pursuant to a school policy that explicitly and implicitly encouraged school prayer. The pregame ceremony could not be consid- ered an open forum, the Court reasoned, because the ceremony was not open to indiscriminate use by the student body.

Establishing a student electoral mechanism, the Court held, turned the school into a forum for religious debate and empowered the student majority with the authority to subject students of minority views to con- stitutionally improper messages. Such a system, the Court stated, under- mines the essential protection of minority viewpoints and “. .. encourages divisiveness along religious lines and threatens the imposition of coercion upon these students not desiring to participate in a religious exercise.”

The Court also expressed its concern that the plaintiffs, Mormon and Catholic families, needed protection from intimidation and harassment re- sulting in the district court allowing them to litigate anonymously as “Does” and issuing an order that provided, in part:

[A]ny further attempt on the part of the District or school administration, of- ficials, counselors, teachers, employees or servants of the School District, par- ents, students or anyone else, overtly or covertly to ferret out the identities of the Plaintiffs in this cause, by means of bogus petitions, questionnaires, indi- vidual interrogation, or downright ‘snooping’ will cease immediately. ANY- ONE TAKING ANY ACTION ON SCHOOL PROPERTY, DURING SCHOOL HOURS, OR WITH SCHOOL RESOURCES OR APPROVAL FOR PURPOSES OF ATTEMPTING TO ELICIT THE NAMES OR IDENTITIES OF THE PLAINTIFFS IN THIS CAUSE OF ACTION, BY OR ON BEHALF OF ANY OF THESE INDIVIDUALS, WILL FACE THE HARSHEST POSSIBLE CON- TEMPT SANCTIONS FROM THIS COURT, AND MAY ADDITIONALLY FACE CRIMINAL LIABILITY. . . . (pp. 294-95, n. 1)

The strongly worded majority opinion in Santa Fe revealed the Court’s attitude toward the school district’s impermissible attempt to in- troduce prayer at football games. The Court referred to the policy’s sham secular purpose and announced that the district “. . . asks us to pretend that we do not recognize what every Santa Fe High School student under- stands clearlythat this policy is about prayer. The District further asks us to accept what is obviously untrue: that these messages are necessary to ‘solenmize’ a football game and that this single-student, year-long position is essential to the protection of student speech.”

In this case, the school district obviously reflected the community’s values regarding prayer at football games by instituting the policy under which prayers would be given and, when that was challenged, engaged in litigation all the way to the United States Supreme Court. The district clearly revealed that it would fight with all its might to preserve values it considered important. Would you consider the district to 8e5 role model

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to students by its conduct in this case? To show their displeasure with the Santa Fe decision, prayer continued to be offered before 2000 football games in several southern states. Although not student led, the effort was often promoted by local clergy.

Prior to Santa Fe, but after Lee, two federal appellate courtsthe U.S. Court of Appeals for the Fifth and Eleventh Circuitshad upheld the practice of prayers at graduation exercises being initiated by students who had been elected by their classmates. Although prayer at football games was the issue in Santa Fe, does the language of the Court suggest that the practice of allowing prayer at graduation is unconstitutional? Prayer at other school-sponsored activities outside the classroom such as school as- semblies, team prayers before or at the end of games or practices, and prior to band concerts and practices are also not directly addressed in Santa Fe. Does the language in the decision provide sufficient guidance for the permissibility of prayer at such activities?

What has been your school system’s policy regarding prayer at grad- uation or other school-sponsored activities?

B. Equal Access

Many public schools have Bible or other religious study groups that meet on school grounds before, during, or after school. In some instances, they have been recognized as official student-body organizations and have often advertised their activities on bulletin boards or through the school newspaper. Occasionally, such groups meet during an “activity period.”

Fearful that official recognition of religious groups would raise sepa- ration of church and state issues, some school administrators were reluctant to grant them student-body status. Refusal to grant official recog- nition often resulted in litigation, and in an attempt to address the issue, Congress in 1984 passed the Equal Access Act.* Under this act, it is unlaw- ful for a public secondary school that receives federal financial assistance and has created a limited open forum to deny recognition of student- initiated groups on the basis of the religious, political, or philosophical content of the speech at meetings. Although faculty members may be pre- sent, they may not participate, and outsiders may not control or regularly attend group meetings. The law declares that a limited open forum has been created when one or more noncurricular student groups are allowed to meet on school premises during noninstructional time. A limited open forum is not created when the clubs are curriculum oriented.

Passage of the Equal Access Act did not eliminate controversies sur- rounding the recognition of religion-oriented clubs by public schools, and

*See Appendix D for a partial text of this act.

Schools and the State 59

the issue was addressed by nearly half of the federal appellate courts. In its decision in Board of Education of the Westside Community Schools v. Mergens, 496 U.S. 226 (1990), the United States Supreme Court in an eight-to-one ruling upheld the constitutionality of the Equal Access Act.

In defining “a limited open forum,” the Court stated that such a forum exists when the school “grants an offering to or opportunity for one or more non-curriculum related student groups to meet on school premises during noninstructional time.” Under the Equal Access Act, a fair opportunity has been given students who wish to conduct a meeting within its limited forum

. . if the school uniformly provides that the meetings are voluntary and student-initiated; are not sponsored by the school, the government, or its agents or employees; do not materially and substantially interfere with the orderly conduct of educational activities within the school; and are not directed, con- trolled, conducted, or regularly attended by nonschool persons. (p. 236)

A curriculum-related group, the Court revealed, is one that has more than just a tangential or attenuated relationship to courses offered by the school. Such a group directly relates to the school’s curriculum if the sub- ject matter of the group is actually taught, or will be taught, in a regularly offered course; if the subject matter of the group concerns the body of courses as a whole; if participation in the group is required for a particular course; or if participation in the group results in academic credit. Exam- ples of such groups might include French club, student government, or band. Normally, groups such as a chess club, stamp collecting club, or a community service club would be considered to be “non-curriculum re- lated student groups.”

There is little doubt that the primary intent of the Equal Access Act was to ensure official school recognition for religious student groups; con- sequently, the Court’s decision may be viewed as lowering the so-called wall of separation of church and state by allowing an accommodation to religiously oriented groups. Perhaps not fully recognized at the time of its passage, however, was that the language of the act also protected religious and political groups that may have little local community support, such as Satanists, Skinheads, Homosexuals for Christ, Hemlock Society members, and various nonviolent “gangs.” Official school recognition of such politi- cally or religiously oriented student clubs entitles them to be a part of the student activities program. This carries with it access to the school news- paper, bulletin boards, the public address system, and school fairs. Under provisions of the Equal Access Act, the only way these groups may be de- nied official recognition is by sanctioning only curriculum-related groups or by declining federal funding.

Disputes involving the Equal Access Act have continued since it was passed and upheld in Mergens. In one case, a GayStraight Alliance club

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was denied equal access to school facilities. In its ruling in Colin ex. rel. Colin v. Orange Unified School District, 83 F.Supp.2d 1135 (Cal. 2000) the court ruled that the group could meet on campus. The court reasoned that by recognizing such noncurriculum groups as the Asian Club and Christ- ian Club, the board had established a limited open forum. The court also held that the proposed club was noncurriculum related, nonschool per- sons did not direct or control the club, the possibility for students to meet informally did not satisfy requirements of the Equal Access Act, and con- ditioning of recognition upon changes to the club’s name and mission statement violated the Act.

In another case, a religious club was not allowed to meet during the lunch period although other clubs could. In addressing this issue, the court, in Ceniceros v. Board of Trustees of the San Diego Unified School District, 106 F.3d 878 (9th Cir. 1997), reasoned that because no classes were held during the lunch period it was “noninstructional time” within the mean- ing of the Act and because other clubs met at that time, meetings at lunchtime did not violate the Establishment Clause. In Hsu v. Roslyn Union Free School District No. 3, 85 F.3d 838 (2nd Cir. 1996), cert. denied, 519 U.S. 1040 (1996), the court ruled that a school system should allow the forma- tion of the “Walking on Water” student Bible club although certain club of- ficers had to be Christians who had accepted Jesus Christ as their savior.

The Equal Access Act has been challenged on the grounds that stu- dent religiously oriented meetings could be restricted under the Washing- ton state constitution, which barred school officials from permitting religious organizations to meet on school property. A federal appellate court did not agree with this contention and held that states cannot abridge rights granted by a federal law such as the Equal Access Act. See Garnett v. Renton School District No. 403, 987 F.2d 641 (9th Cir. 1993), cert. de- nied, 510 U.S. 819 (1993).

A set of religious liberty guidelines, addressing the Equal Access Act, was issued by the Department of Education in 1998 included the following:

The Equal Access Act is designed to ensure that, consistent with the First Amendment, student religious activities are accorded the same access to public school facilities as are student secular activities. Based on decisions of the Federal courts, as well as its interpretations of the Act, the Department of Justice has advised that the Act should be interpreted as providing, among other things, that: General provisions Student religious groups at public secondary schools have the same right of access to school facilities as is enjoyed by other comparable student groups. Under the Equal Access Act, a school receiving Federal funds that allows one or more student noncurriculum-related clubs to meet on its premises during noninstructonal time may not refuse access to student religious groups. Prayer services and worship exercises covered A meeting, as defined and protected by the Equal Access Act, may include a prayer service, Bible reading, or other worship exercise.

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Schools and the State 61

Equal access to means of publicizing meetings A school receiving Federal funds must allow student groups meeting under the Act to use the school mediaincluding the public address system, the school newspaper, and the school bulletin boardto announce their meet- ings on the same terms as other noncurriculum-related student groups are allowed to use the school media. Any policy concerning the use of school media must be applied to all noncurriculum-related student groups in a nondiscriminatory manner. Schools, however, may inform students that cer- tain groups are not school sponsored.

Lunchtime and recess covered A school creates a limited open forum under the Equal Access Act, triggering equal access rights for religious groups, when it allows students to meet dur- ing their lunch periods or other noninstructional time during the school day, as well as when it allows students to meet before and after the school day.

Does a potential for faculty conflict present itself if a faculty member, who is merely asked to be present at a group’s meeting for maintaining order or for tort liability reasons and who does not participate, objects to such an assignment because of religious or political disagreements with the group’s views?

C. The Teaching of Evolution

The famous “Scopes monkey trial” in 1925 focused the nation’s attention on the teaching of evolution in the public schools. Although John Scopes was found guilty of teaching evolution, his conviction was overturned on a technicality, and the issue remained relatively dormant until the 1970s. At that time, forces opposed to the teaching of evolution developed a new strategy, which sought to establish that the biblical account of creation is a respectable scientific theory and thus deserves public classroom time for its teaching. Although debated in several legislatures, creationism, as this theory became known, was enacted into law in Arkansas and Louisiana. These statutes were quickly challenged on the basis of their constitutional- ity. In Edwards v. Aguillard, a seven-to-two decision, the United States Supreme Court declared the practice as violative of the First Amendment’s prohibition against establishment of religion.

EDWARDS v. AGUILLARD Supreme Court of the United States, 1987

482 U.S. 578

JUSTICE BRENNAN delivered the opinion of the Court. The question for decision is whether Louisiana’s “Balanced Treatment

for Creation-Science and Evolution-Science in Public School Instruction” Act (Creationism Act), La. Rev. Stat. Ann. §§ 17:286.1-17:286.7 is facially invalid as violative of the Establishment Clause of the First Amendment.

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The Creationism Act forbids the teaching of the theory of evolution in public schools unless accompanied by instruction in “creation science.” No school is required to teach evolution or creation science. If either is taught, however, the other must also be taught. The theories of evolution and cre- ation science are statutorily defined as “the scientific evidences for [creation or evolution] and inferences from those scientific evidences.”

* *

It is clear from the legislative history that the purpose of the legislative sponsor, Senator Bill Keith, was to narrow the science curriculum. During the legislative hearings, Senator Keith stated: “My preference would be that neither [creationism nor evolution] be taught.” Such a ban on teaching does not promoteindeed, it underminesthe provision of a comprehensive sci- entific education.

It is equally clear that requiring schools to teach creation science with evolution does not advance academic freedom. The Act does not grant teachers a flexibility that they did not already possess to supplant the present science curriculum with the presentation of theories, besides evolution, about the origin of life. Indeed, the Court of Appeals found that no law pro- hibited Louisiana public schoolteachers from teaching any scientific theory. * * * As the president of the Louisiana Science Teachers Association testified, “[a]ny scientific concept that’s based on established fact can be included in our curriculum already, and no legislation allowing this is necessary.” The Act provides Louisiana schoolteachers with no new authority. Thus the stated purpose is not furthered by it.

* * * Furthermore, the goal of basic “fairness” is hardly furthered by the Act’s

discriminatory preference for the teaching of creation science and against the teaching of evolution. While requiring that curriculum guides be devel- oped for creation science, the Act says nothing of comparable guides for evolution. * * * Similarly, research services are supplied for creation science but not for evolution. Only “creation scientists” can serve on the panel that supplies the resource services. The Act forbids school boards to discriminate against anyone who “chooses to be a creation scientist” or to teach “cre- ationism,” but fails to protect those who choose to teach evolution or any other non-creation science theory, or who refuse to teach creation science.

If the Louisiana legislature’s purpose was solely to maximize the com- prehensiveness and effectiveness of science instruction, it would have encouraged the teaching of all scientific theories about the origins of hu- mankind. But under the Act’s requirements, teachers who were once free to teach any and all facets of this subject are now unable to do so. Moreover, the Act fails even to ensure that creation science will be taught, but instead requires the teaching of this theory only when the theory of evolution is taught. Thus we agree with the Court of Appeals’ conclusion that the Act does not serve to protect academic freedom, but has the distinctly different

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purpose of discrediting “evolution by counterbalancing its teaching at every turn with the teaching of creation science. . . .”

* * *

As in Stone and Abington, we need not be blind in this case to the leg- islature’s preeminent religious purpose in enacting this statute. There is a his- toric and contemporaneous link between the teachings of certain religious denominations and the teaching of evolution. It was this link that concerned the Court in Epperson v. Arkansas, which also involved a facial challenge in a statute regulating the teaching of evolution. In that case, the Court re- viewed an Arkansas statute that made it unlawful for an instructor to teach evolution or to use a textbook that referred to this scientific theory. Although the Arkansas antievolution law did not explicitly state its predominant reli- gious purpose, the Court could not ignore that “[t]he statute was a product of the upsurge of ‘fundamentalist’ religious fervor” that has long viewed this particular scientific theory as contradicting the literal interpretation of the Bible. After reviewing the history of antievolution statutes, the Court deter- mined that “there can be no doubt that the motivation for the [Arkansas] law was the same [as other antievolution statutes]: to suppress the teaching of a theory which, it was thought, ‘denied’ the divine creation of man.” The Court found that there can be no legitimate state interest in protecting particular re- ligions from scientific views “distasteful to them,” and concluded “that the First Amendment does not permit the State to require that teaching and learning must be tailored to the principles or prohibitions of any religious sect or dogma.” * * *

These same historic and contemporaneous antagonisms between the teachings of certain religious denominations and the teaching of evolution are present in this case. The preeminent purpose of the Louisiana legislature was clearly to advance the religious viewpoint that a supernatural being created humankind. The term “creation science” was defined as embracing this particular religious doctrine by those responsible for the passage of the Cre- ationism Act. Senator Keith’s leading expert on creation science, Edward Boudreaux, testified at the legislative hearings that the theory of creation sci- ence included belief in the existence of a supernatural creator. * * * Senator Keith also cited testimony from other experts to support the creation science view that “a creator [was] responsible for the universe and everything in it.” The legislative history therefore reveals that the term “creation science,” as contemplated by the legislature that adopted this Act, embodies the religious belief that a supernatural creator was responsible for the creation of mankind.

Furthermore, it is not happenstance that the legislature required the teaching of a theory that coincided with this religious view. The legislative history documents that the Act’s primary purpose was to change the science curriculum of public schools in order to provide persuasive advantage to a particular religious doctrine that rejects the factual basis of evolution in its en- tirety. The sponsor of the Creationism Act, Senator Keith, explained during

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the legislative hearings that his disdain for the theory of evolution resulted from the support that evolution supplied to views contrary to his own reli- gious beliefs. According to Senator Keith, the theory of evolution was con- sonant with the “cardinal principle[s] of religious humanism, secular humanism, theological liberalism, aetheistism [sic].” * * * The state senator repeatedly stated that scientific evidence supporting his religious views should be included in the public school curriculum to redress the fact that the theory of evolution incidentally coincided with what he characterized as religious beliefs antithetical to his own. The legislation therefore sought to alter the science curriculum to reflect endorsement of a religious view that is antagonistic to the theory of evolution.

In this case, the purpose of the Creationism Act was to restructure the science curriculum to conform with a particular religious viewpoint. Out of many possible science subjects taught in the public schools, the legislature chose to affect the teaching of the one scientific theory that historically has been opposed by certain religious sects.

* * *

We do not imply that a legislature could never require that scientific critiques of prevailing scientific theories be taught. Indeed, the Court ac- knowledged in Stone that its decision forbidding the posting of the Ten Com- mandments did not mean that no use could ever be made of the Ten Commandments, or that the Ten Commandments played an exclusively reli- gious role in the history of Western Civilization. In a similar way, teaching a variety of scientific theories about the origins of humankind to schoolchild- ren might be validly done with the clear secular intent of enhancing the ef- fectiveness of science instruction. But because the primary purpose of the Creationism Act is to endorse a particular religious doctrine, the Act furthers religion in violation of the Establishment Clause.

* * *

The Louisiana Creationism Act advances a religious doctrine by re- quiring either the banishment of the theory of evolution from public school classrooms or the presentation of a religious viewpoint that rejects evolu- tion in its entirety. The Act violates the Establishment Clause of the First Amendment because it seeks to employ the symbolic and financial support of government to achieve a religious purpose. The judgment of the Court of Appeals therefore is

Affirmed.

* * *

JUSTICE SCALIA, with whom THE CHIEF JUSTICE joins, dissenting. Even if I agreed with the questionable premise that legislation can be

invalidated under the Establishment Clause on the basis of its motivation alone, without regard to its effects, I would still find no justification for today’s decision. The Louisiana legislators who passed the “Balanced Treat- ment for Creation-Science and Evolution-Science Act,” * * * each of whom

Schools and the State 65

had sworn to support the Constitution, were well aware of the potential Es- tablishment Clause problems and considered that aspect of the legislation with great care. After seven hearings and several months of study, resulting in substantial revision of the original proposal, they approved the Act over- whelmingly and specifically articulated the secular purpose they meant it to serve. Although the record contains abundant evidence of the sincerity of that purpose (the only issue pertinent to this case), the Court today holds, es- sentially on the basis of “its visceral knowledge regarding what must have moved the legislators,” * * * that the members of the Louisiana Legislature knowingly violated their oaths and then lied about it. I dissent. Had require- ments of the Balanced Treatment Act that are not apparent on its face been clarified by an interpretation of the Louisiana Supreme Court, or by the man- ner of its implementation, the Act might well be found unconstitutional; but the question of its constitutionality cannot rightly be disposed of on the gal- lop, by impugning the motives of its supporters.

* * * * * * Even if one concedes, for the sake of argument, that a majority of

the Louisiana Legislature voted for the Balanced Treatment Act partly in order to foster (rather than merely eliminate discrimination against) Christian fundamentalist beliefs, our cases establish that that alone would not suffice to invalidate the Act, so long as there was a genuine secular purpose as well.

* * *

The people of Louisiana, including those who are Christian fundamen- talists, are quite entitled, as a secular matter, to have whatever scientific evidence there may be against evolution presented in their schools, just as Mr. Scopes was entitled to present whatever scientific evidence there was for it. Perhaps what the Louisiana Legislature has done is unconstitutional be- cause there is no such evidence, and the scheme they have established will amount to no more than a presentation of the Book of Genesis.

* * * Because I believe that the Balanced Treatment Act had a secular

purpose, which is all the first component of the Lemon test requires, I would reverse the judgment of the Court of Appeals and remand for further consideration.

* * *

Notes

In an earlier decision, the Court held that an Arkansas “anti-evolution” statute violated the Establishment Clause. See Epperson v. Arkansas, 393 U.S. 97 (1968).

Justice William Brennan, who wrote the majority opinion in Aguil- lard, was appointed to the Court by President Dwight D. Eisenhower in

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1956. He had been an associate justice of the New Jersey Supreme Court. Justice Brennan retired from the Court in 1990 and was replaced by Justice David Souter. Both Justice Scalia and Chief Justice Rehnquist, as their dis- sent in Aguillard and other decisions reveals, have shown strong dissatis- faction with prevailing legal rationale used to decide certain issues.

Although opponents of the teaching of evolution have not prevailed in the courts, controversy surrounding the issue continues; and the teach- ing of evolution continues to be challenged at the state and local levels in some states. In several states, science books carry a disclaimer regarding evolution’s scientific status or a similar disclaimer is read to the students. A disclaimer, which was to be read immediately before the teaching of evolution, in all elementary and secondary classes was challenged in Frei ler v. Tangipahoa Parish Board of Education, 185 F.3d 337 (5th Cir 1999), cert. denied 530 U.S. 1251 (2000). The disclaimer contained such statements as: evolution is presented “to inform students of the scientific concept and not intended to influence or dissuade the Biblical version of Creation or any other concept,” and “Students are urged to exercise critical thinking and gather all information possible and closely examine each alternative toward forming an opinion.” In declaring the disclaimer unconstitutional, the appellate court stated that the primary effect of the disclaimer was to “protect and maintain a particular religious viewpoint, namely belief in the Biblical version of creation.” This had the effect, the court concluded, of “impermissibly advancing religion, thereby violating the second prong of the Lemon test as well as the endorsement test.”

A teacher’s First Amendment rights were not violated when he was prohibited from teaching a nonevolutionary theory of creation. The court did not accept the teacher’s contention that he was developing an open mind in his students and encouraging students to explore alternative viewpoints. See Webster v. New Lenox School District, 917 F.2d 1004 (7th Cir. 1990). For a similar holding see Peloza v. Capistrano Unified School District, 37 F.3d 517 (9th Cir. 1994).

In another instance, a state supreme court upheld the nonrenewal of the contract of a teacher who devoted excessive time to creationism and re- ligion in his biology class and who failed to cover basic biology principles. The school board had established guidelines that allowed the teacher a specified amount of time to teach the theories of evolution or creation. See Dale v. Board of Education, Lemmon Independent School District, 316 N.W.2d 108 (N.D. 1982).

D. Textbooks

Parents may object to the use of certain textbooks on the grounds that the books advance secular humanism and inhibit theistic religion. In one in-

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stance, parents charged that history, social studies, and home economics books promoted secular humanism by excluding facts about religion and by failing to present a Biblically-based or divine framework for decision making. The U.S. Court of Appeals for the Eleventh Circuit did not uphold the parents’ contentions and declared:

Examination of the contents of these textbooks, including the passages pointed out by Appellees as particularly offensive, in the context of the books as a whole and the undisputedly nonreligious purpose sought to be achieved by their use, reveals that the message conveyed is not one of en- dorsement of secular humanism or any religion. Rather, the message con- veyed is one of a governmental attempt to instill in Alabama public school children such values as independent thought, tolerance of diverse views, self-respect, maturity, self-reliance and logical decision-making. This is an entirely appropriate secular effect. Indeed, one of the major objectives of public education is the “inculcatRon of] fundamental values necessary to the maintenance of a democratic political system.” *** Nor do these textbooks evidence an attitude antagonistic to theistic belief. The message conveyed by these textbooks with regard to theistic religion is one of neutrality: the text- books neither endorse theistic religion as a system of belief, nor discredit it. Indeed, many of the books specifically acknowledge that religion is one source of moral values and none preclude that possibility. (p. 692)

See Smith v. Board of School Commissioners of Mobile County, 827 F.2d 684 (11th Cir. 1987).

In another instance, a parent objected to the use of the Holt, Rinehart and Winston basic reading series and specifically to a story about mental telepathy. The parent wanted an alternative reading program. In rejecting this petition, the U.S. Circuit Court of Appeals for the Sixth Circuit stated:

The divisiveness and disruption caused by the opt-out remedy would be magnified if the schools had to grant other exemptions. Although the Dis- trict Court found that no other objections to the Hawkins County public school curriculum have been raised and that Hawkins County is homoge- neous from a religious perspective, this case would create a precedent for persons from other religions to request exemptions from core subjects be- cause of religious objections. If the school district were required to accom- modate exceptions and permit other students to opt-out of the reading program and other core courses with materials others found objectionable, this would result in a public school system impossible to administer. (pp. 1072-73)

See Mozert v. Hawkins County Board of Education, 827 F.2d 1058 (6th Cir. 1987), cert. denied, 484 U.S. 1066 (1988).

In a case dealing with an elementary teacher, a federal court of ap- peals held that school officials could not require removal of the Bible from the school’s library but could require the removal of religiously oriented books from the classroom library and require the teacher to keep his Bible out of sight and refrain from silently reading it during classroom hours. See Roberts v. Madigan, 921 F.2d. 1047, cert. denied, 505 U.S. 1218 (1992).

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E. Distribution of Religious literature

Distribution in the public schools of Bibles and other religious literature has been a much litigated issue over the years. In one of the earliest deci- sions, Tudor v. Board of Education of Borough of Rutherford, 100 A.2d 857 (N.J. 1953), allowing Gideons to distribute Bibles to public school students was held to violate the Establishment Clause. In a decision nearly a half- century later addressing the issue of distributing religious or other non- school materials, the court in Muller v. Jefferson Lighthouse School, 98 F.3d 1530 (7th Cir. 1996), cert. denied, 520 U.S. 1156 (1997), held that such distribu- tion may take place, but because a public elementary school is a “nonpublic forum” certain restrictions may be imposed. These include prior approval and screening for offensive messages, time and place requirements, and a disclaimer that the materials were not endorsed by the school. It should be noted that allowing one religious group to distribute its literature opens a forum for such distribution that cannot be closed to groups that are often objects of community opprobrium, such as Satanists or atheists.

Limited and passive distribution of Bibles and other religious mate- rial during school hours was upheld in Peck v. Upshur County Board of Edu- cation, 155 F.3d 274 (4th Cir. 1998). The court cited the well established, historical practice of the school board allowing private groups such as Lit- tle League, Boy Scouts, Girl Scouts, and the Women’s Christian Temper- ance Union to distribute literature. The court considered the “age appropriate” (the ability to distinguish between private and government speech) distribution policy to be a neutral one that did not advance reli- gion, but had a secular purpose of keeping a forum open that was already open to other private materials. Restrictions on the manner in which the Bibles could be made available included:

1. The private groups making the Bibles available were to be responsi- ble for setting up the tables on which the Bibles would be displayed.

2. Bibles not picked up by students during the day were to be removed at the end of that day by the groups responsible for the display.

3. No teacher or other school employee was to participate in these or any other custodial activity relating to the Bible displays.

4. The tables were to be placed in a location in each school . . . that was accessible to students . . . “where students normally congregate and would not feel they were being watched or pressured into taking a Bible.”

5. There was to be a sign on each table that read “Please feel free to take one . . .”

6. The source of the Bible was not to be identified. 7. No one was allowed to stand at the table to encourage or pressure

students to take Bibles.

Schools and the State 69

8. No one was to be allowed to enter classrooms to discuss the Bibles’ availability.

9. The schools were not to announce that Bibles were available or hold any school assembly in connection with the availability of the Bibles. (p. 277)

A school district’s policy of barring distribution of any materials on the sidewalk in front of the high school violated the First Amendment rights of individuals wishing to distribute Gideon Bibles. The court con- tended that the sidewalk was a public forum by virtue of its unrestricted use by the public, and the school’s policy could not be justified to ensure student safety or prevent the distribution of drugs. See Bacon v. Bradley- Bourbonnais High School District, 707 F. Supp. 1005 (Ill. 1989).

F. Released and Shared Time and Religious Instruction

Two significant early United States Supreme Court decisions have ad- dressed the questions of releasing public school students during normal school hours and thereby enabling them to receive religious instruction. In one of the decisions, McCollum v. Board of Education of School District No. 71, 333 U.S. 203 (1948), the Court invalidated a plan under which separate Protestant, Catholic, and Jewish religious classes were taught in the public school buildings. The Court contended that the use of tax-supported prop- erty for religious instruction, the close cooperation between school author- ities and religious officials, and the use of the state’s compulsory-education system all tended to promote religious education, and, therefore, violated the First Amendment. In another decision, Zorach v. Clauson, 343 U.S. 306 (1952), the Court upheld a plan whereby students were released during public school hours to attend religious instruction classes off the school premises. The Court stated:

The government must be neutral when it comes to competition between sects. It may not thrust any sect on any person. It may not make a religious observance compulsory. It may not coerce anyone to attend church, to ob- serve a religious holiday, or to take religious instruction. But it can close its doors or suspend its operations as to those who want to repair to their reli- gious sanctuary for worship or instruction. No more than that is undertaken here. (p. 314)

A federal district court, in Lanner v. Wimmer, 463 F. Supp. 867 (Utah 1978), held that academic credit could not be given in a released-time sem- inary program for courses in the Old Testament and New Testament; how- ever, the U.S. Court of Appeals for the Tenth Circuit modified this decision in 662 F.2d 1349 (10th Cir. 1981). The appellate court ruled that the process of gathering attendance slips and the necessity of judging whether the

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courses were mainly denominational violated the First Amendment. Ad- ditionally, the court held that neither the released-time program itself nor the granting of credit toward participation in extracurricular activities of- fended the Establishment and Free Exercise Clauses.

Several cases have addressed the issue of shared time. In one case, a public school would not enroll a parochial school student in a band course at the public school. The public school had a policy of allowing attendance in its schools only by full-time students. See Snyder v. Charlotte Public School District, 365 N.W.2d 151 (Mich. 1984), in which the Michigan Supreme Court ruled that public schools must open “nonessential elective courses” such as band, art, and advanced mathematics to private school students.

Is it permissible for a public school system to offer Bible study courses? See Wiley v. Franklin, 474 F. Supp. 525 (Term. 1979), which held that such courses could not be offered unless they were (1) secular in na- ture, intent, and purpose; (2) neither advancing nor inhibiting religion; and (3) offered in a manner that avoided excessive entanglement between government and religion. See Crockett v. Sorenson, 568 F. Supp. 1422 (Va. 1983) for a similar view. A course entitled Science of Creative Intelli- genceTranscendental Meditation, which involved religious activity, was held to constitute establishment of religion proscribed by the First Amend- ment. See Malnak v. Yogi, 592 F.2d 197 (3rd Cir. 1979)

G. Religious Holidays

Given the many court decisions requiring school systems not to favor one religion, closing schools on Christian holidays such as Christmas, Easter, and Good Friday has received much attention. Christmas has generally been acknowledged to have sufficient secular connotations to warrant closing the schools during that holiday, but Easter and Good Friday have not been similarly viewed. Consequently, many school systems wishing to continue having a break in the spring have renamed their Easter break “spring break.”

An Illinois statute designating Good Friday as one of twelve state- mandated school holidays was held to be in violation of the Establishment Clause. The court declared that unlike Christmas or Thanksgiving, and to some extent Easter, which have both secular and religious connotations, Good Friday has no secular aspect. Such a statute, the court contended, conveyed the impermissible message that Christianity was the favored re- ligion in the state of Illinois. The court asserted that “The state has ac- corded special recognition to Christianity beyond anything that has been shown to be necessary to accommodate the religious needs of the Christ-

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ian majority.” This suit was brought by a public school teacher who ob- jected to tax dollars being paid to teachers on the Good Friday holiday. See Metzl v. Leininger, 57 F.3d 618 (7th Cir. 1995). However, for an opposite opinion see Koenick v. Felton, 190 F.3d 259 (4th Cir 1999), cert. denied, 528 U.S. 1118 (2000), which held that a Maryland statute creating a public school holiday from Friday before Easter through the Monday after Easter did not violate the Establishment Clause. The court reasoned that the statute passed the three-pronged Lemon test. In its decision, the court ar- gued that the law provided a four-day holiday for all students and teach- ers and did not express a preference for one religion; the statutory holiday around Easter had been part of the school calendar for 130 years and had become part of the community’s expectations and plans; and the board had satisfactorily solved the problem of some Christian religions observ- ing Easter on different days by consulting commercially printed calendars to determine the date of Easter each year.

H. Suggested Guidelines Regarding Religion in the Public Schools

Controversies surrounding separation of church and state issues over the years have resulted in some school officials, teachers, and parents assum- ing that religious expression of any type is either inappropriate or forbid- den altogether in public schools. In some instances, this assumption has resulted in implementation of school policies that appeared to be hostile toward religious expression. In an effort to remedy this situation, guide- lines regarding religion in the public schools were suggested in 1995 both by President Bill Clinton and in a document titled “Religion in the Public Schools: A Joint Statement of Current Law” drafted by a broad-based reli- gious coalition that also included the American Civil Liberties Union and other public policy groups. Updated guidelines, entitled “Religious Ex- pression in Public Schools,” were revised by religious and educational groups from across the political and religious spectrum and distributed by the Department of Education in 1998. The revised guidelines include the following:

Student prayer and religious discussion The Establishment Clause of the First Amendment does not prohibit purely private religious speech, by students. Students therefore have the same right to engage in individual or group prayer and religious discussion during the school day as they do to engage in other comparable activity. For example, students may read their Bibles or other scriptures, say grace before meals, and pray before tests to the same extent they may engage in comparable nondisruptive activities. Local school authorities possess substantial discre- tion to impose rules of order and other pedagogical restrictions on student

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activities, but they may not structure or administer such rules to discrimi- nate against religious activity or speech. Generally, students may pray in a nondisruptive manner when not engaged in school activities or instruction, and subject to the rules of that normally pertain in the applicable setting. Specifically, students in informal settings, such as cafeterias and hallways, may pray and discuss their religious views with each other, subject to the same rules of order as apply to other student activities and speech. Students may also speak to, and attempt to persuade, their peers about religious topics just as they do with regard to political top- ics. School officials, however, should intercede to stop student speech that constitutes harassment aimed at a student or a group of students. Students may also participate in before- or after-school events with religious content, such as “see you at the flag pole” gatherings, on the same terms as they may participate in other noncurriculum activities on school premises. School officials may neither discourage nor encourage participation in such an event. The right to engage in voluntary prayer or religious discussion free from dis- crimination does not include the right to have a captive audience listen, or to compel other students to participate. Teachers and school administrators should ensure that no student is in any way coerced to participate in reli- gious activity.

Graduation prayer and baccalaureates Under current Supreme Court decisions, school officials may not mandate or organize prayer at graduation, nor organize religious baccalaureate cere- monies. If a school generally opens its facilities to private groups, it must make its facilities available on the same terms to organizers of privately sponsored religious baccalaureate services. A school may not extend prefer- ential treatment to baccalaureate ceremonies and may in some instances be obliged to disclaim official endorsement of such ceremonies. Official neutrality regarding religious activity Teachers and school administrators, when acting in those capacities, are rep- resentatives of the state and are prohibited by the establishment clause from soliciting or encouraging religious activity, and from participating in such activity with students. Teachers and administrators also are prohibited from discouraging activity because of its religious content, and from soliciting or encouraging antireligious activity. Teaching about religion Public schools may not provide religious instruction, but they may teach about religion, including the Bible or other scripture; the history of religion, comparative religion, the Bible (or other scripture) -as-literature, and the role of religion in the history of the United States and other countries all are per- missible public school subjects. Similarly, it is permissible to consider reli- gious influences on art, music, literature, and social studies. Although public schools may teach about religious holidays, including their religious aspects, and may celebrate the secular aspects of holidays, schools may not observe holidays as religious events or promote such observance by students. Student assignments Students may express their beliefs about religion in the form of homework, artwork, and other written and oral assignments free of discrimination

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based on the religious content of their submissions. Such home and class- room work should be judged by ordinary academic standards of substance and relevance, and against other legitimate pedagogical concerns identified by the school.

Religious literature Students have a right to distribute religious literature to their schoolmates on the same terms as they are permitted to distribute other literature that is un- related to school curriculum or activities. Schools may impose the same rea- sonable time, place, and manner or other constitutional restrictions on distribution of religious literature as they do on nonschool literature gener- ally, but they may not single out religious literature for special regulation.

Religious excusals Subject to applicable State laws, schools enjoy substantial discretion to ex- cuse individual students from lessons that are objectionable to the student or the students’ parents on religious or other conscientious grounds. However, students generally do not have a Federal right to be excused from lessons that may be inconsistent with their religious beliefs or practices. School offi- cials may neither encourage nor discourage students from availing them- selves of an excusal option.

Released time Subject to applicable State laws, schools have the discretion to dismiss stu- dents to off-premises religious instruction, provided that schools do not en- courage or discourage participation or penalize those who do not attend. Schools may not allow religious instruction by outsiders on school premises during the school day.

Teaching values Though schools must be neutral with respect to religion, they may play an active role with respect to teaching civic values and virtue, and the moral code that holds us together as a community. The fact that some of these values are held also by religions does not make it unlawful to teach them in school.

Student garb Schools enjoy substantial discretion in adopting policies relating to student dress and school uniforms. Students generally have no Federal right to be exempted from religiously neutral and generally applicable school dress rules based on their religious beliefs or practices; however, schools may not single out religious attire in general, or attire of a particular religion, for pro- hibition or regulation. Students may display religious messages on items of clothing to the same extent that they are permitted to display other compa- rable messages. Religious messages may not be singled out for suppression, but rather are subject to the same rules as generally apply to comparable messages.

The guidelines state that generally there is no federal right “to be excused from lessons that may be inconsistent with their religious beliefs or prac- tices” and “to be exempted from religiously neutral and generally applic- able school dress rules based on their religious beliefs or practices”; however, students may have such protection under state constitutional free exercise provisions.

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III. USE OF FACILITIES

Another issue that often arises at the local school level concerns the extent, if any, that school buildings may be used by the public during noninstruc- tional hours. In most instances, the local school board has either implied or specific authority to promulgate reasonable rules for the use of school buildings when they are not being used for school purposes or when their use does not interfere with normal school operations. Controversies often arise when the use of school facilities is requested by a group whose pur- pose or speaker may be offensive to some in the community, that repre- sents certain religious organizations, or that is primarily interested in using the facility for commercial gain.

A general rule that has evolved concerning the use of school facilities suggests, that if facilities are to be leased to one type of group, they must be available to all within the group. However, such use may be denied if (1) the user fails or refuses to abide by reasonable rules and regulations pertaining to the use, (2) there is a demonstrated danger of violence or dis- ruption associated with meetings of this particular group, or (3) the meet- ing violates a local ordinance or either state or federal constitutional provisions or law. It should be noted that in the absence of a state statute mandating their use, local systems are not obligated to make school build- ings available for public activities.

Those denied use of a school facility often allege that their right of freedom of expression has been denied. The United States Supreme Court addressed this notion in Police Department of the City of Chicago v. Mosley, 408 U.S. 92 (1972), when it stated:

Necessarily, then, under the Equal Protection Clause, not to mention the First Amendment itself, government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views. And it may not select which issues are worth discussing or debating in public facilities. There is an “equality of status in the field of ideas,” and government must afford all points of view an equal opportunity to be heard. Once a forum is opened up to assembly or speaking by some groups, government may not prohibit others from assem- bling or speaking on the basis of what they intend to say. Selective exclusions from a public forum may not be based on content alone, and may not be jus- tified by reference to content alone. (p. 96)

Although allowing buildings to be used for social, civic, and recre- ational meetings outside of school hours, many school systems fearing lawsuits, have not allowed their buildings to be used for religious pur- poses. Such restrictions resulted in many lawsuits brought by churches and religious organizations, over the years, claiming unfair treatment. Al- though not specifically addressing the issue of after-hours church use, a unanimous Supreme Court decision in Lamb’s Chapel v. Center Moriches Union Free School District ruled that a church should be allowed to show,

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after normal school hours on school premises, a family-oriented movie that presented views about family issues and child-rearing from a Christ- ian perspective.

LAMB’S CHAPEL v. CENTER MORICHES UNION FREE SCHOOL DISTRICT

Supreme Court of the United States, 1993 508 U.S. 384

JUSTICE WHITE delivered the opinion of the Court. Section 414 of the New York Education Law (McKinney 1988 and

Supp. 1993), authorizes local school boards to adopt reasonable regulations for the use of school property for 10 specified purposes when the property is not in use for school purposes. Among the permitted uses is the holding of “social, civic and recreational meetings and entertainments, and other uses pertaining to the welfare of the community; but such meetings, entertain- ment and uses shall be non-exclusive and open to the general public.” The list of permitted uses does not include meetings for religious purposes. * * *

Pursuant to §414’s empowerment of local school districts, the Board of Center Moriches Union Free School District (District) has issued rules and regulations with respect to the use of school property when not in use for school purposes. The rules allow only 2 of the 10 purposes authorized by §414: social, civic, or recreational uses (Rule 10) and use by political orga- nizations if secured in compliance with §414 (Rule 8). Rule 7, however, con- sistent with the judicial interpretation of state law, provides that “RI he school premises shall not be used by any group for religious purposes.”

The issue in this case is whether, against this background of state law, it violates the Free Speech Clause of the First Amendment, made applicable to the States by the Fourteenth Amendment, to deny a church access to school premises to exhibit for public viewing and assertedly religious purposes, a film dealing with family and child-rearing issues faced by parents today.

Petitioners (Church) are Lamb’s Chapel, an evangelical church in the community of Center Moriches, and its pastor John Steigerwald. Twice the Church applied to the District for permission to use school facilities to show a six-part film series containing lectures by Doctor James Dobson. A brochure provided on request of the District identified Dr. Dobson as a li- censed psychologist, former associate clinical professor of pediatrics at the University of Southern California, best-selling author, and radio commenta- tor. The brochure stated that the film series would discuss Dr. Dobson’s views on the undermining influences of the media that could only be coun- terbalanced by returning to traditional, Christian family values instilled at an early stage. The brochure went on to describe the contents of each of the six parts of the series. The District denied the first application, saying that “Nhis

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film does appear to be church related and therefore your request must be re- fused.” The second application for permission to use school premises for showing the film, which described it as a “Family oriented moviefrom the Christian perspective,” was denied using identical language.

The Church brought suit in District Court, challenging the denial as a violation of the Freedom of Speech and Assembly Clauses, the Free Exercise Clause, and the Establishment Clause of the First Amendment, as well as the Equal Protection Clause of the Fourteenth Amendment. As to each cause of action, the Church alleged that the actions were undertaken under color of state law, in violation of 42 U.S.C. §1983. The District Court granted sum- mary judgment for respondents, rejecting all of the Church’s claims. * * * Noting that the District had not opened its facilities to organizations similar to Lamb’s Chapel for religious purposes, the District Court held that the de- nial in this case was viewpoint neutral and, hence, not a violation of the Freedom of Speech Clause. The District Court also rejected the assertion by the Church that denying its application demonstrated a hostility to religion and advancement of nonreligion not justified under the Establishment of Re- ligion Clause of the First Amendment.

The Court of Appeals affirmed the judgment of the District Court “in all respects.” It held that the school property, when not in use for school pur- poses, was neither a traditional nor a designated public forum; rather, it was a limited public forum open only for designated purposes, a classification that “allows it to remain non-public except as to specified uses.” The court observed that exclusions in such a forum need only be reasonable and view- point neutral, and ruled that denying access to the Church for the purpose of showing its film did not violate this standard. Because the holding below was questionable under our decisions, we granted the petition for certiorari, which in principal part challenged the holding below as contrary to the Free Speech Clause of the First Amendment.

There is no question that the District, like the private owner of prop- erty, may legally preserve the property under its control for the use to which it is dedicated. * * * It is also common ground that the District need not have permitted after-hours use of its property for any of the uses permitted by §414 of the state education law. The District, however, did open its prop- erty for 2 of the 10 uses permitted by §414. The Church argued below that because under Rule 10 of the rules issued by the District, school property could be used for “social, civic, and recreational” purposes, the District had opened its property for such a wide variety of communicative purposes that restrictions on communicative uses of the property were subject to the same constitutional limitations as restrictions in traditional public fora such as parks and sidewalks. Hence, its view was that subject-matter or speaker ex- clusions on District property were required to be justified by a compelling state interest and to be narrowly drawn to achieve that end. Both the Dis- trict Court and the Court of Appeals rejected this submission, which is also

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presented to this Court. The argument has considerable force, for the Dis- trict’s property is heavily used by a wide variety of private organizations, in- cluding some that presented a “close question,” which the Court of Appeals resolved in the District’s favor, as to whether the District had in fact already opened its property for religious uses. We need not rule on this issue, how- ever, for even if the courts below were correct in this respectand we shall assume for present purposes that they werethe judgment below must be reversed.

With respect to public property that is not a designated public forum open for indiscriminate public use for communicative purposes, we have said that “[c]ontrol over access to a nonpublic forum can be based on subject mat- ter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral.” The Court of Appeals appeared to recognize that the total ban on using District property for religious purposes could survive First Amendment challenge only if ex- cluding this category of speech was reasonable and viewpoint neutral. The court’s conclusion in this case was that Rule 7 met this test. We cannot agree with this holding, for Rule 7 was unconstitutionally applied in this case.

The Court of Appeals thought that the application of Rule 7 in this case was viewpoint neutral because it had been and would be applied in the same way to all uses of school property for religious purposes. That all reli- gions and all uses for religious purposes are treated alike under Rule 7, how- ever, does not answer the critical question whether it discriminates on the basis of viewpoint to permit school property to be used for the presentation of all views about family issues and child-rearing except those dealing with the subject matter from a religious standpoint.

There is no suggestion from the courts below or from the District or the State that a lecture or film about child-rearing and family values would not be a use for social or civic purposes otherwise permitted by Rule 10. That subject matter is not one that the District has placed off limits to any and all speakers. Nor is there any indication in the record before us that the appli- cation to exhibit the particular film involved here was or would have been denied for any reason other than the fact that the presentation would have been from a religious perspective. * * * The film involved here no doubt dealt with a subject otherwise permissible under Rule 10, and its exhibition was denied solely because the film dealt with the subject from a religious standpoint. The principle that has emerged from our cases “is that the First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others.” * * *

The District, as a respondent, would save its judgment below on the ground that to permit its property to be used for religious purposes would be an establishment of religion forbidden by the First Amendment. This Court suggested in Widmar v. Vincent, that the interest of the State in avoiding an Establishment Clause violation “may be [a] compelling” one justifying an

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abridgment of free speech otherwise protected by the First Amendment; but the Court went on to hold that permitting use of University property for reli- gious purposes under the open access policy involved there would not be incompatible with the Court’s Establishment Clause cases.

We have no more trouble than did the Widmar Court in disposing of the claimed defense on the ground that the posited fears of an Establishment Clause violation are unfounded. The showing of this film would not have been during school hours, would not have been sponsored by the school, and would have been open to the public, not just to church members. The District property had repeatedly been used by a wide variety of private or- ganizations. Under these circumstances, as in Widmar, there would have been no realistic danger that the community would think that the District was endorsing religion or any particular creed, and any benefit to religion or to the Church would have been no more than incidental. As in Widmar, permitting District property to be used to exhibit the film involved in this case would not have been an estqblishment of religion under the three-part test articulated in Lemon v. Kurtzman: The challenged governmental action has a secular purpose, does not have the principal or primary effect of ad- vancing or inhibiting religion, and does not foster an excessive entangle- ment with religion.

The District also submits that it justifiably denied use of its property to a “radical” church for the purpose of proselytizing, since to do so would lead to threats of public unrest and even violence. There is nothing in the record to support such a justification, which in any event would be difficult to de- fend as a reason to deny the presentation of a religious point of view about a subject the District otherwise makes open to discussion on District property.

* * For the reasons stated in this opinion, the judgment of the Court of Ap-

peals is

Reversed.

JUSTICE SCALIA, with whom JUSTICE THOMAS joins, concurring in the judgment.

I join the Court’s conclusion that the District’s refusal to allow use of school facilities for petitioners’ film viewing, while generally opening the schools for community activities, violates petitioners’ First Amendment free- speech rights. I also agree with the Court that allowing Lamb’s Chapel to use school facilities poses “no realistic danger” of a violation of the Establish- ment Clause, but I cannot accept most of its reasoning in this regard. The Court explains that the showing of petitioners’ film on school property after school hours would not cause the community to “think that the District was endorsing religion or any particular creed,” and further notes that access to school property would not violate the three-part test articulated in Lemon v. Kurtzman.

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As to the Court’s invocation of the Lemon test: Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establish- ment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. Its most re- cent burial, only last Term, was, to be sure, not fully six-feet under: our deci- sion in Lee v. Weisman, conspicuously avoided using the supposed “test” but also declined the invitation to repudiate it. Over the years, however, no fewer than five of the currently sitting justices have, in their own opinions, personally driven pencils through the creature’s heart (the author of today’s opinion repeatedly), and a sixth has joined an opinion doing so. * * *

The secret of the Lemon test’s survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will. See, e.g., Lynch v. Donnelly (noting instances in which Court has not applied Lemon test). When we wish to strike down a practice it forbids, we invoke it, see, e.g., Aguilar v. Felton (striking down state remedial education program administered in part in parochial schools); when we wish to uphold a practice it forbids, we ignore it entirely, see Marsh v. Chambers (upholding state legislative chaplains). Sometimes, we take a middle course, calling its three prongs “no more than helpful sign- posts.” Such a docile and useful monster is worth keeping around, at least in

a somnolent state; one never knows when one might need him. For my part, I agree with the long list of constitutional scholars who

have criticized Lemon and bemoaned the strange Establishment Clause geometry of crooked lines and wavering shapes its intermittent use has

produced. * * * * * *

Notes and Questions

Given the wording in Lamb’s Chapel, does the decision imply that the Court would uphold after-hours church use if other organizations were al- lowed to use school buildings? Relying on Lamb’s Chapel, a federal dis- trict court held that refusing to rent a high school gymnasium to a private parents’ group to hold a baccalaureate ceremony for graduating seniors violated the First Amendment. The court declared that the baccalaureate ceremony was privately sponsored, open to the public, unrelated to any school or state activity, and participation in the ceremony was completely voluntary. See Shumway v. Albany County School District No. 1 Board of Edu- cation, 826 F. Supp. 1320 (Wyo. 1993).

Citing the Lamb’s Chapel decision, a court held that a policy that did not allow a community-based, nonaffiliated group that sought to foster the moral development of junior high students from a Christian perspective to

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hold meetings immediately after school was unconstitutional. The court reasoned that allowing other secular groups concerned with the moral de- velopment of young people such as Scouts (Girl, Boy, Cub, Tiger Cub, and Brownies) to meet immediately after school resulted in viewpoint dis- crimination that did not serve a compelling governmental interest. See Good News/Good Sports Club v. School District of the City of Ladue, 28 F.3d 1501 (8th Cir. 1994). For similar rulings see Local Organizing Committee, Mil- lion Man March v. Cook, 922 Fed. Supp. 1494 (Co. 1996) and Trinity United Methodist Parish v. Board of Education of the City School District of Newburgh, 907 F. Supp. 707 (N.Y. 1995).

A school district’s Community Use Policy, under which a nonde- nominational children’s club was denied use of a school cafeteria, was challenged in Good News Club v. Milford Central School, 202 F.3d 502 (2nd Cir. 2000), cert. granted 531 U.S. 923 (2000). The policy provided that facil- ities could be used for “holding social, civic and recreational meetings and entertainment events and other uses pertaining to the welfare of the com- munity, provided that such uses shall be nonexclusive and shall beopen to the general public” and that such use must be for nonreligious purposes. Although allowing the Boy Scouts and 4-H to use its facilities, the school district denied use to a community-based Christian youth organization that argued its activities were secular and similar to organizations that were allowed to use school facilities. In upholding the school system, a federal court held that the subject matter of the club was religious in na- ture and not merely a discussion of secular matters such as the “moral de- velopment of young people.” The court noted that meetings included prayer, singing of Christian songs, memorization and recitation of Biblical verses and scripture, and the use of teaching materials and lessons that were designed to inspire a personal relationship with Christ. Because this was a limited public forum, the court held the school district could impose a blanket exclusion on certain types of speech. However, once the district allowed expressive activities of a certain genre, it could not selectively deny access to that genre. In its holding, the court recognized that the school district had not allowed organizations with similar strongly based sectarian programs to use school facilities.

Gregoire v. Centennial School District, 907 F.2d 1366 (3rd Cir. 1990), cert. denied, 498 U.S. 899 (1990) focuses on the legal characteristics of the forum in which disputed activity takes place. The court’s description of a tradi- tional public forum, a designated open public forum that is sometimes re- ferred to as a limited public forum, and a nonpublic forum should be useful to the school law student.

After-hours use of school facilities for religious services was ad- dressed in Bronx Household of Faith v. Community School District No. 10, 127 F. 3rd 207 (2nd Cir. 1997), cert. denied, 523 U.S. 1074 (1998), where a district policy was challenged which stated:

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No outside organization or group may be allowed to conduct religious ser- vices or religious instruction on school premises after school. However, the use of school premises by outside organizations or groups after school for the purposes of discussing religious material or material which contains a re- ligious viewpoint or for distributing such material is permissible. (p. 210)

In its decision upholding the policy, the court identified the policy as cre- ating a limited public forum. Therefore, prohibiting use for religious ser- vices, but permitting speech from a religious viewpoint, was held to be reasonable and viewpoint neutral and did not violate the First Amend- ment’s free speech provisions.

A rental regulation was not upheld under which a church paid a noncommercial rate (based on actual cost) for the first five years but, there- after, required the church to pay a rate that escalated to the commercial rate over the next four years. The commercial rate was five times the non- commercial rate and was intended to reflect market rental rates. The fed- eral appellate court reasoned that this policy, under which rates escalated, discriminated against religious speech in violation of the Free Speech and Free Exercise Clauses. See Fairfax Covenant Church v. Fairfax City School Board, 17 F.3d 703 (4th Cir. 1994) cert. denied, 511 U.S. 1143 (1994). However, a school district’s policy of renting its elementary school buildings for use immediately before and after regular school hours was held to be uncon- stitutional. In its holding, a federal district court contended that such a practice creates an appearance of official support for religious instruction and that it benefits from students’ compliance with compulsory atten- dance law. See Ford v. Manuel, 629 F. Supp. 771 (Ohio 1985).

In addressing the issue of conditioning the off-time use of public school facilities on the political or ideological views of the applicant, on its membership policies, or on its attendance restrictions, a federal appellate court declared that the school system was not responsible for the views ex- pressed or for the composition of the group that expressed them. The court also stated that “merely permitting the occasional and temporary use of state facilities by racially discriminatory groups along with all others does not constitute significant state involvement in their practices.” See Knights of the Ku Klux Klan v. East Baton Rouge Parish School Board, 578 F.2d 1122 (5th Cir. 1978). Also see National Socialist White People’s Party v. Ringers, 473 F.2d

1010 (4th Cir. 1973). Local business people are often concerned that allowing the use of

school facilities, which have been constructed at public expense, is a form of competition against them. This view was not upheld in Hall v. Shelby County Board of Education, 472 S.E.2d 489 (Ky. 1971), where a local civic group organized and charged admission to musical programs. All profits were used for civic activities.

Assume that a local school board had a policy of allowing school fa- cilities to be used by local groups. Would the school board be on sound

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constitutional footing if it barred any of the following local groups: the Gay Liberation League? Committee to Legalize the Use of Marijuana, Cocaine, and Heroin? American Nazis? Suicide Advocates? Abortion Ad- vocates? Committee to Recall Local School Board Members? Devil wor- shipers? Nudists? What is the basis for your response in each of these instances?

Does your state have legislation pertaining to the use of public school facilities when they are not being used by the school system? Does your public school system have policies regulating the use of facilities?

IV. AID TO NONPUBLIC SCHOOLS

Approximately 12 percent of American students attend nonpublic schools. Nearly two-thirds of those students are enrolled in Catholic schools, and approximately 15 percent of nonpublic school students attend non-church- related schools. Legislatures in several states having large numbers ofnon- public school students have passed measures that have attempted to financially assist the nonpublic school sector. Because these measures have raised serious questions pertaining to the proper separation of church and state under the First Amendment, their constitutionality has been exam- ined by the United States Supreme Court.

In Lemon v. Kurtzman, 403 U.S. 602 (1971) the Court struck down both an attempt by the Rhode Island legislature to provide a 15 percent salary supplement to be paid to those teachers dealing with secular subjects in nonpublic schools and a Pennsylvania statute that provided financial sup- port to nonpublic elementary and secondary schools by way of reim- bursement for the cost of teachers’ salaries, textbooks, and instructional materials in specified secular subjects. The Court held that the “cumula- tive impact of the entire relationship arising under the statutes in each state involves excessive entanglement between government and religion.” Furthermore, the Court reasoned that these state programs had a divisive political potential that would be a threat to the normal political process. Because candidates would be forced to declare their position on amounts of money to be expended in such programs, political division along reli- gious lines would develop. The Court contended that this was a principal evil that the First Amendment was intended to protect against.

A New York statute was struck down by the Court in Levitt v. Com- mittee for Public Education and Religion Liberty, 413 U.S. 472 (1973). Under this statute, nonpublic schools would have been reimbursed for expenses incurred in administering, grading, compiling, and reporting test results; maintaining pupil attendance and health records; recording qualifications and characteristics of personnel; and preparing and submitting various re- ports to the state. The Court ruled that such aid would have the primary

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purpose or effect of advancing religion or religious education and that it would lead to excessive entanglement between church and state. However, in Committee for Public Education and Religious Liberty v. Regan, 442 U.S. 928 (1980), a five-to-four opinion, the Court upheld a revised version of the law that had been declared unconstitutional in Levitt. The revised law allowed the state to reimburse private schools, including sectarian schools, for the expenses connected with keeping official attendance and other records, for administering three state tests, and for grading two of the tests.

Another New York law was invalidated, in Committee for Public Edu- cation and Religious Liberty v. Nyquist, 413 U.S. 756 (1973), which provided for the maintenance and repair of nonpublic school facilities, tuition reim- bursement for parents of nonpublic school students, and tax relief for those not qualifying for tuition reimbursement. And a Pennsylvania law providing for parent reimbursement for nonpublic school students was also invalidated in Sloan v. Lemon, 413 U.S. 825 (1973). The majority opin- ion declared that there was no constitutionally significant difference between Pennsylvania’s tuition-grant scheme and New York’s tuition- reimbursement program, which was held violative of the Establishment Clause in Nyquist.

In Meek v. Pittenger, 421 U.S. 349 (1975), the Court was asked to rule on a Pennsylvania statute that provided for auxiliary services for excep- tional, remedial, or educationally disadvantaged nonpublic school stu- dents; for lending instructional materials and equipment to nonpublic schools; and for lending textbooks to nonpublic school students. The Court invalidated all but the textbook-loan provision of the Pennsylvania law. It held that the act had the unconstitutional primary effect of advanc- ing religion because of the predominantly religious character of the bene- fiting schools. Additionally, the Court stated that the act provided excessive opportunities for political fragmentation and division along re- ligious lines. Expanding on this theme, the Court declared:

This potential for political entanglement, together with the administrative entanglement which would be necessary to ensure that auxiliary-services personnel remain strictly neutral and nonideological when functioning in church-related schools . . . violates the constitutional prohibition against laws “respecting an establishment of religion.” (p. 372)

In another decision, Wolman v. Walter, 433 U.S. 229 (1977), the Court addressed the constitutionality of an Ohio statute that had attempted to conform to the Meek ruling. The decision, which revealed wide disagree- ment among the justices, held that the provisions providing nonpublic school students with books, standardized testing and scoring, diagnostic services, and therapeutic and remedial services were constitutional. How- ever, provisions relating to instructional materials and equipment and field-trip services were held to be unconstitutional.

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84 CHAPTER TWO

Initially, the major impetus for obtaining government financial assis- tance for nonpublic schools came from Catholic parochial school support- ers who were largely responsible for bringing the cases discussed above. These supporters thought it only fair to receive such assistance because, al- though they were paying taxes for the public schools, they were not using them. Opponents, some of whom were accused of having an anti-Catholic bias, argued that tax money should not be expended for schools that had a religious orientation. In time, supporters of assistance to nonpublic schools were joined by those who were interested in government aid to private schools in general and those who thought if nonpublic schools re- ceived aid, religiously oriented schools should not be discriminated against. Two United States Supreme Court decisions, Agostini v. Felton (1997) and Mitchell v. Helms (2000), reflected a shift in the Court’s thinking regarding financial aid to nonpublic religious schools.

Using federal education funds under Chapter I (formerly Title I of the Elementary and Secondary Education Act) to pay public school teach- ers who taught in programs aimed at helping low-income, educationally deprived students within parochial schoolswas allowed in Agostini v. Fel- ton, 521 U.S. 203 (1997). This five-to-four decision overruled both Aguilar v. Felton, 473 U.S. 402 (1985) and Grand Rapids School District v. Ball, 473 U.S. 373 (1985), which had not allowed the practice. In Agostini, the Court aban- doned its previous assumption that public school teachers within parochial schools would inevitably inculcate religion to their students or that their presence constituted a symbolic union between government and religion. The Court established the following criteria for determining whether or not school-aid programs have an impermissible effect: (1) whether the aid results in governmental indoctrination, (2) whether the program defines its recipients by reference to religion, and (3) whether the aid creates an excessive entanglement between government and religion. The United States Supreme Court rarely overrules previous decisions. It does so when a majority on the Court prevails on a doctrinal position, such as in this case, of where to place the proverbial “line in the sand” on the issue of separation of church and state.

A federal program involving Chapter 2 (technically Subchapter VI of Chapter 70 of 20 U.S.C.) that loaned computers, software, and library books to religious schools was upheld in a six-to-three decision in Mitchell v. Helms, 530 U.S. 793 (2000). The plurality opinion held that the aid was al- located on the basis of neutral, secular criteria that neither favored nor dis- favored religion, and was made available to both religious and secular beneficiaries on a nondiscriminatory basis. However, the concurring opin- ion states:

The plurality announces a rule of unprecedented breadth for the evaluation of Establishment Clause challenges to government school-aid programs. That rule is particularly troubling because, first, its treatment of neutrality

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comes close to assigning that factor singular importance . . . . Second, the plurality’s approval of actual diversion of government aid to religious in- doctrination is in tension with this Court’s precedents. BecauseAgostini rep- resents the Court’s most recent attempt to devise a general framework [its] criteria should control here.

Mitchell overruled key holdings in Meek v. Pittenger and Wolman v. Walter that had barred the government from providing maps, charts, over- head projectors, and other instructional materials to religious schools.

In a five-to-four decision, Mueller v Allen., 463 U.S. 388 (1983), the Court upheld a Mirmesota law permitting taxpayers to claim a deduction from gross income on their state income tax returns for expenses incurred for “tuition, textbooks and transportation” not exceeding $500 for depen- dents in grades K-6 and $700 for dependents in grades 7-12. A distinction between this decision and the Court’s 1973 Nyquist ruling appears to be that Nyquist rejected a tax credit for parents whose children attended non- public school, whereas Mueller allowed a tax deduction for all parents, in- cluding those whose children attended public schools. The tax deduction, the Mueller majority reasoned, was simply part of the state’s tax law per- mitting deductions for a number of things. The dissenters argued that the difference between a tax credit and a deduction was “a distinction without a difference,” and that 90 percent of private school students were in sec- tarian schools. However, a New Jersey statute that provided taxpayers with a $1,000 tax deduction for each child attending nonpublic schools was held to be unconstitutional. See Public Funds for Public Schools of New Jersey v. Byrne, 590 F.2d 514 (3rd Cir. 1979), aff’d, 442 U.S. 907 (1979).

The United States Supreme Court, in a five-to-four decision, upheld the constitutionality of providing transportation to parochial school stu- dents in Everson v. Board of Education of Township of Ewing, 330 U.S. 1 (1947).

Over thirty years later, a Rhode Island statute providing for the busing of students to nonpublic schools was held not to violate state or federal con- stitutional provisions. See Members of the Jamestown School Committee v. Schmidt, 405 A.2d 16 (R.I. 1979). The Connecticut Supreme Court was asked to determine whether a state statute authorizing transportation for private and parochial students required transportation by aschool district on days that public schools were not in session. In determining that such transportation was required, the court held that the intent of the statute was to provide private school students with the same quality of trans- portation public school students received, regardless of schools’ schedules. See Board of Education of the Town of Stafford v. State Board of Education, 243

Conn. 772 (1998). Under the Internal Revenue Code, tax exemptions may begranted to

“corporations . . . organized and operated exclusively for religious, chari- table . . . or educational purposes.” A private religious university was de- voted to the teaching and propagation of fundamentalist religious beliefs,

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which included that God intended segregation of the races and that scrip- ture forbids interracial dating and marriage. Students were expelled if they did not follow these prohibitions. The Internal Revenue Service, up- held by the Supreme Court, withdrew the college’s tax exempt status, hav- ing determined that the racial policy was not “charitable” as required by the Code. See Bob Jones University v. United States, 461 U.S. 574 (1983).

Does your state have any provisions for aid to nonpublic schools?

V. SCHOOL FEES

Disputes often arise in regard to the charging of fees by public school sys- tems for supplies, materials, extracurricular activities, transportation to school, and texts. Whether or not fees may be charged legitimately de- pends on statutory provisions or the interpretation of a state’s constitu- tion. Although decisions in several states have denied the charging of fees for textbooks and/or supplies, decisions in other states have taken an op- posite view.

The California Supreme Court considered the issue of charging fees for extracurricular activities in Hartzell v. Connell.

HARTZELL v. CONNELL Supreme Court of California, 1984

679 P.2d 35

BIRD, Chief Justice. May a public high school district charge fees for educational programs

simply because they have been denominated “extracurricular”? The Santa Barbara High School District (District) offers a wide variety

of extracurricular activities, ranging from cheerleading to madrigal singing, and from archery to football. Many of these activities are of relatively recent origin. For example, in 1956, Santa Barbara High School fielded six athletic teams while today there are thirty-eight.

Prior to the 1980-1981 school year, any student could participate in these activities free of charge. The programs were financed by a combination of District contributions (mostly state aid and local tax revenues), ticket sales, and fundraising activities conducted by the constituent high schools.

In the spring of 1980, the District school board (Board) decided to cut its budget by $1.1 million. This decision reflected a drop in revenues due to the combined effects of inflation, declining enrollment, and the adoption of Proposition 13. Among the items to be reduced was the District’s contribu- tion to the high school extracurricular programs.

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The Board considered two plans for adapting the programs to fit its re- duced budget. The first plan called for a major cut in interscholastic athletic competition, including the reduction of the high school program from over 30 teams to only 8 and the elimination of interscholastic competition at the ninth grade level. Under this plan, the surviving programs were to remain

open to all students free of charge. The second plan provided for a less extensive cut in athletic competi-

tionelimination of the ninth grade program only. To make up the differ- ence, it proposed to raise money by charging students fees for participation in dramatic productions, musical performances, and athletic competition.

The Board chose the second option. Under the plan finally adopted, students are required to pay $25 for each athletic team in which theywish to participate, and $25 per category for any or all activities in each of the fol- lowing four categories: (1) dramatic productions (e.g., plays, dance perfor-

mances and musicals); (2) vocal music groups (e.g., choir and madrigal groups); (3) instrumental groups (e.g., orchestra, marching band, and related

groups such as the drill team and flag twirlers); and (4) cheerleading groups. * * *

In an attempt to ensure that the fees would not prevent any students from participating, the District has implemented a fee waiver program. Upon showing a financial need, a student may obtain a “scholarship” to participate without paying the fee. The standard of need is similar to that of the free

lunch program. The fee-waiver policy has been supplemented with an outreach pro-

gram. Teachers and coaches are asked to inform their principals of any stu- dents who, though expected to participate in an activity, do not do so. These students are then interviewed by the principal to determine whether the fee

prevented them from participating. * * *

The trial court rejected all of the plaintiffs’ claims, primarily on the ground that none of the activities covered by the fee program are “integral”

to credit courses. The California Constitution requires the Legislature to “provide for a

system of common schools by which a free school shall be kept up and sup-

ported in each district. . . .” (Cal. Const., art. IX, § 5, emphasis added.) This provision entitles “the youth of the State . . . to be educated at the public

expense.” * * * Plaintiffs assert that the imposition of fees for educational extracurricu-

lar activities violates the free school guarantee. They are correct. * * *

Accordingly, this court holds that all educational activitiescurricular or “extracurricular”offered to students by school districts fall within the free school guarantee of article IX, section 5. Since it is not disputed that the

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programs involved in this case are “educational” in character, they fall within that guarantee.

Defendants argue, however, that the fee waiver policy for needy stu- dents satisfies the requirement of the free school guarantee. They suggest that the right “to be educated at the public expense” * * * amounts merely to a right not to be financially prevented from enjoying educational opportuni- ties. This argument contradicts the plain language of the Constitution.

In guaranteeing “free” public schools, article IX, section 5 fixes the pre- cise extent of the financial burden which may be imposed on the right to an educationnone. * * *A school which conditions a student’s participation in educational activities upon the payment of a fee clearly is not a “free school.”

The free school guarantee reflects the people’s judgment that a child’s public education is too important to be left to the budgetary circumstances and decisions of individual families. It makes no distinction between needy and nonneedy families. Individual families, needy or not, may value educa- tion more or less depending upon conflicting budget priorities. * * *

The free school guarantee lifts budgetary decisions concerning public education out of the individual family setting and requires that such decisions be made by the community as a whole. Once the community has decided that a particular educational program is important enough to be offered by its public schools, a student’s participation in that program cannot be made to depend upon his or her family’s decision to pay a fee or buy a toaster.

Nor may a student’s participation be conditioned upon application for a special waiver. The stigma that results from recording some students as needy was recognized early in the struggle for free schools. * * *

Finally, defendants warn that, if the fees are invalidated, many school districts may be forced to drop some extracurricular activities. They argue that invalidation wouldin the name of the free school guaranteeproduce the anomalous result of reducing the number of educational opportunities available to students.

This court recognizes that, due to legal limitations on taxation and spending * * *, school districts do indeed operate under difficult financial constraints. However, financial hardship is not defense to a violation of the free school guarantee. * * *

Perhaps, in the view of some, public education could be more effi- ciently financed by peddling it on the open market. Under the California Constitution, however, access to public education is a right enjoyed by all not a commodity for sale. Educational opportunities must be provided to all students without regard to their families’ ability or willingness to pay fees or request special waivers. This fundamental feature of public education is not contingent upon the inevitably fluctuating financial health of local school districts. A solution to those financial difficulties must be found elsewhere for example, through the political process.

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In conclusion, this court holds that the imposition of fees for educa- tional activities offered by public high school districts violates the free school guarantee. The constitutional defect in such fees can neither be corrected by providing waivers to indigent students, nor justified by pleading financial hardship.

Plaintiffs also argue that the fee requirement violates title 5, section 350 of the California Administrative Code (hereafter title 5, section 350). That section provides: “A pupil enrolled in a school shall not be required to pay any fee, deposit, or other charge not specifically authorized by law.” * * *

* *

In conclusion, the imposition of fees as a precondition for participation in educational programs offered by public high schools on a non-credit basis violates the free school guarantee of the California Constitution and the pro- hibition against school fees contained in title 5, section 350 of the California Administrative Code.

The judgment is reversed.

* * *

Notes and Questions

A brief survey of states’ constitutional provisions and case law concerning the issue of school fees is discussed in Cardiff v. Bismarck Public School Dis- trict, 263 N.W.2d 105 (N.D. 1978). May a student’s transcript be withheld for failure to pay school fees? See Paulson v. Minidoka County School District No. 331, 463 P.2d 935 (Idaho 1970), where the court stated that “free com- mon schools” were not being provided when access to official reports of students’ records depended upon payment of a $25 unconstitutional school fee. May a transcript of grades be withheld for failure to pay a le- gitimate fee?

Incidental fees for attendance at athletic or literary events and the use of the library have generally been upheld even when there is a consti- tutional requirement for providing free public schools. What determines whether or not a school may charge an “incidental” fee but not other fees?

A United States Supreme Court decision upheld a North Dakota statute that allowed local school boards to assess fees for transporting pupils to school. Inasmuch as the policy caused education to be more ex- pensive for some citizens than for others, plaintiffs contended that the statute offended the Equal Protection Clause of the United States Constitu- tion. In rejecting that contention, the Court declined on two counts to sub- ject the statute to “strict scrutiny.” First, it reaffirmed its position that education is not a “fundamental” constitutional right. Second, it held that

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laws impacting disproportionately on the poor do not, on that account, in- voke such scrutiny. Moreover, the Court declared, a state’s choosing to offer a service does not impose upon the state a constitutional obligation to offer it free of charge. See Kadrmas v. Dickinson Public Schools, 487 U.S. 450 (1988).

A California statute allowing school districts to assess fees for chil- dren who ride school buses was held to be violative of the state constitu- tion’s equal protection clause. The California court held that such a law was counter to the guarantee of free schools, and it failed to meet the state’s strict-scrutiny test. See Salazer v. Honig, 246 Cal. Rptr. 837 (Cal. Ct. App. 1988).

Does your state constitution or statutory law address the issue of school fees? What is the practice or policy regarding fees in your school system?

VI. HEALTH SERVICES

Over the years, school systems have attempted to impose health services on students with which some parents disapproved. The most notable and heavily litigated issue has dealt with immunization. In recent years many parents have objected to the distribution of condoms, although the ratio- nale for the distribution was based on its being a health service for the pre- vention of disease.

A. Immunization

State statutes authorizing or requiring vaccination or immunization as a condition of school attendance have been upheld in every instance where they have been challenged. Such statutes often contain an exemption for those who are members of religious organizations that do not permit inoc- ulation or that rely on spiritual means or prayer for healing.

BERG v. GLEN COVE CITY SCHOOL DISTRICT

United States District Court, Eastern District of New York, 1994 853 F. Supp. 651

WEXLER, District Judge * * *

The facts as alleged in the complaint, and as adduced at the hearing, are summarized as follows: In or before April 1993, Kathryn and David Berg

Schools and the State 91

sought to enroll their five-year-old twin daughters, Emily and Sasha, in the Glen Cove City School District, and requested exemption from the immu- nization requirement of New York Public Health Law § 2164. This section requires that all children be immunized against certain communicable dis- eases before they enter school. * * *

By letters dated April 28, 1993 and July 22, 1993, defendant, through Assistant Superintendent Michael S. Perricone (“Perricone”), sought infor- mation from plaintiffs to determine whether the requirements for exemption were satisfied. In particular, Perricone asked plaintiffs to identify the religion to which they claimed to belong and the tenets of that religion that would be violated by permitting immunization.

Plaintiffs responded to Perricone’s request by summarizing their pur- ported religious beliefs in a letter dated July 29, 1993. As alleged in paragraph 17 of the Complaint, the July 29 letter described plaintiffs’ religious beliefs as fol lows:

While we feel we are members of the Jewish Faith and we believe in God, we adhere to certain personal and sacred religious beliefs. Our beliefs are partly based on Torah and what we believe that God commands of us. We believe that God has endowed us with the energy of life. We believe that this special energy, directed by God, has constructed our cells, our tissues, and our organs with infinite intelligence and these interconnected systems function in perfect harmony when we follow nature’s laws which are the Laws of God. We be- lieve a lifestyle that is in accordance with the Laws of God creates healthy bod- ies and healthy minds. God is pure and we must strive to live our lives as purely as possible. Eating unpure substances or injecting substances unnatu- rally into our bloodstreams is in our opinion a violation of these laws. * * *

Plaintiffs thereafter filed their complaint in this action on November 9, 1993, ultimately seeking: (1) a declaratory judgment, that they are entitled to the exemption from immunizations provided in § 2164(9); (2) a permanent injunction preventing defendant from violating plaintiffs’ constitutional rights; and (3) damages in the amount of $1 million for violation of their con- stitutional rights, together with costs and disbursements of this action, in- cluding reasonable attorney’s fees pursuant to 42 U.S.C. § 1988. * * *

Before a discussion of the merits, the Court notes that in Sherr v. NorthportEast Northport Union Free School Dist., 672 F. Supp. 81 (E.D.E.Y. 1987), this Court declared that the predecessor of § 2164(9) violated both the establishment and free exercise clauses of the First Amendment. The earlier version of § 2164(9) required that the parent or guardian seeking the excep- tion be a “bona fide member of a recognized religious organization” whose doctrines oppose such immunizations. In response to this Court’s Sherr deci- sion, the New York legislature amended § 2164(9) to require that the parent or guardian “hold genuine and sincere religious beliefs which are contrary to the practices herein required.” Because the statutory exception is for persons whose opposition to immunizations stems from religious beliefs, it does not

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extend to persons whose views are founded upon, for instance, “medical or purely moral considerations,” Sherr, 672 F. Supp. at 92, “scientific and secu- lar theories,” or “philosophical and personal” beliefs. Mason v. General Brown Cent. School Dist., 851 F.2d 47, 51-52 (2d Cir. 1988). Thus, this Court must first determine whether plaintiffs’ purported beliefs are “reli- gious.” Only if they are, then this Court must determine whether those be- liefs are genuinely and sincerely held. Moreover, the Court is mindful that attempts to ascertain the sincerity of claims of religious beliefs must be un- dertaken with extreme caution. * * *

As for plaintiffs’ beliefs, both Kathryn and David Berg testified that they consider themselves “Jewish,” but that they do not fit within any recognized classification of Judaism; rather, they adhere to their own concept of being Jewish. Although defendant offered testimony from an expert in Jewish reli- gion that there is nothing in the teachings of the Jewish religion that would proscribe immunization for children, plaintiffs maintained, nevertheless, that the basis for their opposition to immunization was their own interpretation of passages from certain Hebrew scripture, and claimed to adhere strongly to those passages, as they interpreted them, for at least the past six years.

Based on this testimony and plaintiffs statement of their beliefs in the complaint, it appears that plaintiffs’ will likely succeed on their claim that the beliefs they hold opposing immunization qualify as “religious.”

As for plaintiffs’ claim that their beliefs are genuinely and sincerely held, this Court’s examination of certain medical and dental records sub- stantiates plaintiffs’ claim that for at least six years they have practiced those beliefs they contend are opposed to immunization in contexts other than im- munization, for instance, in the receipt of prenatal, pediatric and dental care. Although it may seem odd that plaintiffs interpret certain tenets of the Jewish religion to prohibit immunization, while Jewish teaching, according to de- fendant’s expert, imposes no such prohibition, and although these facts bear on determining whether plaintiffs’ beliefs are genuine and sincere, plaintiffs have thus far sufficiently shown that they hold their beliefs genuinely and sincerely.

Based on the record presented thus far, this Court finds that plaintiffs have established a likelihood of success on the merits of their claim that their opposition to the required immunizations is based on beliefs which qualify as “religious,” and that they hold these beliefs both “genuinely” and “sin- cerely.” * * *

Notes

For a contrary view, see Brown v. Stone, 378 So.2d 218 (Miss. 1980), cert. de- nied, 449 U.S. 887 (1980), where a religious exemption was not allowed. This court declared that the exemption based on religious beliefs would

Schools and the State 93

discriminate against the great majority of children whose parents did not have those religious convictions. Exemption may not be provided for stu- dents receiving a note of medical exemption from a chiropractor. See Heard v. Payne, 665 S.W.2d 865 (Ark. 1984).

A school rule requiring a tetanus shot as a condition of playing on a baseball team was upheld. A Pennsylvania court held that a school dis- trict’s compelling interest to immunize did not infringe on a boy’s reli- gious practice. See Calendra v. State College Area School District, 512 A.2d 809 (1986).

B. Distribution of Condoms

Some school authorities, primarily in urban areas, have attempted to deal with problems associated with high levels of student pregnancy and a student-wide AIDS epidemic by making condoms available. Such school districts contend that condom distribution is not only a valuable compo- nent of the sex-education and/or health-education curriculum but also in- valuable in preventing the spread of sexually transmitted diseases such as AIDS. Parents who oppose such a scheme generally argue that such distri- bution is tantamount to condoning promiscuity and sexual permissive- ness, and encourages sexual relations at an earlier age and/or with more frequency. When litigated, condom distribution programs have been up- held by the courts.

In Curtis v. School Committee of Falmouth, 652 N.E.2d 580 (Mass. 1995), a condom-availability program for grades seven through twelve was up- held. Under this program junior high school students could request free condoms from the school nurse, who would counsel the students and pro- vide them with pamphlets on AIDS/HIV and other sexually transmitted diseases. At the high school, students could request free condoms from the school nurse or purchase them from the condom vending machines lo- cated in the girls’ and boys’ restrooms. Counseling was provided if re- quested. This program did not provide for an “opt-out” under which parenis had the option of excluding their student from the availability of condoms, nor a parental notification provision whereby parents would be notified of their children’s requests for condoms. The court ruled that this program did not violate parental liberties or privacy rights. Additionally, the court stated that although the program may offend the religious sensi- bilities of parents, mere exposure to offensive programs does not amount to a violation of free exercise. Parents have no right to tailor public school programs to meet their individual religious or moral preference.

A condom distribution program, including an “opt-out” provision, was challenged by parents who argued that their Fourteenth Amend- ment right to bring up their children without unnecessary governmental

94 CHAPTER TWO

interference was violated. The court in, Parents United for Better Schools, Inc. v. School District of Philadelphia, 148 F.3d 260 (3rd Cir. 1998), upheld the con- sensual program and argued that because the program did not demand student participation and gave parents the option to exclude their children from receiving condoms, it did not violate the parents’ rights. The condom distribution program was a result of the school board’s concern about an epidemic in adolescent pregnancy, sexually transmitted diseases, and HIV infection. It was a part of a larger program to educate students about health and hygiene. Given the program’s goals, the court agreed that the program was within the implied definition of health services.

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CHAPTER THREE

Students and the Law

Countless interactions between students and school officials occur in the public schools, and inevitably, some students or their parents become dis- pleased either with a school official’s actions or with school policy. The vast majority of such disputes are not litigable, however, unless school authori- ties have violated a student’s constitutional rights, not followed applicable federal or state statutes, or not had appropriate policies or procedures.

Prior to the 1970s, courts usually upheld school authorities who demonstrated no more than that their actions were reasonable. Public schools were perceived as enjoying parental prerogatives, and it was un- certain whether constitutional rights extended to students. However, in a 1969 landmark decision, the United States Supreme Court declared that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Subsequently, in 1975 the high court held that public school students possess liberty and property interests in their education, and therefore, that constitutional principles of due process apply to school officials’ treatment of students. Several important federal statutes also emerged in the early 1970s, further expanding the scope of student rights. As a result of these changes in students’ legal status, a pe- riod ensued during which students often were successful in challenging school policies and procedures and in which many school officials per- ceived an erosion of their authority.

In the mid-1980s, however, a shift became evident in the courts’ ten- dency to uphold students. In particular, several Supreme Court decisions since then clearly increased the authority of public school officials regard- ing students’ freedom of expression and several other areas of conflict.

In addition to discussing students’ rights to free expression, this chapter addresses issues associated with suspension, expulsion, and in- voluntary disciplinary transfer from school; corporal punishment; search of students and their lockers; student appearance; pregnancy, parenthood,

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and marriage; participation in extracurricular activities; and school pun- ishment for out-of-school offenses.

An examination of court decisions in these areas reveals that courts must often balance students’ constitutional rights against the duty of public school officials to maintain an appropriate environment for learning and safety. A deceptively simple administrative practice emerges that reduces legal confrontations and also facilitates school operations; namely, school officials should ensure the adoption of policies that are legally and educa- tionally sound, that are clearly written, that are adequately communicated to students and their parents, and that are enforced in a fair marmer.

I. FREEDOM OF EXPRESSION

A. The Tinker Doctrine

Students were not recognized as having the First Amendment right of freedom of expression in 1969 when the United States Supreme Court ad- dressed the question in Tinker v. Des Moines Independent Community School District. Although this seven-to-two decision did not address the question of “pure speech”the issue before the Court involved the wear- ing of armbands by studentsthe Court’s decision in Tinker provided the public school community with a clear message that a student has the right of political freedom of expression.

TINKER v. DES MOINES INDEPENDENT COMMUNITY SCHOOL DISTRICT

Supreme Court of the United States, 1969 393 U.S. 503

MR. JUSTICE FORTAS del ivered the opinion of the Court. Petitioner John F. Tinker, 15 years old, and petitioner Christopher Eck-

hardt, 16 years old, attended high schools in Des Moines, Iowa. Petitioner Mary Beth Tinker, John’s sister, was a 13-year-old student in junior high school.

In December 1965, a group of adults and students in Des Moines held a meeting at the Eckhardt home. The group determined to publicize their ob- jections to the hostilities in Vietnam and their support for a truce by wearing black armbands during the holiday season and by fasting on December 16 and New Year’s Eve. Petitioners and their parents had previously engaged in similar activities, and they decided to participate in the program.

The principals of the Des Moines schools became aware of the plan to wear armbands. On December 14, 1965, they met and adopted a policy that

Students and the Law 97

any student wearing an armband to school would be asked to remove it, and if he refused he would be suspended until he returned without the armband. Petitioners were aware of the regulation that the school authorities adopted.

On December 16, Mary Beth and Christopher wore black armbands to their schools. John Tinker wore his armband the next day. They were all sent home and suspended from school until they would come back without their armbands. They did not return to school until after the planned period for wearing armbands had expiredthat is, until after New Year’s Day.

This complaint was filed in the United States District Court by petition- ers, through their fathers, under § 1983 of Title 42 of the United States Code. It prayed for an injunction restraining the respondent school officials and the respondent members of the board of directors of the school district from dis- ciplining the petitioners, and it sought nominal damages. After an evidentiary hearing the District Court dismissed the complaint. It upheld the constitu- tionality of the school authorities’ action on the ground that it was reasonable in order to prevent disturbance of school discipline. * * * The court referred to but expressly declined to follow the Fifth Circuit’s holding in a similar case that the wearing of symbols like the armbands cannot be prohibited unless it “materially and substantially interfere[s] with the requirements of appropriate discipline in the operation of the school.” * * *

On appeal, the Court of Appeals for the Eighth Circuit considered the case en banc. The court was equally divided, and the District Court’s decision was accordingly affirmed, without opinion. * * * We granted certiorari. * * *

The District Court recognized that the wearing of an armband for the purpose of expressing certain views is the type of symbolic act that is within the Free Speech Clause of the First Amendment. * * *As we shall discuss, the wearing of armbands in the circumstances of this case was entirely divorced from actually or potentially disruptive conduct by those participating in it. It was closely akin to “pure speech” which, we have repeatedly held, is enti- tled to comprehensive protection under the First Amendment. * * *

First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years. * * *

* * * On the other hand, the Court has repeatedly emphasized the need for affirming the comprehensive authority of the States and of school offi- cials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools. * * * Our problem lies in the area where stu- dents in the exercise of First Amendment rights collide with the rules of the school authorities.

The problem posed by the present case does not relate to regulation of the length of skirts or the type of clothing, to hair style, or deportment. * * * It does not concern aggressive, disruptive action or even group demonstrations.

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Our problem involves direct, primary First Amendment rights akin to “pure speech.”

The school officials banned and sought to punish petitioners for a silent, passive expression of opinion, unaccompanied by any disorder or dis- turbance on the part of petitioners. There is no evidence whatever of peti- tioners’ interference, actual or nascent, with the schools’ work or of collision with the rights of other students to be secure and to be let alone. Accord- ingly, this case does not concern speech or action that intrudes upon the work of the schools or the rights of other students.

Only a few of the 18,000 students in the school system wore the black armbands. Only five students were suspended for wearing them. There is no indication that the work of the schools or any class was disrupted. Outside the classrooms, a few students made hostile remarks to the children wearing armbands, but there were no threats or acts of violence on school premises.

The District Court concluded that the action of the school authorities was reasonable because it was based upon their fear of a disturbance from the wearing of the armbands. But, in our system, undifferentiated fear or ap- prehension of disturbance is not enough to overcome the right of freedom of expression. Any departure from absolute regimentation may cause trouble. Any variation from the majority’s opinion may inspire fear. Any word spo- ken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk, * * * ; and our history says that it is this sort of hazardous freedomthis kind of opennessthat is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.

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

In the present case, the District Court made no such finding, and our independent examination of the record fails to yield evidence that the school authorities had reason to anticipate that the wearing of the armbands would substantially interfere with the work of the school or impinge upon the rights of other students. Even an official memorandum prepared after the suspen- sion that listed the reasons for the ban on wearing the armbands made no reference to the anticipation of such disruption.

On the contrary, the action of the school authorities appears to have been based upon an urgent wish to avoid the controversy which might result from the expression, even by the silent symbol of armbands, of opposition to

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this Nation’s part in the conflagration in Vietnam. It is revealing, in this re- spect, that the meeting at which the school principals decided to issue the contested regulation was called in response to a student’s statement to the journalism teacher in one of the schools that he wanted to write an article on Vietnam and have it published in the school paper. (The student was dis- suaded.)

It is also relevant that the school authorities did not purport to prohibit the wearing of all symbols of political or controversial significance. The record shows that students in some of the schools wore buttons relating to national political campaigns and some even wore the Iron Cross, tradition- ally a symbol of Nazism. The order prohibiting the wearing of armbands did not extend to these. Instead, a particular symbolblack armbands worn to exhibit opposition to this Nation’s involvement in Vietnamwas singled out for prohibition. Clearly, the prohibition of expression of one particular opin- ion, at least without evidence that it is necessary to avoid material and sub- stantial interference with schoolwork or discipline, is not constitutionally permissible.

In our system, state-operated schools may not be enclaves of totalitari- anism. School officials do not possess absolute authority over their students. Students in school as well as out of school are “persons” under our Constitu- tion. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State. In our sys- tem, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved. In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views. * * *

* * * * * * The principal use to which the schools are dedicated is to ac-

commodate students during prescribed hours for the purpose of certain types of activities. Among those activities is personal intercommunication among the students. This is not only an inevitable part of the process of at- tending school; it is also an important part of the educational process. A stu- dent’s rights, therefore, do not embrace merely the classroom hours. When he is in the cafeteria, or on the playing field, or on the campus during the authorized hours, he may express his opinions, even on controversial sub- jects like the conflict in Vietnam, if he does so without “materially and sub- stantially interfer[ing] with the requirements of appropriate discipline in the operation of the school” and without colliding with the rights of others. * * * But conduct by the student, in class or out of it, which for any reason whether it stems from time, place, or type of behaviormaterially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech. * * *

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Under our Constitution, free speech is not a right that is given only to be so circumscribed that it exists in principle but not in fact. Freedom of ex- pression would not truly exist if the right could be exercised only in an area that a benevolent government has provided as a safe haven for crackpots. The Constitution says that Congress (and the States) may not abridge the right to free speech. This provision means what it says. We properly read it to per- mit reasonable regulation of speech-connected activities in carefully re- stricted circumstances. But we do not confine the permissible exercise of First Amendment rights to a telephone booth or the four corners of a pam- phlet, or to supervised and ordained discussion in a school classroom.

If a regulation were adopted by school officials forbidding discussion of the Vietnam conflict, or the expression by any student of opposition to it anywhere on school property except as part of a prescribed classroom exer- cise, it would be obvious that the regulation would violate the constitutional rights of students, at least if it could not be justified by a showing that the stu- dents’ activities would materially and substantially disrupt the work and dis- cipline of the school. * * * In the circumstances of the present case, the prohibition of the silent passive “witness of the armbands,” as one of the children called it, is no less offensive to the Constitution’s guarantees.

As we have discussed, the record does not demonstrate any facts which might reasonably have led school authorities to forecast substantial disrup- tion of or material interference with school activities, and no disturbances or disorders on the school premises in fact occurred. These petitioners merely went about their ordained rounds in school. Their deviation consisted only in wearing on their sleeve a band of black cloth, not more than two inches wide. They wore it to exhibit their disapproval of the Vietnam hostilities and their advocacy of a truce, to make their views known, and, by their example, to influence others to adopt them. They neither interrupted school activities nor sought to intrude in the school affairs or the lives of others. They caused discussion outside of the classrooms, but no interference with work and no disorder. In the circumstances, our Constitution does not permit officials of the State to deny their form of expression.

We express no opinion as to the form of relief which should be granted, this being a matter for the lower courts to determine. We reverse and remand for further proceedings consistent with this opinion.

Reversed and remanded.

* * * MR. JUSTICE BLACK, dissenting. The Court’s holding in this case ushers in what I deem to be an entirely

new era in which the power to control pupils by the elected “officials of state-supported public schools . . .” in the United States is in ultimate effect transferred to the Supreme Court. * * *

* * *

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Assuming that the Court is correct in holding that the conduct of wear- ing armbands for the purpose of conveying political ideas is protected by the First Amendment * * * , the crucial remaining questions are whether students and teachers may use the schools at their whim as a platform for the exercise of free speech”symbolic” or “pure”and whether the courts will allocate to themselves the function of deciding how the pupils’ school day will be spent. While I have always believed that under the First and Fourteenth Amendments neither the State nor the Federal Government has any authority to regulate or censor the content of speech, I have never believed that any person has a right to give speeches or engage in demonstrations where he pleases and when he pleases. * * *

While the record does not show that any of these armband students shouted, used profane language, or were violent in any manner, detailed tes- timony by some of them shows their armbands caused comments, warnings by other students, the poking of fun at them, and a warning by an older foot- ball player that other, nonprotesting students had better let them alone. There is also evidence that a teacher of mathematics had his lesson period practi- cally “wrecked” chiefly by disputes with Mary Beth Tinker, who wore her armband for her “demonstration.” Even a casual reading of the record shows that this armband did divert students’ minds from their regular lessons, and that talk, comments, etc., made John Tinker “self-conscious” in attending school with his armband. While the absence of obscene remarks or boister- ous and loud disorder perhaps justified the Court’s statement that the few armband students did not actually “disrupt” the classwork, I think the record overwhelmingly shows that the armbands did exactly what the elected school officials and principals foresaw they would, that is, took the students’ minds off their classwork and diverted them to thoughts about the highly emotional subject of the Vietnam war. And I repeat that if the time has come when pupils of state-supported schools, kindergartens, grammar schools, or high schools, can defy and flout orders of school officials to keep their minds on their own schoolwork, it is the beginning of a new revolutionary era of permissiveness in this country fostered by the judiciary. The next logical steps, it appears to me, would be to hold unconstitutional laws that bar pupils under 21 or 18 from voting or from being elected members of the boards of education.

* * * * * * But even if the record were silent as to protests against the Viet-

nam war distracting students from their assigned class work, members of this Court, like all other citizens, know, without being told, that the disputes over the wisdom of the Vietnam war have disrupted and divided this coun- try as few other issues ever have. Of course students, like other people, cannot concentrate on lesser issues when black armbands are being osten- tatiously displayed in their presence to call attention to the wounded and dead of the war, some of the wounded and the dead being their friends and

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neighbors. It was, of course, to distract the attention of other students that some students insisted up to the very point of their own suspension from school that they were determined to sit in school with their symbolic arm- bands.

Change has been said to be truly the law of life but sometimes the old and the tried and true are worth holding. The schools of this Nation have undoubtedly contributed to giving us tranquility and to making us a more law-abiding people. Uncontrolled and uncontrollable liberty is an enemy to domestic peace. We cannot close our eyes to the fact that some of the country’s greatest problems are crimes committed by the youth, too many of school age. School discipline, like parental discipline, is an integral and important part of training our children to be good citizensto be better cit- izens. Here a very small number of students have crisply and summarily re- fused to obey a school order designed to give pupils who want to learn the opportunity to do so. One does not need to be a prophet or the son of a prophet to know that after the Court’s holding today some students in Iowa schools and indeed in all schools will be ready, able, and willing to defy their teachers on practically all orders. This is the more unfortunate for the schools since groups of students all over the land are already running loose, conducting break-ins, sit-ins, lie-ins, and smash-ins. Many of these student groups, as is all too familiar to all who read the newspapers and watch the television news programs, have already engaged in rioting, prop- erty seizures, and destruction. They have picketed schools to force students not to cross their picket lines and have too often violently attacked earnest but frightened students who wanted an education that the pickets did not want them to get. Students engaged in such activities are apparently confi- dent that they know far more about how to operate public school systems than do their parents, teachers, and elected school officials. It is no answer to say that the particular students here have not yet reached such high points in their demands to attend classes in order to exercise their political pressures. Turned loose with lawsuits for damages and injunctions against their teachers as they are here, it is nothing but wishful thinking to imagine that young, immature students will not soon believe it is their right to con- trol the schools rather than the right of the States that collect the taxes to hire the teachers for the benefit of the pupils. This case, therefore, wholly without constitutional reasons in my judgment, subjects all the public schools in the country to the whims and caprices of their loudest-mouthed, but maybe not their brightest, students. I, for one, am not fully persuaded that school pupils are wise enough, even with this Court’s expert help from Washington, to run the 23,390 public school systems in our 50 States. I wish, therefore, wholly to disclaim any purpose on my part to hold that the Federal Constitution compels the teachers, parents, and elected school of- ficials to surrender control of the American public school system to public school students. I dissent.

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Notes

It should be kept in mind that the freedom of expression protected in Tin- ker pertains to the expression of social, political, and economic issues by high school and junior high school students. Not protected is such student conduct as insolence, disrespect, screaming, or cursing at staff members or fellow students.

Tinker was filed as a legal action under § 1983 of Title 42 of the United States Code. This section of the Civil Rights Act is often employed as a legal basis for bringing a suit involving students or teachers. See Chapter 8 for a brief discussion of this act.

According to Tinker, “undifferentiated fear or apprehension of dis- turbance is not enough to overcome the right of freedom of expression,” and school authorities must accept “mere disturbance” when students exercise their First Amendment rights. Only when students engage in con- duct that would “materially and substantially interfere with the require- ments of appropriate discipline in the operation of the school” (emphasis added) may authorities prohibit the conduct. Unfortunately, the Court did not provide a test that school authorities could employ to determine whether actual disruption or merely a forecast of “substantial disruption” was necessary before they could prohibit conduct where freedom of ex- pression was at issue. Further complicating the picture for school admin- istrators was the failure by the Court to provide sufficient guidance concerning the meaning of a forecast of “substantial disruption.”

There is little doubt that school officials may enforce reasonable rules to ensure the orderly operation of the school. However, Tinker proclaimed that when freedom of expression is involved, school officials may not re- strict this freedom because the political viewpoint expressed displeases an official or has the potential to bring about a degree of disruption. Part of the desired political socialization of students is that they learn that a gov- ernment officiala school authority in this instancemay not restrict cer- tain types of freedom of expression merely because it may be annoying or somewhat disruptive. Although some school officials may feel uncomfort- able with such a doctrine, its rationale is based on the notion that if stu- dents are to become full participants in a free and democratic society, they must thoroughly understand that they are free to express themselves on any social, political, or economic issue without undue restraint or reprisal from government. The Court’s contention was that the school is the proper place for a student to come to this understanding through the observance of freedom of expression in the school environment rather than through lectures or through policies that imply that freedom of expression is con- ferred at a specific age or upon graduation from high school.

Do contemporary notions about being “politically correct” fly in the face of the above? Why, for instance, should students not be allowed to

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make negative comments related to another student’s religion, race, ethnic background, gender, or group association merely because it may be offen- sive or disagreeable? Is it because a school has a duty to teach good man- ners and civility? Or is it because, in addition to impeding the orderly operation of the school, students are required by law to attend and that it would appear to be an endorsement by the school if such views were al- lowed to be uttered?

A middle school student’s suspension for drawing a picture of a con- federate flag on a piece of paper during a math class was upheld in West v. Derby Unified School District, 206 F. 3d 1358 110th cir. 2000), cert. denied 531 U.S. 104 (2000). In this instance, the school district had a “Racial Harass- ment or Intimidation” policy that prohibited “any written material, either printed or in their own handwriting, that is racially divisive or creates ill will or hatred” and specifically included confederate flags or articles. In its decision, the court held that given the past history of racial incidents be- tween white and black students, the district had a reasonable basis to as- sume that this student’s conduct would lead to a substantial disruption of school activities.

A student was suspended for having created an Internet home page on his personal computer containing vulgar language and that was critical of his school. In upholding the student, the court declared that his First Amendment Rights had been violated and that allowing provocative and challenging speech did not interfere with school discipline. See Beussink v. Woodland R-IV School District, 30 F. Supp.2d 1175 (Mo. 1998).

A school system’s policy requiring students to engage in sixty hours of community service as a condition of graduation was challenged on the grounds that it compelled expression that was protected by the First Amendment. In rejecting this claim, a federal appellate court contended that participation in the program did not affirm a belief in the philosophy of altruism on the part of participating students. See Steirer v. Bethlehem Area School District, 987 F.2d 989 (3rd Cir. 1993), cert. denied, 510 U.S. 824 (1993). Other federal courts of appeals have upheld similar community service programs. See Immediato v. Rye Neck School District, 73 F.3d 454 (2nd Cir. 1996), cert. denied, 519 U.S. 813 (1996), and Herndon v. Chapel Hill- Carrboro City Board of Education, 89 F.3d 174 (4th Cir. 1996), cert. denied, 519 U.S. 1111 (1997).

Students attending private schools do not have the First Amend- ment protections provided by the Tinker decision, nor do such students necessarily have all of the civil rights guaranteed by other amendments through the Fourteenth Amendment. Such rights are available to public school students because the public school operates under the “color of the State.” Because most private school activities are not considered “state ac- tion,” a substantial linkage between a private school and the state or fed- eral government would have to be present for a private school to be

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considered acting under the “color of the state.” As a result, private school students do not have many of the rights afforded public school students discussed in the succeeding sections of this chapter. Disagree- ments over “student rights” in a private school setting are generally re- solved by applying contract law to the agreement governing the student’s attendance.

B. limiting the Tinker Doctrine

Active and lively litigation after Tinker addressed such issues as the wear- ing of buttons or other symbols, the use of obscenity and “fighting words,” censorship of student publications, and distribution of “underground” newspapers. Frequently, this litigation did little to dispel fears that the Tin- ker court had bestowed on students unbridled license to behave as they pleased. Several federal courts, relying on the Tinker decision, upheld forms of student expression that many parents and school authorities con- sidered inappropriate. However, Supreme Court decisions, such as Bethel School District No. 403 v. Fraser and Hazelwood School District v. Kuhlmeier, in the late 1980s, have tended to limit what many observers heretofore thought the Tinker decision allowed.

1. Nonpolitical Speech

BETHEL SCHOOL DISTRICT NO. 403 V. FRASER

Supreme Court of the United States, 1986 478 U.S. 675

CHIEF JUSTICE BURGER delivered the opinion of the Court. We granted certiorari to decide whether the First Amendment prevents

a school district from disciplining a high school student for giving a lewd speech at a school assembly.

On April 26, 1983, respondent Matthew N. Fraser, a student at Bethel High School in Bethel, Washington, delivered a speech nominating a fellow student for student elective office. Approximately 600 high school students, many of whom were 14-year-olds, attended the assembly. Students were re- quired to attend the assembly or to report to the study hall. The assembly was part of a school-sponsored educational program in self-government. Stu- dents who elected not to attend the assembly were required to report to study hall. During the entire speech, Fraser referred to his candidate in terms of an elaborate, graphic, and explicit sexual metaphor.

Two of Fraser’s teachers, with whom he discussed the contents of his speech in advance, informed him that the speech was “inappropriate and

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that he probably should not deliver it,” * * * and that his delivery of the speech might have “severe consequences.” * * *

During Fraser’s delivery of the speech, a school counselor observed the reaction of students to the speech. Some students hooted and yelled; some by gestures graphically simulated the sexual activities pointedly alluded to in the respondent’s speech. Other students appeared to be bewildered and em- barrassed by the speech. One teacher reported that on the day following the speech, she found it necessary to forgo a portion of the scheduled class les- son in order to discuss the speech with the class.

A Bethel High School disciplinary rule prohibiting the use of obscene language in the school provides:

Conduct which materially and substantially interferes with the educational process is prohibited, including the use of obscene, profane language or ges- tures.

The morning after the assembly, the assistant principal called Fraser into her office and notified him that the school considered his speech to have been a violation of this rule. Fraser was presented with copies of five letters submit- ted by teachers, describing his conduct at the assembly; he was given a chance to explain his conduct, and he admitted to having given the speech described and that he deliberately used sexual innuendo in the speech. Fraser was then informed that he would be suspended for three days, and that his name would be removed, from the list of candidates for graduation speaker at the school’s commencement exercises.

Fraser sought review of this disciplinary action through the School Dis- trict’s grievance procedures. The hearing officer determined that the speech given by the respondent was “indecent, lewd, and offensive to the modesty and decency of many of the students and faculty in attendance at the assem- bly.” The examiner determined that the speech fell within the ordinary meaning of “obscene,” as used in the disruptive conduct rule, and affirmed the discipline in its entirety. Fraser served two days of his suspension, and was allowed to return to school on the third day.

Respondent, by his father as guardian ad litem, then brought this ac- tion in the United States District Court for the Western District of Wash- ington. Respondent alleged a violation of his First Amendment right to freedom of speech and sought both injunctive relief and monetary dam- ages under 42 U.S.C. § 1983. The District Court held that the school’s sanctions violated respondent’s right to freedom of speech under the First Amendment to the United States Constitution, that the school’s disruptive conduct rule is unconstitutionally vague and overbroad, and that the re- moval of respondent’s name from the graduation speaker’s list violated the Due Process Clause of the Fourteenth Amendment because the discipli- nary rule makes no mention of such removal as a possible sanction. The District Court awarded respondent $278 in damages, $12,750 in litigation

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costs and attorney’s fees, and enjoined the School District from preventing respondent from speaking at the commencement ceremonies. Respondent, who had been elected graduation speaker by a write-in vote of his class- mates, delivered a speech at the commencement ceremonies on June 8, 1983.

The Court of Appeals for the Ninth Circuit affirmed the judgment of the District,Court, * * * holding that respondent’s speech was indistinguish- able from the protest armband in Tinker v. Des Moines Independent Com- munity School Dist. The court explicitly rejected tke School District’s argument that the speech, unlike the passive conduct of wearing a black armband, had a disruptive effect on the educational process. The Court of Appeals also rejected the School District’s argument that it had an interest in protecting an essentially captive audience of minors from lewd and in- decent language in a setting sponsored by the school, reasoning that the school bOard’s “unbridled discretion” to determine what discourse is “de- cent” would “increase the risk of cementing white, middle-class standards for determining what is acceptable and proper speech and behavior in our public schools.” * * * Finally, the Court of Appeals rejected the School Dis- trict’s argument that, incident to its responsibility for the school curriculum, it had the power to control the language used to express ideas during a school-sponsored activity. We granted certiorari * * * . We reverse.

This Court acknowledged in Tinker v. Des Moines Independent Com- munity School Dist. * * * that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” * * *

The Court of Appeals read that case as precluding any discipline of Fraser for indecent speech and lewd conduct in the school assembly. That court appears to have proceeded on the theory that the use of lewd and ob- scene speech in order to make what the speaker considered to be a point in a nominating speech for a fellow student was essentially the same as the wearing of an armband in Tinker as a form of protest or the expression of a political position.

The marked distinction between the political “message” of the arm- bands in Tinker and the sexual content of respondent’s speech in this case seems to have been given little weight by the Court of Appeals. In upholding the students’ right to engage in a nondisruptive, passive expression of a po- litical viewpoint in Tinker, this Court was careful to note that the case did “not concern speech or action that intrudes upon the work of the schools or the rights of other students.” * * *

It is against this background that we turn to consider the level of First Amendment protection accorded to Fraser’s utterances and actions before an official high school assembly attended by 600 students.

The role and purpose of the American public school system was well described by two historians, saying “public education must prepare pupils for

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citizenship in the Republic.. . . It must inculcate the habits and manners of ci- vility as values in themselves conducive to happiness and as indispensable to the practice of self-government in the community and the nation.” * * *

These fundamental values of “habits and manners of civility” essential to a democratic society must, of course, include tolerance of divergent polit- ical and religious views, even when the views expressed may be unpopular. But these “fundamental values” must also take into account consideration of the sensibilities of others, and, in the case of a school, the sensibilities of fel- low students. The undoubted freedom to advocate unpopular and contro- versial views in schools and classrooms must be balanced against the society’s countervailing interest in teaching students the boundaries of so- cially appropriate behavior. Even the most heated political discourse in a democratic society requires consideration for the personal sensibilities of the other participants and audiences.

* * * Surely it is a highly appropriate function of public school education to

prohibit the use of vulgar and offensive terms in public discourse. Indeed, the “fundamental values necessary to the maintenance of a democratic po- litical system” disfavor the use of terms of debate highly offensive or highly threatening to others. Nothing in the Constitution prohibits the states from in- sisting that certain modes of expression are inappropriate and subject to sanctions. The inculcation of these values is truly the “work of the schools.” * * * The determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the school board.

The process of educating our youth for citizenship in public schools is not confined to books, the curriculum, and the civics class; schools must teach by example the shared values of a civilized social order. Consciously or otherwise, teachersand indeed the older studentsdemonstrate the ap- propriate form of civil discourse and political expression by their conduct and deportment in and out of class. Inescapably, like parents, they are role models. The schools, as instruments of the state, may determine that the es- sential lessons of civil, mature conduct cannot be conveyed in a school that tolerates lewd, indecent, or offensive speech and conduct such as that in- dulged in by this confused boy.

The pervasive sexual innuendo in Fraser’s speech was plainly offensive to both teachers and studentsindeed to any mature person. By glorifying male sexuality, and in its verbal content, the speech was acutely insulting to teenage girl students. * * * The speech could well be seriously damaging to its less mature audience, many of whom were only 14 years old and on the threshold of awareness of human sexuality. Some students were reported as bewildered by the speech and the reaction of mimicry it provoked.

* * *

We hold that petitioner School District acted entirely within its permis- sible authority in imposing sanctions upon Fraser in response to his offen-

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sively lewd and indecent speech. Unlike the sanctions imposed on the stu- dents wearing armbands in Tinker, the penalties imposed in this case were unrelated to any political viewpoint. The First Amendment does not prevent the school officials from determining that to permit a vulgar and lewd speech such as respondent’s would undermine the school’s basic educational mis- sion. A high school assembly or classroom is no place for a sexually explicit monologue directed toward an unsuspecting audience of teenage students. Accordingly, it was perfectly appropriate for the school to disassociate itself to make the point to the pupils that vulgar speech and lewd conduct are wholly inconsistent with the “fundamental values” of public school education. * * *

* * * Respondent contends that the circumstances of his suspension violated

due process because he had no way of knowing that the delivery of the speech in question would subject him to disciplinary sanctions. * * * Two days’ suspension from school does not rise to the level of a penal sanction calling for the full panoply of procedural due process protections applicable to a criminal prosecution. * * * The school disciplinary rule proscribing “ob- scene” language and the prespeech admonitions of teachers gave adequate warning to Fraser that his lewd speech could subject him to sanctions.

The judgment of the Court of Appeals for the Ninth Circuit is

Reversed.

JUSTICE BRENNAN, concurring in the judgment. Respondent gave the following speech at a high school assembly in

support of a candidate for student government office:

I know a man who is firmhe’s firm in his pants, he’s firm in his shirt, his char- acter is firmbut most . . . of all, his belief in you, the students of Bethel, is firm.

Jeff Kuhlman is a man who takes his point and pounds it in. If necessary, he’ll take an issue and nail it to the wall. He doesn’t attack things in spurtshe drives hard, pushing and pushing until finallyhe succeeds.

Jeff is a man who will go to the very endeven the climax, for each and every one of you.

So vote for Jeff for A. S. B. vice-presidenthe’ll never come between you and the best our high school can be.

The Court, referring to these remarks as “obscene,” “vulgar,” “lewd,” and “offensively lewd,” concludes that school officials properly punished re- spondent for uttering the speech. Having read the full text of respondent’s re- marks, I find it difficult to believe that it is the same speech the Court describes. To my mind, the most that can be said about respondent’s speechand all that need be saidis that in light of the discretion school of- ficials have to teach high school students how to conduct civil and effective public discourse, and to prevent disruption of school educational activities,

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it was not unconstitutional for school officials to conclude, under the cir- cumstances of this case, that respondent’s remarks exceeded permissible limits. Thus, while I concur in the Court’s judgment, I write separately to ex- press my understanding of the breadth of the Court’s holding.

Notes

Chief Justice Warren E. Burger, who wrote the seven-to-two majority opin- ion in Fraser, was nominated by President Nixon in 1969. Prior to his nom- ination, he was a judge on the U.S. Court of Appeals for the District of Columbia Circuit since 1956. Chief Justice Burger retired from the Court in 1986.

In Fraser the Court made it clear that Tinker was not to be read as recognizing that student rights are coextensive with those of adults. It is important to note that Mr. Fraser’s speech if made by an adult in public almost certainly would have enjoyed constitutional protection. Fraser, however, disclosed the Court’s conviction that public schools have an im- portant role in imparting respect for civility of public discourse. The hold- ing also revealed the majority’s view that judging the appropriateness of student speech ought to be left to school officials rather than to federal judges.

Several other courts have cited Fraser as they attempted to determine the extent to which students could express themselves. A court upheld the suspension, for the use of an obscenity by a white female student, for re- torting that she was not a “white ass fucking bitch” to a black female stu- dent who had called her that. The exchange of words occurredas a result of the black female cutting in line at the school cafeteria. The court opined that using these words was clearly disruptive in addition to their being “fight- ing words.” Both students received the same five-day suspension. The court found no equal protection violation, although the instigating student had an extensive disciplinary history while the other student had no prior record of disciplinary problems. See Heller v. Hodgin, 928 E Supp. 789 (Ind. 1996). Again citing Fraser, a student candidate for student council presi- dent was disqualified for that position for making “discourteous” and “rude” remarks about an assistant principal during a speech at a school- sponsored assembly. See Poling v. Murphy, 872 F.2d 757 (6th Cir. 1989).

2. School-Sponsored Expressive Activities Another widely litigated freedom-of-expression issue dealt with

school authorities’ control over school-sponsored expressive activities such as student publications. Although several federal appellate courts had addressed the issue prior to 1988, the United States Supreme Court had not. The result was a complex, confusing body of case law.

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In many jurisdictions, school newspapers have been considered to be “public forums,” immune from attempts to regulate the viewpoints ex- pressed therein. Student writing that was sexually suggestive, that advo- cated drug use, or that was potentially libelous seemingly enjoyed constitutional protection. Thus many school authorities saw their only op- tions as either allowing the publication of such material or ceasing alto- gether to publish student newspapers. Against this background the United States Supreme Court’s five-to-three decision in Hazelwood School District v. Kuhlmeier, which addressed a school principal’s censorship of student news articles, has enormous significance.

HAZELWOOD SCHOOL DISTRICT v. KUHLMEIER

Supreme Court of the United States, 1988 484 U.S 260

JUSTICE WHITE delivered the opinion of the Court. This case concerns the extent to which educators may exercise editor-

ial control over the contents of a high school newspaper produced as part of the school’s journalism curriculum.

* * *

Spectrum was written and edited by the Journalism ll class at Hazel- wood East. The newspaper was published every three weeks or so during the 1982-1983 school year. More than 4,500 copies of the newspaper were dis- tributed during that year to students, school personnel, and members of the community.

The Board of Education allocated funds from its annual budget for the printing of Spectrum. These funds were supplemented by proceeds from sales of the newspaper. The printing expenses during the 1982-1983 school year totaled $4,668.50; revenue from sales was $1,166.84. The other costs associated with the newspapersuch as supplies, textbooks, and a portion of the journalism teacher’s salarywere borne entirely by the Board.

* * *

We deal first with the question whether Spectrum may appropriately be

characterized as a forum for public expression. The public schools do not possess all of the attributes of streets, parks, and other traditional public fo- rums that “time out of mind, have been used for purposes of assembly, com- municating thoughts between citizens, and discussing public questions.” * * * Hence, school facilities may be deemed to be public forums only if school authorities have “by policy or by practice” opened those facilities “for indiscriminate use by the general public” * * * or by some segment of the

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public, such as student organizations. * * * If the facilities have instead been reserved for other intended purposes, “communicative or otherwise,” then no public forum has been created, and school officials may impose reason- able restrictions on the speech of students, teachers, and other members of the school community.* * * “The government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional forum for public discourse.”

The policy of school officials toward Spectrum was reflected in Hazel- wood School Board Policy 348.51 and the Hazelwood East Curriculum Guide. Board Policy 348.51 provided that Islchool sponsored publications are developed within the adopted curriculum and its educational implications in regular classroom activities.” * * * The Hazelwood East Curriculum Guide described the Journalism 11 course as a “laboratory situation in which the students publish the school newspaper applying skills they have learned in Journalism I.” * * * The lessons that were to be learned from the Journalism 11 course, according to the Curriculum Guide, included development of journal- istic skills under deadline pressure, “the legal, moral, and ethical restrictions imposed upon journalists within the school community,” and “responsibility and acceptance of criticism for articles of opinion.” * * * journalism II was taught by a faculty member during regular class hours. Students received grades and academic credit for their performance in the course.

School officials did not deviate in practice from their policy that pro- duction of Spectrum was to be part of the educational curriculum and a “regular classroom activit[y].” The District Court found that Robert Stergos, the journalism teacher during most of the 1982-1983 school year, “both had the authority to exercise and in fact exercised a great deal of control over Spectrum.” * * * For example, Stergos selected the editors of the news- paper, scheduled publication dates, decided the number of pages for each issue, assigned story ideas to class members, advised students on the devel- opment of their stories, reviewed the use of quotations, edited stories, se- lected and edited the letters to the editor, and dealt with the printing company. Many of these decisions were made without consultation with the Journalism II students.

* * * * * * Board Policy 348.51, which stated in part that “[s]chool spon-

sored student publications will not restrict free expression or diverse view- points within the rules of responsible journalism,” also stated that such publications were “developed within the adopted curriculum and its educa- tional implications.” One might reasonably infer from the full text of Policy 348.51 that school officials retained ultimate control over what constituted “responsible journalism” in a school-sponsored newspaper. Although the Statement of Policy published in the September 14, 1982, issue of Spectrum declared that “Spectrum, as a student-press publication, accepts all rights im- plied by the First Amendment,” this statement, understood in the context of

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the paper’s role in the school’s curriculum, suggests at most that the admin- istration will not interfere with the students’ exercise of those First Amend-

ment rights that attend the publication of a school-sponsored newspaper. It does not reflect an intent to expand those rights by converting a curricular newspaper into a public forum. Finally, that students were permitted to exer- cise some authority over the contents of Spectrum was fully consistent with the Curriculum Guide objective of teaching the Journalism II students “lead- ership responsibilities as issue and page editors.” A decision to teach leader-

ship skills in the context of a classroom activity hardly implies a decision to relinquish school control over that activity. * * * School officials did not evince either “by policy or by practice” * * * any intent to open the pages of Spectrum to “indiscriminate use” by its student reporters and editors, or by the student body generally. Instead, they “reservefd] the forum for its in- tended purposler as a supervised learning experience for journalism stu- dents. Accordingly, school officials were entitled to regulate the contents of Spectrum in any reasonable manner. It is this standard, rather than our deci-

sion in Tinker, that governs this case. The question whether the First Amendment requires a school to toler-

ate particular student speechthe question that we addressed in Tinkeris different from the question whether the First Amendment requires a school affirmatively to promote particular student speech. The former question addresses educators’ ability to silence a student’s personal expression that

happens to occur on the school premises. The latter question concerns edu-

cators’ authority over school-sponsored publications, theatrical productions, and other expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school. These

activities may fairly be characterized as part of the school curriculum, whether or not they occur in a traditional classroom setting, so long as they

are supervised by faculty members and designed to impart particular knowl- edge or skills to student participants and audiences.

Educators are entitled to exercise greater control over this second form of student expression to assure that participants learn whatever lessons the activity is designed to teach, that readers or listeners are not exposed to material that may be inappropriate for their level of maturity, and that the views of the individual speaker are not erroneously attributed to the school.

Hence, a school may in its capacity as publisher of a school newspaper or producer of a school play “disassociate itself” * * * not only from speech that

would “substantially interfere with [its] work . . . or impinge upon the rights of other students” * * * but also from speech that is, for example, ungram- matical, poorly written, inadequately researched, biased or prejudiced, vul-

gar or profane, or unsuitable for immature audiences. A school must be able

to set high standards for the student speech that is disseminated under its auspicesstandards that may be higher than those demanded by some newspaper publishers or theatrical producers in the “real” worldand may

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refuse to disseminate student speech that does not meet those standards. In addition, a school must be able to take into account the emotional maturity of the intended audience in determining whether to disseminate student speech on potentially sensitive topics, which might range from the existence of Santa Claus in an elementary school setting to the particulars of teenage sexual activity in a high school setting. A school must also retain the author- ity to refuse to sponsor student speech that might reasonably be perceived to advocate drug or alcohol use, irresponsible sex, or conduct otherwise in- consistent with “the shared values of a civilized social order” * * * or to as- sociate the school with any position other than neutrality on matters of political controversy. Otherwise, the schools would be unduly constrained from fulfilling their role as “a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in help- ing him to adjust normally to his environment.” * * *

Accordingly, we conclude that the standard articulated in Tinker for determining when a school may punish student expression need not also be the standard for determining when a school may refuse to lend its name and resources to the dissemination of student expression. Instead, we hold that educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate peda- gogical concerns.

This standard is consistent with our oft-expressed view that the educa- tion of the Nation’s youth is primarily the responsibility of parents, teachers, and state and local school officials, and not of federal judges. * * * It is only when the decision to censor a school-sponsored publication, theatrical pro- duction, or other vehicle of student expression has no valid educational pur- pose that the First Amendment is so “directly and sharply impl icate[dl” as to require judicial intervention to protect students’ constitutional rights.

* * *

In sum, we cannot reject as unreasonable Principal Reynolds’ conclu- sion that neither the pregnancy article nor the divorce article was suitable for publication in Spectrum. Reynolds could reasonably have concluded that the students who had written and edited these articles had not suffi- ciently mastered those portions of the Journalism II curriculum that per- tained to the treatment of controversial issues and personal attacks, the need to protect the privacy of individuals whose most intimate concerns are to be revealed in the newspaper, and “the legal, moral, and ethical restrictions im- posed upon journalists within [a] school community” that includes adoles- cent subjects and readers. Finally, we conclude that the principal’s decision to delete two pages of Spectrum, rather than to delete only the offending articles or to require that they be modified, was reasonable under the cir- cumstances as he understood them. Accordingly, no violation of First Amendment rights occurred.

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The judgment of the Court of Appeals for the Eighth Circuit is therefore

Reversed.

Notes and Questions

Courts in the United States have looked especially skeptically at attempts to censor materials prior to their publication. Was the Supreme Court’s up- holding of Principal Reynolds significant in this regard?

Will the holding in Kuhlmeier, a five-to-three decision, coupled with the seven-to-two decision in Fraser, have a chilling effect on related suits being brought before the courts? For example, what effect will the decision have on other “school-sponsored expressive activities” such as plays, year- books, program notices, and debates?

It is clear that a majority on the Court perceived a major purpose of public schooling to be the inculcation of society’s values as defined by so- ciety’s elders. Does the Court’s articulation of this viewpoint represent a retreat from the educational philosophy expressed in Tinker, that a school should be a marketplace of ideas and that the proper socialization for a free people is the early exercise of freedom?

As a consequence of Fraser and Kuhlmeier, it seems likely thatschool authorities will be less hesitant to prohibit student expression that they heretofore may have thought was protected under the Tinker doctrine. Nevertheless, authorities apparently may choose to establish public fo- rums within their schools and, thus, to surrender their discretion to censor student expression. To preserve such discretion they should clearly distin- guish curricular activities from activities intended for students’ expression of their views. Hazelwood authorities prevailed partly because they re- tained, “by policy and practice,” the curricular identity of Spectrum, and consequently they “retained ultimate control over what constituted re- sponsible journalism.” Written policies and curriculum coupled with con- sistent practices bolstered their position and may be considered a model for legally defensible behavior in school administration.

Prohibiting a marching band from performing the song “White Rab- bit,” which the school superintendent thought promoted the illegal use of drugs, did not violate students’ freedom of speech. In its decision in Mc- Cann v. Fort Zumwalt School District, 50 F. Supp.2d 918 (Mo. 1999), the court contended that: band activity such as playing at football games consti- tuted school-sponsored speech and bore the imprimatur of the school; the marching band was part of the curriculum for those enrolled in sym- phonic band; and participating in scheduled performances was part of a student’s grade.

May a school refuse to publish a student’s picture in the yearbook be- cause the student was in violation of the grooming code? The Ohio

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Supreme Court held that a picture of a student whose hairstyle was in vi- olation of the code could not be excluded from the school yearbook, which was to be distributed after the school year ended. However, the school could refrain from publishing a yearbook. See McClung v. Board of Educa- tion of City of Washington C.H., 346 N.E.2d 691 (Ohio 1976). Also see Stanton v. Brunswick School Department, 577 F. Supp. 1560 (Me. 1984), which ad- dressed the appropriateness in a yearbook of a student-selected quotation vividly describing execution by electrocution. The court stated that the school had created a public forum by permitting students to include a quote under their pictures and that matters of taste may not be censored by vague, subjective, or nondiscrete standards.

A federal district court upheld a school board’s decision not to pro- duce Runaways, a play in which child abuse, rape, murder, and drug abuse were simulated. In its holding the court declared that seventh- through twelfth-grade students were not denied their First Amendment rights and that the school board was within its authority to protect the well-being of its students. See Bell v. U-32 Board of Education, 630 F. Supp. 939 (Vt. 1986).

School newspapers often accept, and in fact solicit, advertising to de- fray expenses and to provide students with valuable business experience relating to the operation of a newspaper. A federal appellate court did not uphold a school board’s refusal to accept advertising from the San Diego Committee Against Registration and the Draft. The court in this instance reasoned that the school board had created a limited public forum by al- lowing some members of the public to use its newspapers to engage in speech that combined elements of political and commercial speech. See San Diego Committee Against Registration and the Draft v. Governing Board of Grossmont Union High School District, 790 F.2d 1471 (9th Cir. 1986). How- ever, see Planned Parenthood v. Clark County School District, 941 F.2d 817 (9th Cir. 1991), in which the en banc court rejected Planned Parenthood adver- tisements in the high school papers, yearbooks, and athletic event pro- grams. The advertisements referred to gynecological exams, birth control methods, pregnancy testing and verification, and pregnancy counseling and referral. In its decision, the court contended that all three publications constituted nonpublic forums rather than designated public forums and that these advertisements were reasonably rejected by school authorities because they would be controversial and would distract from the school’s mission.

Student editors of a school newspaper and yearbook refused to ac- cept an advertisement promoting sexual abstinence that was submitted as part of a condoms-versus-abstinence debate taking place in the school. The student editors’ rejection was based on their policy of not accepting polit- ical or controversial advertising. In its en banc decision to uphold the stu- dent editors, in Yeo v. Town of Lexington, 131 F.3d 241 (1st Cir.1997), cert. denied, 524 U.S. 904 (1998), the court emphasized that the decision not to

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print the ad was solely a student decision and therefore did not constitute “state action.” In discussing the state action issue, the court asserted that not only had the school officials granted the students editorial autonomy, but evidence revealed that their relationship with the students at times was close to adversarial.

Does your school system have ‘policies pertaining to school- sponsored expressive activities?

C. Participation in Patriotic Exercises

Students have challenged local policies or state statutes requiring their participation in patriotic exercises. The most common challenge centers on participation in the pledge of allegiance. Sherman v. Community School District 21 upheld a student’s position not to participate in the pledge and follows the rationale of other courts that have addressed this issue.

SHERMAN v. COMMUNITY SCHOOL DISTRICT 21

United States Court of Appeals, 7th Circuit, 1992 980 F.2d 437

cert. denied, 508 U. S. 950 (1993)

EASTERB ROOK, Circuit Judge. “[\I]o official, high or petty, can prescribe what shall be orthodox in pol-

itics, nationalism, religion, or other matters of opinion or force citizens to con- fess by word or act their faith therein.” West Virginia State Board of Education

v. Barnette. A state therefore may not compel any person to recite the Pledge of Allegiance to the flag. On similar grounds, Wooley v. Maynard adds that a

state may not compel any person to display its slogan. Does it follow that a pupil who objects to the content of the Pledge may prevent teachers and other

pupils from reciting it in his presence? We conclude that schools may lead the Pledge of Allegiance daily, so long as pupils are free not to participate.

In 1979 Illinois enacted this statute: “The Pledge of Allegiance shall be

recited each school day by pupils in elementary institutions supported or maintained in whole or in part by public funds.” Ill. Rev. Stat. ch 122 1[27-3. * * *

* * * What the law requires of principals, teachers, and pupils depends on

the language it contains rather than the penalties it omits. And what 1127-3

says is that the pledge “shall be recited each school day by pupils” in public schools. Some pupils? Willing pupils? All pupils? It does not specify. If it means “all pupils” then it is blatantly unconstitutional; if it means “willing

118 CHAPTER THREE

pupils” then the most severe constitutional problem dissolves. When resolv- ing statutory ambiguities, the Supreme Court of Illinois adopts readings that save rather than destroy state laws. Given Barnette, which long predated en- actment of this statute, it makes far more sense to interpolate “by willing pupils” than “by all pupils.” School administrators and teachers satisfy the “shall” requirement by leading the Pledge and ensuring that at least some pupils recite. Leading the Pledge is not optional, but participating is. This makes sense of the statute without imputing a flagrantly unconstitutional act to the State of Illinois.

This understanding is consistent with the practice in the Wheeling schools. The superintendent of schools, the principal of Riley School, and his first grade teacher when this suit began, all filed affidavits stating that neither Richard nor any other pupil is compelled to recite the Pledge, to place his hand over his heart, to stand, or to leave the room while others recite. Mari- lyn Barden, Richard’s teacher, averred that she brooks no hazing of those who decline to participate, and that she has never noticed any. * * *

* * *

A pupil who takes exception to the prescribed curriculum of the public schoolswhether the textbooks or the class discussions or the civic cere- monies such as the pledge of Allegianceis asserting a right to accommo- dation of his political or religious beliefs. Humane government often calls for accommodation; programs such as tuition vouchers serve this interest with- out offending other constitutional norms. Government nonetheless retains the right to set the curriculum in its own schools and insist that those who cannot accept the result exercise their right under Pierce v. Society of Sisters, and select private education at their own expense. The private market sup- ports a profusion of schools, many tailored to religious or cultural minorities, making the majoritarian curriculum of the public schools less oppressive. * * * All that remains is Barnette itself, and so long as the school does not compel pupils to espouse the content of the Pledge as their own belief, it may carry on with patriotic exercises. Objection by the few does not reduce to silence the many who want to pledge allegiance to the flag “and to the Republic for which it stands.”

* * *

Notes and Questions

In an earlier decision, a student’s position was upheld in a refusal to stand at respectful attention during the salute to the flag. The student in this case contended that the words of the pledge were not true. See Lipp v. Morris, 579 F.2d 834, (3rd Cir. 1978). A student’s position was also upheld in a re-

Students and the Law 119

fusal to stand during the pledge, because he believed “that there [isn’t] lib- erty and justice for all in the United States.” The court did not agree that the option of either leaving the room or standing quietly during the pledge cer- emony was a viable option. See Goetz v. Anse 11, 477 F.2d 636 (2nd Cir. 1973).

The United States Supreme Court upheld the rights of Jehovah’s Wit- nesses not to participate in the pledging of the flag. See West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943). This opinion was ren- dered while the United States was engaged in World War II, and many ob- servers contend that the decision is a dramatic espousal of the individual’s right of freedom of expression. In often quoted sections, the Court stated:

. . One’s right to life, liberty and property, to free speech, a free press, free- dom to worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections. (p. 638)

* * * If there is any fixed star in our constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us. (p. 642)

Georgia has a statutory provision that states:

Each student in the public schools of the State of Georgia shall be afforded the opportunity to recite the Pledge of Allegiance to the flag of the United States of America during each school day. It shall be the duty of each local board of education to establish a policy setting the time and manner for recitation of the Pledge of Allegiance. Said policy shall be established in writ- ing and shall be distributed to each teacher within the school. Ga. Code Ann. § 20-2-286 (1976).

Disrespect such as burning the American flag has been the subject of political, statutory, and judicial debate. Following the United States Supreme Court decision in Texas v. Johnson, 491 U.S. 397 (1989), which held a Texas law criminalizing desecration of the flag as unconstitutional, Con- gress enacted the Flag Protection Act of 1989, which made it a crime for anyone who “knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon” a United States flag. In a five-to-four decision invalidating this act, the Court stated: “While flag desecrationlike virulent ethnic and religious epithets, vulgar repu- diations of the draft, and scurrilous caricaturesis deeply offensive to many, the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” See. United States v. Eichman, 496 U.S. 310 (1990).

Does your state have a provision addressing student participation in patriotic exercises? What is your local school system’s policy on this issue?

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II. SUSPENSION, EXPULSION, AND DISCIPLINARY TRANSFER

Students may be excluded from school for failure to conform to legitimate rules. Exclusion from school for ten days or lessthe usual practice for minor violations of school rulesis considered to be a suspension. Expul- sion is an exclusion from school for the remainder of a quarter, for a se- mester, for an academic year, or permanently and occurs on repeated or major infractions of school rules or criminal conviction. Court opinions have held that because students have a valuable property interest in at- tending school, they must be provided due process prior to their being ex- cluded from school. Careful reading of these opinions reveals that the degree of due process that must be afforded a student varies in direct pro- portion to the length of the exclusion. Nondisabled students may also be transferred, for disciplinary reasons, to another school from the one they are attending. Consequently, courts have had to determine the degree of due process required, if any, prior to such a transfer.

A. Suspension

GOSS v. LOPEZ Supreme Court of the United States, 1975

419 U.S. 565

MR. JUSTICE WHITE delivered the opinion of the Court. This appeal by various administrators of the Columbus, Ohio, Public

School System (CPSS) challenges the judgment of a three-judge federal court, declaring that appelleesvarious high school students in the CPSSwere denied due process of law contrary to the command of the Fourteenth Amendment in that they were temporarily suspended from their high schools without a hearing either prior to suspension or within a reasonable time thereafter, and enjoining the administrators to remove all references to such suspensions from the students’ records.

Ohio law, Rev. Code Ann. § 3313.64 (1972), provides for free educa- tion to all children between the ages of six and 21. Section 3313.66 of the Code empowers the principal of an Ohio public school to suspend a pupil for misconduct for up to 10 days or to expel him. In either case, he must no- tify the student’s parents within 24 hours and state the reasons for his action. A pupil who is expelled, or his parents, may appeal the decision to the Board of Education and in connection therewith shall be permitted to be heard at the board meeting. The Board may reinstate the pupil following the hearing. No similar procedure is provided in § 3313.66 or any other provision of state law for a suspended student. Aside from a regulation tracking the statute, at

Students and the Law 1 21

the time of the imposition of the suspensions in this case the CPSS itself had not issued any written procedure applicable to suspensions. Nor, so far as the record reflects, had any of the individual high schools involved in this case. Each, however, had formally or informally described the conduct for which suspension could be imposed.

The nine named appellees, each of whom alleged that he or she had been suspended from public high school in Columbus for up to 10 days without a hearing pursuant to § 3313.66, filed an action under 42 U.S.C. § 1983 against the Columbus Board of Education and various administrators of the CPSS. The complaint sought a declaration that § 3313.66 was unconsti- tutional in that it permitted public school administrators to deprive plaintiffs of their rights to an education without a hearing of any kind, in violation of the procedural due process component of the Fourteenth Amendment. It also sought to enjoin the public school officials from issuing future suspensions pursuant to § 3313.66 and to require them to remove references to the past suspensions from the records of the students in question.

The proof below established that the suspensions arose out of a period of widespread student unrest in the CPSS during February and March 1971. Six of the named plaintiffs, Rudolph Sutton, Tyrone Washington, Susan Cooper, Deborah Fox, Clarence Byars, and Bruce Harris, were students at the Marion-Franklin High School and were each suspended for 10 days on account of disruptive or disobedient conduct committed in the presence of the school administrator who ordered the suspension. One of these, Tyrone Washington, was among a group of students demonstrating in the school au- ditorium while a class was being conducted there. He was ordered by the school principal to leave, refused to do so, and was suspended. Rudolph Sut- ton, in the presence of the principal, physically attacked a police officer who was attempting to remove Tyrone Washington from the auditorium. He was immediately suspended. The other fou’r Marion-Franklin students were sus- pended for similar conduct. None was given a hearing to determine the op- erative facts underlying the suspension, but each, together with his or her parents, was offered the opportunity to attend a conference, subsequent to the effective date of the suspension, to discuss the student’s future.

Two named plaintiffs, Dwight Lopez and Betty Crome, were students at the Central High School and McGuffey junior High School, respectively. The former was suspended in connection with a disturbance in the lunchroom which involved some physical damage to school property. Lopez testified that at least 75 other students were suspended from his school on the same day. He also testified below that he was not a party to the destructive con- duct but was instead an innocent bystander. Because no one from the school testified with regard to this incident, there is no evidence in the record indi- cating the official basis for concluding otherwise. Lopez never had a hearing.

Betty Crome was present at a demonstration at a high school other than the one she was attending. There she was arrested together with others,

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taken to the police station, and released without being formally charged. Be- fore she went to school on the following day, she was notified that she had been suspended for a 10-day period. Because no one from the school testi- fied with respect to this incident, the record does not disclose how the McGuffey Junior High School principal went about making the decision to suspend Crome, nor does it disclose on what information the decision was based. It is clear from the record that no hearing was ever held.

* * *

On the basis of this evidence, the three-judge court declared that plain- tiffs were denied due process of law because they were “suspended without hearing prior to suspension or within a reasonable time thereafter,” and that Ohio Rev. Code Ann. § 3313.66 (1972) and regulations issued pursuant thereto were unconstitutional in permitting such suspensions. It was ordered that all references to plaintiffs’ suspensions be removed from school files.

Although not imposing upon the Ohio school administrators any par- ticular disciplinary procedures and leaving them “free to adopt regulations providing for fair suspension procedures which are consonant with the edu- cational goals of their schools and reflective of the characteristics of their school and locality,” the District Court declared that there were “minimum requirements of notice and a hearing prior to suspension, except in emer- gency situations.” In explication, the court stated that relevant case authority would: (1) permit “[dmmediate removal of a student whose conduct disrupts the academic atmosphere of the school, endangers fellow students, teachers or school officials, or damages property”; (2) require notice of suspension proceedings to be sent to the student’s parents within 24 hours of the deci- sion to conduct them; and (3) require a hearing to be held, with the student present, within 72 hours of his removal. Finally, the court stated that, with re- spect to the nature of the hearing, the relevant cases required that statements in support of the charge be produced, that the student and others be permit- ted to make statements in defense or mitigation, and that the school need not permit attendance by counsel.

* * *

Although Ohio may not be constitutionally obligated to establish and maintain a public school system, it has nevertheless done so and has required its children to attend. * * * The authority possessed by the State to prescribe and enforce standards of conduct in its schools although concededly very broad, must be exercised consistently with constitutional safeguards. Among other things, the State is constrained to recognize a student’s legitimate enti- tlement to a public education as a property interest which is protected by the Due Process Clause and which may not be taken away for misconduct with- out adherence to the minimum procedures required by that Clause.

The Due Process Clause also forbids arbitrary deprivations of liberty. “Where a person’s good name, reputation, honor, or integrity is at stake be- cause of what the government is doing to him,” the minimal requirements of

Students and the Law 1 23

the Clause must be satisfied. * * * School authorities here suspended ap- pellees from school for periods of up to 10 days based on charges of mis- conduct. If sustained and recorded, those charges could seriously damage the students’ standing with their fellow pupils and their teachers as well as interfere with later opportunities for higher education and employment. It is apparent that the claimed right of the State to determine unilaterally and without process whether that misconduct has occurred immediately collides with the requirements of the Constitution.

Appellants proceed to argue that even if there is a right to a public ed- ucation protected by the Due Process Clause generally, the Clause comes into play only when the State subjects a student to a “severe detriment or grievous loss.” The loss of 10 days, it is said, is neither severe nor grievous and the Due Process Clause is therefore of no relevance. * * * A 10-day sus- pension from school is not de minimis in our view and may not be imposed in complete disregard of the Due Process Clause.

A short suspension is, of course, a far milder deprivation than expul- sion. But “education is perhaps the most important function of state and local governments,” * * * and the total exclusion from the educational process for more than a trivial period, and certainly if the suspension is for 10 days, is a serious event in the life of the suspended child. Neither the property interest in educational benefits temporarily denied nor the liberty interest in reputation, which is also implicated, is so insubstantial that sus- pensions may constitutionally be imposed by any procedure the school chooses, no matter how arbitrary.

“Once it is determined that due process applies, the question remains what process is due.” * * *

* * * At the very minimum, therefore, students facing suspension and the consequent interference with a protected property interest must be given some kind of notice and afforded some kind of hearing. “Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.” * * *

It also appears from our cases that the timing and content of the notice and the nature of the hearing will depend on appropriate accommodation of the competing interests involved. * * * The student’s interest is to avoid un- fair or mistaken exclusion from the educational process, with all of its unfor- tunate consequences. The Due Process Clause will not shield him from suspensions properly imposed, but it disserves both his interest and the in- terest of the State if his suspension is in fact unwarranted. The concern would be mostly academic if the disciplinary process were a totally accurate, un- erring process, never mistaken and never unfair. Unfortunately, that is not the case, and no one suggests that it is. Disciplinarians, although proceeding in utmost good faith, frequently act on the reports and advice of others; and the controlling facts and the nature of the conduct under challenge are often dis- puted. The risk of error is not at all trivial, and it should be guarded against if

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that may be done without prohibitive cost or interference with the educa- tional process.

The difficulty is that our schools are vast and complex. Some modicum of discipline and order is essential if the educational function is to be per- formed. Events calling for discipline are frequent occurrences and sometimes require immediate, effective action. Suspension is considered not only to be a necessary tool to maintain order but a valuable educational device. The prospect of imposing elaborate hearing requirements in every suspension case is viewed with great concern, and many school authorities may well pre- fer the untrammeled power to act unilaterally, unhampered by rules about no- tice and hearing. But it would be a strange disciplinary system in an educational institution if no communication was sought by the disciplinarian with the student in an effort to inform him of his dereliction and to let him tell his side of the story in order to make sure that an injustice is not done. * * *

We do not believe that school authorities must be totally free from no- tice and hearing requirements if their schools are to operate with acceptable efficiency. Students facing temporary suspension have interests qualifying for protection of the Due Process Clause, and due process requires, in connec- tion with a suspension of 10 days or less, that the student be given oral or written notice of the charges against him and, if he denies them, an explana- tion of the evidence the authorities have and an opportunity to present his side of the story. The Clause requires at least these rudimentary precautions against unfair or mistaken findings of misconduct and arbitrary exclusion from school.

There need be no delay between the time “notice” is given and the time of the hearing. In the great majority of cases the disciplinarian may in- formally discuss the alleged misconduct with the student minutes after it has occurred. We hold only that, in being given an opportunity to explain his version of the facts at this discussion, the student first be told what he is ac- cused of doing and what the basis of the accusation is. * * * Since the hear- ing may occur almost immediately following the misconduct, it follows that as a general rule notice and hearing should precede removal of the student from school. We agree with the District Court, however, that there are recur- ring situations in which prior notice and hearing cannot be insisted upon. Students whose presence poses a continuing danger to persons or property or an ongoing threat of disrupting the academic process may be immediately removed from school. In such cases, the necessary notice and rudimentary hearing should follow as soon as practicable, as the District Court indicated.

In holding as we do, we do not believe that we have imposed proce- dures on school disciplinarians which are inappropriate in a classroom set- ting. Instead we have imposed requirements which are, if anything, less than a fair-minded school principal would impose upon himself in order to avoid unfair suspensions. Indeed, according to the testimony of the principal of Marion-Franklin High School, that school had an informal procedure, re-

1,5 2

Students and the Law 1 25

markably similar to that which we now require, applicable to suspension generally but which was not followed in this case. * * *

We stop short of construing the Due Process Clause to require, coun- trywide, that hearings in connection with short suspensions must afford the student the opportunity to secure counsel, to confront and cross-examine witnesses supporting the charge, or to call his own witnesses to verify his version of the incident. Brief disciplinary suspensions are almost countless. To impose in each such case even truncated trial-type procedures might well overwhelm administrative facilities in many places and, by diverting re- sources, cost more than it would save in educational effectiveness. More- over, further formalizing the suspension process and escalating its formality and adversary nature may not only make it too costly as a regular discipli- nary tool but also destroy its effectiveness as part of the teaching process.

* * We should also make it clear that we have addressed ourselves solely

to the short suspension, not exceeding 10 days. Longer suspensions or ex- pulsions for the remainder of the school term, or permanently, may require more formal procedures. Nor do we put aside the possibility that in unusual situations, although involving only a short suspension, something more than the rudimentary procedures will be required.

The District Court found each of the suspensions involved here to have occurred without a hearing, either before or after the suspension, and that each suspension was therefore invalid and the statute unconstitutional inso- far as it permits such suspensions without notice or hearing. Accordingly, the judgment is

Affirmed.

MR. JUSTICE POWELL, with whom THE CHIEF JUSTICE, MR. JUSTICE BLACKMUN, and MR. JUSTICE REHNQUIST join, dissenting.

The Court today invalidates an Ohio statute that permits student sus- pensions from school without a hearing “for not more than ten days.” The decision unnecessarily opens avenues for judicial intervention in the opera- tion of our public schools that may affect adversely the quality of education. The Court holds for the first time that the federal courts, rather than educa- tional officials and state legislatures, have the authority to determine the rules applicable to routine classroom discipline of children and teenagers in the public schools. It justifies this unprecedented intrusion into the process of elementary and secondary education by identifying a new constitutional right: the right of a student not to be suspended for as much as a single day without notice and a due process hearing either before or promptly follow- ing the suspension.

The Court’s decision rests on the premise that, under Ohio law, educa- tion is a property interest protected by the Fourteenth Amendment’s Due Process Clause and therefore that any suspension requires notice and a

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hearing. In my view, a student’s interest in education is not infringed by a suspension within the limited period prescribed by Ohio law. Moreover, to the extent that there may be some arguable infringement, it is too specula- tive, transitory, and insubstantial to justify imposition of a constitutional rule.

* * * One of the more disturbing aspects of today’s decision is its indiscrim-

inate reliance upon the judiciary, and the adversary process, as the means of resolving many of the most routine problems arising in the classroom. * * *

The Ohio statute, providing as it does for due notice both to parents and the Board, is compatible with the teacher-pupil relationship and the in- formal resolution of mistaken disciplinary action. We have relied for genera- tions upon the experience, good faith and dedication of those who staff our public schools, and the nonadversary means of airing grievances that always have been available to pupils and their parents. One would have thought be- fore today’s opinion that this informal method of resolving differences was more compatible with the interests of all concerned than resort to any con- stitutional ized procedure, however blandly it may be defined by the Court.

* * * It hardly need be said that if a student, as a result of a day’s suspension,

suffers “a blow” to his “self-esteem,” “feels powerless,” views “teachers with resentment,” or feels “stigmatized by his teachers,” identical psychological harms will flow from many other routine and necessary school decisions. The student who is given a failing grade, who is not promoted, who is ex- cluded from certain extracurricular activities, who is assigned to a school re- served for children of less than average ability, or who is placed in the “vocational” rather than the “college preparatory” track, is unlikely to suffer any less psychological injury than if he were suspended for a day for a rela- tively minor infraction.

* * * Not so long ago, state deprivations of the most significant forms of state

largesse were not thought to require due process protection on the ground that the deprivation resulted only in the loss of a state-provided “benefit.” * * * In recent years the Court, wisely in my view, has rejected the “wooden distinction between ‘rights’ and ‘privileges,’ ” * * * and looked instead to the significance of the state-created or state-enforced right and to the substan- tiality of the alleged deprivation. Today’s opinion appears to abandon this reasonable approach by holding in effect that government infringement of any interest to which a person is entitled, no matter what the interest or how inconsequential the infringement, requires constitutional protection. As it is difficult to think of any less consequential infringement than suspension of a junior high school student for a single day, it is equally difficult to perceive any principled limit to the new reach of procedural due process.

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Notes and Questions

Goss, a five-to-four decision, reveals a sharp division among the Court’s justices. Does such a division make Goss any less the supreme law of the land? Is the due process requirement established in Goss educationally sound? Would seriatim ten-day suspensions for the same offense violate the rationale established in Goss?

Students were suspended five days for fighting at a football game and the next day in the principal’s office. Although no notice or hearing was given prior to the suspension, a federal district court contended that this case fit within an exception to the predeprivation and notice hearing requirement of Goss. The court also concluded that their subsequent ex- pulsion hearing was fair, even though the students were not provided with a copy of the Code of Conduct or a copy of the principal’s written re- port before the hearing, nor were they allowed to cross-examine witnesses. See Craig v. Selma City School Board, 801 F. Supp. 585 (Ala. 1992).

A student challenged his principal’s denial of readmission to school for one day following the student’s arrest for allegedly raping another stu- dent. The court in Durso v. Taylor, 624 A.2d 449 (D.C. App. 1993) ruled that informal hearings with the principal and assistant principal, and a subse- quent formal hearing, satisfied due process requirements.

A high school senior who admitted to drinking on a school outing was suspended for three days at the end of the academic year, and conse- quently he missed a final examination and failed to make the required grade point for graduation. His parents contended that the punishment amounted to more than a suspension. However, although seeming to sym- pathize with the student, a federal appellate court did not agree that he was entitled to the same degree of due process as that for an expulsion. A meeting with the principal and an opportunity for the parents to present a “mitigative argument” to the principal met the due process requirement. The court stated that “it is not the role of the federal courts to set aside the decisions of school administrators which the court may view as lacking a basis in wisdom or compassion.” See Lamb v. Panhandle Community Unit School District No. 2, 826 F.2d 526 (7th Cir. 1987).

The use of a so-called timeout box, a device to temporarily isolate im- ruly students, has been upheld in Dickens v. Johnson County Board of Educa- tion, 661 F. Supp. 155 (Tenn. 1987). In this instance, the “box” had three sides enclosing a desk at which the student could see the teacher and hear the class but could not see other pupils. He was allowed to go to the rest room and to attend scheduled activities such as lunch, physical education, and specialty classes. It was alleged that he had spent as long as four and one- half hours on six consecutive days in the “box.” In explaining that the stu- dent’s due process property interest had not been violated, the court stated:

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Of course, students are entitled to hearings before they are expelled or sus- pended since these actions totally excluded them from the educational process. But teachers should be free to impose minor forms of classroom dis- cipline, such as admonishing students, requiring special assignments, re- stricting activities, and denying certain privileges, without being subjected to the strictures of due process scrutiny. (p. 157)

And the court further stated:

It appears that judicious use of behavioral modification techniques such as “timeout” should be favored over expulsion in disciplining disruptive stu- dents. This is not to say that educators may arbitrarily cage students in a cor- ner of the classroom for an indeterminate length of time. Nevertheless, the Court finds the defendants’ use of timeout in this case was not unduly harsh or grossly disproportionate. (p. 158)

Does your state have statutory provisions pertaining to suspension? What are your local school system’s rules regarding suspension?

B. Expulsion

1. Public School Expulsion

GONZALES v. McEUEN United States District Court, Central District of California, 1977

435 F. Supp. 460

TAKASUGI, District Judge. Eleven high school students, by their next friends, have brought this ac-

tion under the Civil Rights Act, 42 U.S.C. § 1983, and the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States. The case stems from the suspension and expulsion of the named plaintiffs from Oxnard Union High School following a period of student unrest on campus during October 14-15,1976. The plaintiffs were charged with having com- mitted certain acts which, it was alleged, led to a riot at Oxnard High School.

* * * Plaintiffs’ strongest and most serious challenge is to the impartiality of

the Board. They contend that they were denied their right to an impartial hearing before an independent fact-finder. The basis for this claim is, first, overfamiliarity of the Board with the case; second, the multiple role played by defendants’ counsel; and third, the involvement of the Superintendent of the District, Mr. McEuen, with the Board of Trustees during the hearings.

No one doubts that a student charged with misconduct has a right to an impartial tribunal * * * . There is doubt, however, as to what this means. Var- ious situations have been identified in which experience teaches that the probability of actual bias on the part of the judge or decisionmaker is too

Students and the Law 1 29

high to be constitutionally tolerable. Bias is presumed to exist, for example, in cases in which the adjudicator has a pecuniary interest in the outcome; * * * or in which he has been the target of personal attack or criticism from the person before him. * * * The decisionmaker may also have such prior in- volvement with the case as to acquire a disqualifying bias. * * * The question before the Court is not whether the Board was actually biased, but whether, under the circumstances, there existed probability that the decisionmaker would be tempted to decide the issues with partiality to one party or the other. It is with this view that the plaintiffs’ claims must be considered.

Much has been made of “The Red Book” which, it is claimed, con- tained information about the academic and disciplinary records of plaintiffs. It is alleged that the Board had access to this material from twenty to thirty days before the expulsion hearings. Depositions submitted to the court show that the members of the Board met with school officials prior to the hearings. Plaintiffs contend that this prior involvement by the Board de- prived plaintiffs of the opportunity for a fair hearing. The court rejects this contention. Exposure to evidence presented in a nonadversary investigative procedure is insufficient in itself to impugn the fairness of the Board mem- bers at a later adversary hearing. * * * Nor is a limited combination of in- vestigatory and adjudicatory functions in an administrative body necessarily unfair, absent a showing of other circumstances such as malice or personal interest in the outcome. * * * A school board would be amiss in its duties if it did not make some inquiry to know what was going on in the district for which it is responsible. Some familiarity with the facts of the case gained by an agency in the performance of its statutory role does not disqualify a de- cisionmaker. * * *

Turning now to the issue of the multiple roles performed by defendants’ counsel, the court notes that the board members are defendants in this pend- ing related action and may thereby become subject to personal liability.

It is undisputed that attorneys for the District who prosecuted the charges against the plaintiffs in the expulsion proceedings, also represent the Board members in this action. Plaintiffs claim that the attorneys acted in dual roles at the expulsion hearing: as prosecutors for the Administration and as legal advisors to the Board. Counsel for defendants admit that they advised the Board prior to the hearings with respect to its obligations regarding these expulsions, but they deny that they advised the Board during the proceed- ings themselves.

A reading of the transcripts reveals how difficult it was to separate the two roles. Special mention should be made of the fact that the Board enjoys no legal expertise and must rely heavily upon its counsel. This places defen- dants’ attorneys in a position of intolerable prominence and influence.

It is the opinion of this court that the confidential relationship between the attorneys for the District and the members of the Board, reinforced by the advisory role played by the attorneys for the Board, created an unacceptable

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risk of bias. Bearing in mind also that the Board members are subject to per- sonal liability in this action, the court concludes that bias can be presumed to exist.

Superintendent McEuen sat with the Board members during the expul- sion hearings; he acted as Secretary of the Board on at least one occasion. By statute, Mr. McEuen is the chief advisor to the Board. The fact remains, how- ever, that he is also the chief of the “prosecution” team, to wit, the District.

It is clear from the record that at least on one occasion, at the joint hearing of plaintiffs, Flores, Chavez and Rodriguez, Superintendent McEuen was present with the Board for approximately forty-five minutes during its deliberations on the issue of expelling these plaintiffs. The plaintiffs contend that their due process rights were violated by the involvement of Mr. McEuen with the Board. This court agrees.

Defendants’ counsel maintain that Mr. McEuen did not participate in the deliberations and did no more, perhaps, than serve cookies and coffee to the Board members. Whether he did or did not participate, his presence to some extent might operate as an inhibiting restraint upon the freedom of action and expression of the Board. Defendants argue that there is no evi- dence that Mr. McEuen influenced or biased the Board. Proof of subjective reasoning processes are incapable of corroboration or disproval. Plaintiffs should not be forced to rely upon the memory or sense of fairness of Su- perintendent McEuen or the Board as to what occurred there. Perhaps Mr. McEuen’s physical presence in deliberation becomes more offensive be- cause of the pre-hearing comments which showed something less than im- partiality.

The court concludes that the process utilized by the Board was funda- mentally unfair. This raises a presumption of bias. In view of the alternatives for the selection of an impartial hearing body under California Education Code Section 10608, it would have been more reasonable to provide procedures that insured not only that justice was done, but also that it appeared to have been done.

* * * Plaintiffs Barrington and Munden were expelled at a meeting of the

Board on November 10, 1976. Neither Barrington nor Munden was present; neither was represented by either parent or counsel.

On October 29, 1976, letters had been sent to the parents advising them that the principal was recommending expulsion of the students. The letters. contained a specific statement of the charges: in the case of Barring- ton, that he was involved in a riot at school at which time he had threatened physical violence against a teacher; in the case of Munden, that he was in- volved in a fight with another student, Wayne Berry. The letters contained no notice to the student or parent of the student’s right to be present at the hear- ing, to be represented by counsel, and to present evidence. This was a clear violation of § 10608 of the California Education Code. The letters to the par-

Students and the Law 131

ents stated, “If you feel that the school does not have just cause for this rec- ommendation, you may want to attend this meeting to present your reasons why [the students] should not be expelled.”

* * * Goss clearly anticipates that where the student is faced with the severe

penalty of expulsion he shall have the right to be represented by and through counsel, to present evidence on his own behalf, and to confront and cross- examine adverse witnesses.

* * *

Notice to be adequate must communicate to the recipient the nature of the proceeding. In an expulsion hearing, the notice given to the student must include a statement not only of the specific charge, but also the basic rights to be afforded the student: to be represented by counsel, to present evidence, and to confront and cross-examine adverse witnesses. Section 10608 of the California Education Code provides, inter alia, for hotice to the student and the parent of the specific charge, of the right to be repre- sented by counsel, and of the right to present evidence. Federal due process requires no less.

Defendants next argue that even if the notice was defective, the court must still determine whether the plaintiffs were given a fair and impartial hearing. Defendants misapprehend the meaning of notice. It is not “fair” if the student does not know, and is not told, that he has certain rights which he may exercise at the hearing.

* * *

The court holds that the notice given to plaintiffs Barrington and Munden was defective in that it did not adequately inform them of their con- stitutional rights. It follows that their expulsions were improper.

* * *

Notes and Questions

According to Gonzales, a notice of expulsion hearing, to be adequate, must communicate the nature of the proceedings to the recipient. Such a notice must also include a statement of the specific charges and basic rights available to the student, such as the right to be represented by coun- sel, to present evidence, and to confront and cross-examine adverse wit- nesses. Several decisions prior to Gonzales did not require notice of the right to be represented by counsel.

May a school superintendent participate, merely by being present at the expulsion deliberations, according to Gonzales?

The question of whether the same attorney may advise the school board and present the superintendent’s case at a hearing is discussed in Breit ling v. Solenberger, 585 F. Supp. 289 (Va. 1984). The federal district

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court in this instance held that this dual role did not violate due process requirements.

A school district’s policy of expelling students for possession of mar- ijuana on school grounds was upheld. The court stated that “[Ole policy of the Board as clearly set forth in its Code of Conduct is not arbitrary or capricious, but is a commendable effort in dealing with a serious, destruc- tive problem.” See Rucker v. Colonial School District, 517 A.2d 703 (Del. Super. Ct. 1986). However, an expulsion was not upheld in a case dealing with possession of marijuana off the school grounds. In this instance, the authority to expel was limited by statute to possession of marijuana on school grounds or on school buses. See Labrosse v. Saint Bernard Parish School Board, 483 So.2d 1253 (La. Ct. App. 1986).

A student was expelled after being arrested for possession of mari- juana after school hours and off campus. Under the state’s expulsion statute, a student’s conduct had to be “seriously disruptive of the educational process.” The school claimed that his arrest violated school policy and thereby seriously disrupted the educational environment. In upholding the student, the Connecticut Supreme Court held that “In order to subject a stu- dent to expulsion, conduct off school grounds must not only violate school policy, it must also be ‘seriously disruptive of the educational process’ for reasons other than the fact that it violated school policy.” Additionally, the court concluded that the student was not provided constitutionally ade- quate notice that such an incident would subject him to expulsion from school. See Packer v. Board of Education, 717 A.2d 117 (Conn. 1998).

Permanent expulsion was upheld for a student who violated a school district’s code for student conduct by being in possession of a knife and stabbing another student. The court in, D.B. v. Clarke County Board of Education, 469 S.E.2d 438 (Ga. App. 1996), held that the student’s constitu- tional right to a free public education and the state’s compulsory school at- tendance statute had not been violated.

A federal statute entitled the “Gun-Free Schools Act of 1994” man- dates expulsion for students who bring weapons to school. The law pro- vides, in part, that:

. each state receiving Federal funds . shall have in effect a State law requiring local educational agencies to expel from school for a period of not less that one year a student who is determined to have brought a weapon to a school under the jurisdiction of local educational agencies in that State, ex- cept that such State law shall allow the chief administering officer of such local educational agency to modify such expulsion requirement for a student on a case-by-case basis.

Nothing in this subchapter shall be construed to prevent a State from allowing a local educational agency that has expelled a student from such a student’s regular school setting from providing educational services to such student in an alternative setting. 20 U.S.C.A. § 8921 (1994).

1 6 0

Students and the Law 1 33

A perception of increased school violence since passage of the Gun- Free Schools Act of 1994 has resulted in the growth of zero tolerance poli- cies by many school systems. These well-intentioned policies were originally designed as a type of “one-strike-you’re-out” antidote for such serious offenses as student on campus drug trafficking or possession of dangerous weapons. Unfortunately, what many observers thought was a relatively tough-minded and simple panacea for school violence has be- come embroiled in controversy. Enforcing zero tolerance policies has often ensnared students in activities that parents view as relatively innocuous. The policies have been attacked for attempting to exclude students for the following types of alleged infractions: bringing a nail file to school that school officials viewed as a knife, a student’s writing a story about a mur- derous rampage at his school in addition to promising he would “mess” with the class, a student using her thumb and index finger to simulate a gun and saying “bang” to fellow students, and bringing a ceremonial sword to a history class. There is little doubt that school systems would de- crease antagonism toward zero tolerance policies if they adopt policies that are clearly written, adequately communicated to both students and parents, fairly enforced, and, perhaps most importantly, show that there is a need for such a policy by demonstrating the serious threat which exists to the school environment.

In a case involving a zero tolerance policy, a seventh-grade student was expelled for filing his nails with a miniature Swiss army knife he had found in a school hallway. The student and his parents had a meeting with his principal and participated in a hearing before he was expelled for pos- session of a knife under the district’s zero tolerance policy. In holding for the student, the court in Lyons v. Penn Hills School District, 723 A.2d 1073 (Pa. Commw. Ct. 1999), held that the school district’s failure to develop a written policy regarding expulsion for weapon possession and to provide the school superintendent with discretionary review of the expulsion on a case-by-case basis, violated the state statute governing school weapons policies.

Does your state have statutory provisions pertaining to expulsion? What are your local school system’s rules or policies regarding expulsion? If a student moved, would an expulsion in one school district automati- cally carry over to the new district?

2. Private School Expulsion Contract law, not the law of due process, generally governs the issue

of expulsion from a private school. As was discussed earlier, unless a sub- stantial linkage exists between a private school and the state or federal government, the notion of due process does not apply because the private school does not operate under the “color of the state,” and, therefore, no process is due.

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ALLEN v. CASPER Court of Appeals of Ohio, 1993

622 N.E.2d 367

PER CURIAM. * * *

Prior to enrolling their children at Bethlehem Christian, the Aliens filled out an application for enrollment. As part of the application process, the Al- iens were provided with a copy of the school’s admission policies, which ap- plied to parents as well as students.

Paragraph 3 of the Policies and Procedures states: “The school reserves the right to refuse admittance, suspend, or expel

any student who does not cooperate with policies established in this book. The high standard and Biblical principles that our school holds apply to after school hours as well. If any parent or student refuses to follow those stan- dards, then they place their privilege of attending B.C.S. in jeopardy.”

Paragraph 7 states: “Parents of students (as set forth on the application) must have received

Jesus Christ as Savior and Lord. They must also be in agreement with our doctrinal statement, demonstrate a spirit of cooperation, and uphold the stu- dent handbook.”

After their application was accepted, the Allens signed a parents’ agree- ment and were sent a copy of the school handbook, which related to disci- plinary procedures and parental involvement. As part of their parents’ agreement, the Aliens agreed as follows:

“We recognize that confidence in our child’s teachers and school ad- ministration is essential. Therefore, we will encourage our child to respect and obey school policies and school officials. We agree that, if our child should become involved in any difficulty at school, we will not complain to other parents, but, with a prayerful Christian spirit, will register only neces- sary complaints with the appropriate teacher and/or administrator.”

The school handbook, which relates to disciplinary procedures and parental involvement, provides in relevant part as follows:

“If a parent has a question or concern related to a classroom situation, he should first meet with the particular classroom teacher. If the matter is not resolved, the administrator is the proper person to contact. Thereafter, a con- ference with the parents, the teacher, and the administrator may be in order.

“If a parent feels that he cannot accept the decision or explanation given by the administrator, his final recourse is to take the matter before the school board, with the administrator and teacher present, by submitting a written request for such a meeting to the administrator.”

A series of events involving Kristen Allen led to a dispute between the Allens and the school administrator as to how the matters should have been handled. As a result of the failure of the Aliens and the school to come to any

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agreement, the school requested by letter dated November 27, 1990 that the Al lens voluntarily withdraw their children. * * *

Sometime in September 1990, Kristen informed her mother that two male kindergarten children chased her on the playground and that one child pulled her hands behind her back while the other pulled her dress up and ran his hand across her panties. The following day, Mrs. Allen tele- phoned Michael Staub, the school administrator, and informed him of the incident. * * *

* * * After speaking with the boys, Staub was certain that the children, then age six, did not realize that they had done anything wrong. Staub told them that they should not touch children in the manner that they had touched Kristen and told them that if any such incident occurred in the fu- ture, he would paddle them.

In October, Kristen told her mother that one of the boys involved in the first incident touched her again in a similar way. * * *

Staub spoke with the young boy, who admitted that he had touched Kristen. Staub telephoned the boy’s parents and arranged a meeting with them. He described the parents as very concerned and cooperative. With their consent, Staub paddled the boy.

According to Staub, Mrs. Allen became angry and demanded to know what he had done to the young boy. Staub assured her that he was taking care of the matter, but that it was the school’s policy to discuss disciplinary matters only with the parents of the child involved. Unsatisfied with this response, the Allens met with Rev. Hlad, who had no responsibility for the day-to-day run- ning of the school, to discuss the matter. At no time did the Al lens seek a meeting with the school board as required by the school handbook.

* * *

In November, * * * Kristen told her mother that a different young boy had spit upon her as the children were leaving school. Mrs. Allen * * * con- fronted the teacher Kristen had informed of the incident on the playground. The teacher * * * explained to Mrs. Allen that the boy had a dental malfor- mation * * * and that the boy did not intentionally spit on Kristen. * * * Ac- cording to Staub, Mrs. Allen was upset and angry at the teacher’s handling of the incident and wanted to know what he was going to do about it. Staub told her he would speak with the child’s parents. * * *

At this point, Staub contacted Rev. H lad, explained that he could reach no agreement with the Al lens as to how matters involving Kristen should be handled, and felt that perhaps the withdrawal of the Allen children would be in the best interests of all parties involved. * * * After further discussion, it seemed that the parties could develop no working relationship with the school administrator regarding matters involving their children, and Rev. H lad asked the Aliens to withdraw their children prior to December 3, 1990. The Aliens were given a week to locate a new school and were told that their tuition would be refunded.

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* * *

On November 27, 1991, the Allens filed suit against Bethlehem Baptist Church, Michael Staub and Rev. Hlad for unlawfully dismissing their chil- dren from Bethlehem Baptist Christian School.

* * *

There is no question that the relationship between the parties here is a contractual one, that the terms of that relationship may be expressed in school policies and handbooks, and that those expressed terms may govern the circumstances under which a student may be expelled. Because con- tracts for private education have unique qualities, they are to be construed in a manner which leaves the school board broad discretion to meet its educa- tional and doctrinal responsibilities. Absent a clear abuse of discretion by the school in the enforcement of its policies and regulations, courts will not in- terfere in these matters.

* * *

* * * The Aliens have failed to adduce any evidence of a violated con- tractual right. They have also failed to present any facts to show a clear abuse of discretion on the part of Bethlehem Christian School, Michael Staub or Rev. Hlad.

On the contrary, the evidence suggests that the appellees acted within their proper discretion in removing the Allen children. The record demon- strates that Michael Staub, who was responsible for the day-to-day running of the school, responded promptly to the complaints by Mrs. Allen in a man- ner that he believed would yield fairness to all parties involved. The Al lens refused to agree to his disposition of the matters, bypassed the grievance pro- cedures, engaged in confrontational tactics and failed to abide by the school handbook. After Mrs. Allen called Staub unchristian and accused him of working with the devil, Staub felt that he could not work together with the Allens and that the best interest of all parties would be served by the removal of the children from the school. That the Aliens understood that their chil- dren could be removed from Bethlehem Christian School based upon their failure to comply with the admission policies and the terms of the school handbook is not disputed.

Judgment affirmed.

* * *

Note

A private Catholic high school student alleged that his constitutional rights to due process had been violated when he was expelled for violat- ing his disciplinary probation. Some of the alleged infractions leading to his expulsion included: an argument with a fellow student on the school bus, “trashing” a teacher’s house, slashing the teacher’s automobile tires,

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and making prank calls to the teacher, using and distributing steroids, and urinating in students’ lockers. In upholding the private school, a New Jer- sey court in Hernandez v. Don Bosco Preparatory High, 730 A. 2d 365 (N.J. Super. Ct. App. Div. 1999), declared that the expulsion was not “state ac- tion” within the meaning of the Fourteenth Amendment’s Due Process clause. The court stated that “Private schools are only bound to the consti- tutional requirements of due process if the private school has substantial involvement with the state.” Additionally, the court noted that the school followed its procedures by notifying the student of all charges against him and allowing him an opportunity to appeal and present a defense. The court emphasized that it would only interfere when a private organization failed to follow its own procedures.

C. Disciplinary Transfer

Transfer to a so-called alternative school, designed to meet the needs of nondisabled disruptive students, is not considered to be the equivalent of an expulsion. Appropriate due process in such an instance includes: (1) written notice to both the student and his or her parents; (2) an opportu- nity for a meeting among school authorities, parents, and the student, at which the situation may be discussed; and (3) a meeting at which evidence may be presented and witnesses examined. See Jordan v. School District of City of Erie, 583 F.2d 91 (3d Cir. 1978), and Zamora v. Pomeroy, 639 F.2d 662 (10th Cir. 1981). A lawyer need not be present at such a conference. See Madera v. Board of Education of the City of New York, 386 F.2d 778 (2d Cir. 1967).

Would courts uphold more stringent rules pertaining to conduct, dress, search, overall discipline, and freedom of expression at such alter- native schools?

III. CORPORAL PUNISHMENT

Corporal punishment may be defined as the use of such physical contact as striking, paddling, or spanking of a student by an educator. Although once widely used, it is a controversial practice that has received much debate. Proponents view it as a necessary and educationally sound disci- plinary measure. Those opposed view the practice as archaic, cruel, and inhumane, and an unjustifiable act on the part of the state.

The issue had been litigated repeatedly until the United States Supreme Court upheld the practice in Ingraham v. Wright. In its opinion, the Court addressed two major issues: whether or not the administration

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of corporal punishment represented cruel and unusual punishment in violation of the Eighth Amendment; and whether or not prior notice and an opportunity to be heard were required.

INGRAHAM v. WRIGHT Supreme Court of the United States, 1977

430 U.S. 651

MR. JUSTICE POWELL delivered the opinion of the Court. This case presents questions concerning the use of corporal punish-

ment in public schools: First, whether the paddling of students as a means of maintaining school discipline constitutes cruel and unusual punishment in violation of the Eighth Amendment; and, second, to the extent that paddling is constitutionally permissible, whether the Due Process Clause of the Four- teenth Amendment requires prior notice and an opportunity to be heard.

* * Petitioners’ evidence may be summarized briefly. In the 1970-1971

school year, many of the 237 schools in Dade County used corporal punish- ment as a means of maintaining discipline pursuant to Florida legislation and a local school board regulation. The statute then in effect authorized limited corporal punishment by negative inference, proscribing punishment which was “degrading or unduly severe” or which was inflicted without prior con- sultation with the principal or the teacher in charge of the school.* * * The reg- ulation * * * contained explicit directions and limitations. The authorized punishment consisted of paddling the recalcitrant student on the buttocks with a flat wooden paddle measuring less than two feet long, three to four inches wide, and about one-half inch thick. The normal punishment was limited to one to five “licks” or blows with the paddle and resulted in no apparent phys- ical injury to the student. School authorities viewed corporal punishment as a less drastic means of discipline than suspension or expulsion. Contrary to the procedural requirements of the statute and regulation, teachers often paddled students on their own authority without first consulting the principal.

* * * Because he was slow to respond to his teacher’s instructions, In- graham was subjected to more than 20 licks with a paddle while being held over a table in the principal’s office. The paddling was so severe that he suf- fered a hematoma requiring medical attention and keeping him out of school for several days. Andrews was paddled several times for minor infractions. On two occasions he was struck on his arms, once depriving him of the full use of his arm for a week.

* * *

The use of corporal punishment in this country as a means of disci- plining schoolchildren dates back to the colonial period. It has survived the transformation of primary and secondary education from the colonials’

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reliance on optional private arrangements to our present system of compul- sory education and dependence on public schools. Despite the general abandonment of corporal punishment as a means of punishing criminal of- fenders, the practice continues to play a role in the public education of school- children in most parts of the country. Professional and public opinion is sharply divided on the practice, and has been for more than a century. Yet we can discern no trend toward its elimination.

At common law a single principle has governed the use of corporal punishment since before the American Revolution: Teachers may impose reasonable but not excessive force to discipline a child. * * * The basic doc- trine has not changed. The prevalent rule in this country today privileges such force as a teacher or administrator “reasonably believes to be necessary for [the child’s] proper control, training, or education.” * * * To the extent that the force is excessive or unreasonable, the educator in virtually all States is subject to possible civil and criminal liability.

Although the early cases viewed the authority of the teacher as deriv- ing from the parents, the concept of parental delegation has been replaced by the viewmore consonant with compulsory education lawsthat the State itself may impose such corporal pLinishment as is reasonably necessary “for the proper education of the child and for the maintenance of group dis- cipline.” * * * All of the circumstances are to be taken into account ih deter- mining whether the punishment is reasonable in a particular case. Among the most impohant considerations are the seriousness of the offense, the atti- tude and past behavior of the child, the nature and severity of the punish- ment, the age and strength of the child, and the availability of less severe but equally effective means of discipline. * * *

Of the 23 States that have addressed the problem through legislation, 21 have authorized the moderate use of corporal punishment in public schools. Of these States only a few have elaborated on the common-law test of rea- sonableness, typically providing for approval or notification of the child’s parents, or for infliction of punishment only by the principal or in the pres- ence of an adult witness. Only two States, Massachusetts and New Jersey, have prohibited all corporal punihment in their public schools. Where the legislatures have not acted, the state courts have uniformly preserved the common-law rule permitting teachers to use reasonable force in disciplining children in their charge.

Against this background of historical and contemporary approval of reasonable corporal punishment, we turn to the constitutional questions before us.

The Eighth Amendment provides: “Excessive bail shall riot be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Bail, fines, and punishment traditionally have been associated with the crim- inal process, and by subjecting the three to parallel limitations the text of the Amendment suggests an intention to limit the power of those entrusted with

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the criminal-law function of government. An examination of the history of the Amendment and the decisions of this Court construing the proscription against cruel and unusual punishment confirms that it was designed to pro- tect those convicted of crimes. We adhere to this long-standing limitation and hold that the Eighth Amendment does not apply to the paddling of chil- dren as a means of maintaining discipline in public schools.

* * *

“[T]he question remains what process is due.” * * * Were it not for the common-law privilege permitting teachers to inflict reasonable corporal punishment on children in their care, and the availability of the traditional remedies for abuse, the case for requiring advance procedural safeguards would be strong indeed. But here we deal with a punishmentpaddling within that tradition, and the question is whether the common-law remedies are adequate to afford due process. * * * Whether in this case the common- law remedies for excessive corporal punishment constitute due process of law must turn on an analysis of the competing interests at stake, viewed against the background of “history, reason, [and] the past course of deci- sions.” The analysis requires consideration of three distinct factors: “First, the private interest that will be affected…. ; second, the risk of an erroneous de- privation of such interest … and the probable value, if any, of additional or substitute procedural safeguards; and finally, the [state] interest, including the function involved and the fiscal and administrative burdens that the ad- ditional or substitute procedural requirement would entail.” * * *

* * * Florida has continued to recognize, and indeed has strengthened by

statute, the common-law right of a child not to be subjected to excessive cor- poral punishment in school. Under Florida law the teacher and principal of the school decide in the first instance whether corporal punishment is rea- sonably necessary under the circumstances in order to discipline a child who has misbehaved. But they must exercise prudence and restraint. For Florida has preserved the traditional judicial proceedings for determining whether the punishment was justified. If the punishment inflicted is later found to have been excessivenot reasonably believed at the time to be necessary for the child’s discipline or trainingthe school authorities inflict- ing it may be held liable in damages to the child and, if malice is shown, they may be subject to criminal penalties.

* * *

It still may be argued, of course, that the child’s liberty interest would be better protected if the common-law remedies were supplemented by the administrative safeguards of prior notice and a hearing. We have found fre- quently that some kind of prior hearing is necessary to guard against arbitrary impositions on interests protected by the Fourteenth Amendment. * * * But where the State has preserved what “has always been the law of the land,” * * * the case for administrative safeguards is significantly less compelling.

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* * * But even if the need for advance procedural safeguards were clear, the

question would remain whether the incremental benefit could justify the cost. Acceptance of petitioners’ claims would work a transformation in the law governing corporal punishment in Florida and most other States. Given the impracticability of formulating a rule of procedural due process that varies with the severity of the particular imposition, the prior hearing petitioners seek would have to precede any paddling, however moderate or trivial.

Such a universal constitutional requirement would significantly burden the use of corporal punishment as a disciplinary measure. Hearingseven informal hearingsrequire time, personnel, and a diversion of attention from normal school pursuits. School authorities may well choose to abandon corporal punishment rather than incur the burdens of complying with the procedural requirements. Teachers, properly concerned with maintaining authority in the classroom, may well prefer to rely on other disciplinary measureswhich they may view as less effectiverather than confront the possible disruption that prior notice and a hearing may entail. Paradoxically, such an alteration of disciplinary-policy is most likely to occur in the ordi- nary case where the contemplated punishment is well within the common- law privilege.

Elimination or curtailment of corporal punishment would be wel- comed by many as a societal advance. But when such a policy choice may result from this Court’s determination of an asserted right to due process, rather than from the normal processes of community debate and legislative action, the societal costs cannot be dismissed as insubstantial. We are re- viewing here a legislative judgment, rooted in history and reaffirmed in the laws of many States, that corporal punishment serves important educational interests. This judgment must be viewed in light of the disciplinary problems commonplace in the schools. * * *

* * * In view of the low incidence of abuse, the openness of our schools, and the common-law safeguards that already exist, the risk of error that may result in violation of a schoolchild’s substantive rights can only be regarded as minimal. Imposing additional administrative safeguards as a constitutional requirement might reduce that risk marginally, but would also entail an intrusion into an area of primary educational responsibility. We conclude that the Due Process Clause does not require notice and a hearing prior to the imposition of corporal punishment in the public schools, as that practice is authorized and limited by the common law.

Petitioners cannot prevail on either of the theories before us in this case. The Eighth Amendment’s prohibition against cruel and unusual punishment is inapplicable to school paddlings, and the Fourteenth Amendment’s re- quirement of procedural due process is satisfied by Florida’s preservation of common-law constraints and remedies. We therefore agree with the Court of Appeals that petitioners’ evidence affords no basis for injunctive relief, and

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that petitioners cannot recover damages on the basis of any Eighth Amend- ment or procedural due process violation.

Affirmed.

Notes and Questions

Ingraham was a five-to-four decision. Justice Powell, who wrote the In- graham decision, brought a background of public school experience to the Court. He was chairman of the Richmond, Virginia, School Board during the time public schools were being desegregated in the 1950s, and he headed the Virginia State Board of Education. Although a Democrat, he was nominated to the Court by President Nixon and took office in 1972. He retired in 1987 and was replaced by Justice Anthony Kennedy in 1988.

According to Ingraham, in the absence of legislation to the contrary, teachers may inflict corporal punishment. More than half of the states do not allow the practice of corporal punishment. Legislation or state regula- tion have prohibited the practice in Alaska, California, Connecticut, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New York, North Dakota, Oregon, Utah, Vermont, Virginia, Washington, and Wiscon- sin. All local school boards in Rhode Island have done likewise. In some instances, local school boards in states that allow corporal punishment, have banned or curtailed the practice.

Is it possible to reconcile the majority opinion in Ingraham with the majority opinion in Goss?

Should the Ingraham decision have cited empirical data that estab- lish the effectiveness of corporal punishment? Are such data necessary to support the Court’s ruling?

A decision discussing the doctrine of in loco parentis concluded that the application of corporal punishment to public school children by means of a paddle, whip, sflck, or other mechanical devices could not be permit- ted under this doctrine; however, the doctrine did not prohibit spanking by hand, physically seizing and removing unruly students from a class- room, or using physical force to restrain students from fighting or engag- ing in destructive or illegal acts. See Smith v. West Virginia State Board of Education, 295 S.E.2d 680 (W.Va. 1982).

The Court’s decision in Ingraham did not put the issue to rest. A fed- eral appellate court, in Garcia v. Miera, 817 F.2d 650 (10th Cir. 1987), cert. de- nied, 485 U.S. 959 (1988), has held that excessive force used for corporal punishment is a violation of substantive due process. The court stated:

Although Ingraham makes clear that ordinary corporal punishment violates no substantive due rocess rights of school children, by acknowledging that

Students and the Law 1 43

corporal punishment implicates a fundamental liberty interest protected by the due process clause, we believe that, at some degree of excessiveness or cruelty, the meting out of such punishment violates the substantive due process rights of the pupil. (p. 654)

Additionally, the court revealed that three categories of corporal punish- ment exist:

Punishments that do not exceed the traditional common law standard of rea- sonableness are not actionable; punishments that exceed the common law standard without adequate state remedies violate procedural due process rights; and finally, punishments that are so grossly excessive as to be shock- ing to the conscience violate substantive due process rights, without regard to the adequacy of state remedies. (p. 656)

Tying a child to a chair for a full day and part of the next, which was alleged to be an instructional technique, was also held to be a violation of substantive due process. See Jefferson v. Ysleta Independent School District, 817 F.2d 303 (5th Cir. 1987). In both Garcia and Jefferson, the courts ruled that a claim for damages had arisen under 42 U.S.C. § 1983.

As mentioned in Ingraham, a remedy for what is perceived as exces- sive corporal punishment is a civil or criminal lawsuit. In one such criminal case, a private school principal was sentenced to twelve months probation, 150 hours of community service and a $500 fine for having inflicted “ex- treme pain” during the administration of corporal punishment consisting of fifty to sixty swats. In that state, to sustain a simple assault conviction, it was necessary to prove that a teacher, principal, parent, or person otherwise en- trusted with the care or supervision of a minor for a special purpose, in- flicted not merely substantial pain, but rather extreme pain as a result of administering corporal punishment. Such a higher standard of proof is de- signed to shield this group of individuals from simple assault liability in in- stances where the degree and manner of force used and the attendant justifications are neither excessive nor unreasonable under the circum- stances. See Commonwealth v. Douglass, 588 A.2d 53 (Pa. Super. Ct. 1991).

Are you familiar with the statutory provisions, if any, in your state pertaining to corporal punishment? Are practices in your school system regarding the administration of corporal punishment in conformance with state and local provisions? Are there statutory provisions designed to pro- tect teachers and administrators from suits resulting from their adminis- tration of corporal punishment?

IV. SEARCH OF STUDENTS AND LOCKERS

The desire to have the Fourth Amendment included in the Bill of Rights grew out of British practices prior to the Revolutionary War. Early Ameri- cans wanted assurance that their homes would not be invaded without

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just cause. Many held that without this protection, government authorities could intimidate the citizenry by pursuing “fishing expeditions” such as conducting searches of homes of politically nonconforming citizens until something incriminating was found. With this fear in mind, the Fourth Amendment was included in the Bill of Rights, to protect the individual from possible harassment by an unresponsive government. Originally, the protection of the Fourth Amendment applied only to the federal govern- ment, as was the case with the other first eight amendments of the Consti- tution; however, as a result of decisions involving the Fourteenth Amendment, this protection for the individual is now also available against the state.

Public school officials may be placed in the position of searching a student because of a suspicion that the student has stolen an article or money or has something illegal in his or her possession, such as drugs or weapons. Over the years, several important Fourth Amendment issues have emerged as courts attempted to grapple with cases involving student search. Foremost among these issues was establishing the proper balance between an individual student’s right to Fourth Amendment protection from unreasonable search and the duty of school officials to provide all students with a safe and secure school environment. Other more specific legal questions have also been addressed by the courts. These included whether or not students in the school setting had the protection of the Fourth Amendment, and if so, whether their protection equalled that of adults or did students have a lesser protection; determining if school offi- cials were to be considered government officials, because the Fourth Amendment applies only when a government official acting under the color of the state conducts the search; the degree of suspicion a school offi- cial must have to conduct an individualized search (police, for instance, must have probable cause to search someone, a considerably higher stan- dard than reasonable suspicion); and whether a search warrant is required in the school setting. Courts adjudicated these difficult legal questions (al- though not always similarly) as they increasingly dealt with suchsearch- related issues as the constitutionality of searching a student suspected of having drugs on his or her person, the use of drug-detecting dogs, mass search of the entire student body, random drug testing of high school ath- letes, random searches with handheld metal-detector wands, and strip searches. In 1985 the United States Supreme Court addressed one of these issues in New Jersey v. T.L.O., and in its decision provided public school educators with guidance regarding the search of individual students.

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A. Student Search

NEW JERSEY v. T.L.O. Supreme Court of the United States, 1985

469 U.S. 325

JUSTICE WHITE delivered the opinion of the Court. We granted certiorari in this case to examine the appropriateness of the

exclusionary rule as a remedy for searches carried out in violation of the Fourth Amendment by public school authorities. Our consideration of the proper application of the Fourth Amendment to the public schools, however, has led us to conclude that the search that gave rise to the case now before us did not violate the Fourth Amendment. Accordingly, we here address only the questions of the proper standard for assessing the legality of searches conducted by public school officials and the application of that standard to the facts of this case.

On March 7, 1980, a teacher at Piscataway High School in Middlesex County, N.J., discovered two girls smoking in a lavatory. One of the two girls was the respondent T.L.O., who at that time was a 14-year-old high school freshman. Because smoking in the lavatory was a violation of a school rule, the teacher took the two girls to the Principal’s office, where they met with Assistant Vice Principal Theodore Choplick. In response to questioning by Mr. Choplick, T.L.O.’s companion admitted that she had violated the rule. T.L.O., however, denied that she had been smoking in the lavatory and claimed that she did not smoke at all.

Mr. Choplick asked T.L.O. to come into his private office and demanded to see her purse. Opening the purse, he found a pack of cigarettes, which he removed from the purse and held before T.L.O. as he accused her of having lied to him. As he reached into the purse for the cigarettes, Mr. Choplick also noticed a package of cigarette rolling papers. In his experience, possession of rolling papers by high school students was closely associated with the use of marijuana. Suspecting that a closer examination of the purse might yield further evidence of drug use, Mr. Choplick proceeded to search the purse thoroughly. The search revealed a small amount of marijuana, a pipe, a number of empty plastic bags, a substantial quantity of money in one dollar bills, an index card that appeared to be a list of students who owed T.L.O. money, and two letters that implicated T.L.O. in marijuana dealing.

Mr. Choplick notified T.L.O.’s mother and the police, and turned the evidence of drug dealing over to the police. At the request of the police, T.L.O.’s mother took her daughter to police headquarters, where T.L.O. con- fessed that she had been selling marijuana at the high school. On the basis of the confession and the evidence seized by Mr. Choplick, the State brought delinquency charges against T.L.O. in the Juvenile and Domestic Relations Court of Middlesex County. Contending that Mr. Choplick’s search of her.

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purse violated the Fourth Amendment, T.L.O. moved to suppress the evi- dence found in her purse as well as her confession, which, she argued, was tainted by the allegedly unlawful search.

In determining whether the search at issue in this case violated the Fourth Amendment, we are faced initially with the question whether that Amendment’s prohibition on unreasonable searches and seizures applies to searches conducted by public school officials. We hold that it does.

It is now beyond dispute that “the Federal Constitution, by virtue of the Fourteenth Amendment, prohibits unreasonable searches and seizures by state officers.” * * * Equally indisputable is the proposition that the Four- teenth Amendment protects the rights of students against encroachment by public school officials:

“The Fourteenth Amendment, as now applied to the States, protects the citizen against the State itself and all of its creaturesBoards of Education not ex- cepted. These have, of course, delicate, and highly discretionary functions, but none that they may not perform within the limits of the Bill of Rights. That they are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our gov- ernment as mere platitudes.” West Virginia State Board of Education v. Barnette 319 U.S. 624, 637 (1943).

These two propositionsthat the Fourth Amendment applies to the States through the Fourteenth Amendment, and that the actions of public school officials are subject to the limits placed on state action by the Four- teenth Amendmentmight appear sufficient to answer the suggestion that the Fourth Amendment does not proscribe unreasonable searches by school officials. On reargument, however, the State of New Jersey has argued that the history of the Fourth Amendment indicates that the Amendment was in- tended to regulate only searches and seizures carried out by law enforce- ment officers; accordingly, although public school officials are concededly state agents for purposes of the Fourteenth Amendment, the Fourth Amend- ment creates no rights enforceable against them.

It may well be true that the evil toward which the Fourth Amendment was primarily directed was the resurrection of the pre-Revolutionary practice of using general warrants or “writs of assistance” to authorize searches for contraband by officers of the Crown. * * * But this Court has never limited the Amendment’s prohibition on unreasonable searches and seizures to op- erations conducted by the police. Rather, the Court has long spoken of the Fourth Amendment’s strictures as restraints imposed upon “governmental ac- tion”that is, “upon the activities of sovereign authority.” * * * Accordingly, we have held the Fourth Amendment applicable to the activities of civil as well as criminal authorities: building inspectors, * * * and even firemen en-

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tering privately owned premises to battle a fire * * * are all subject to the re-

straints imposed by the Fourth Amendment. As we observed * * * [t]he basic

purpose of this Amendment, as recognized in countless decisions of this Court, is to safeguard the privacy and security of Individuals against arbitrary

invasions by governmental officials.”

Notwithstanding the general applicability of the Fourth Amendment to the activities of civil authorities, a few courts have concluded that school of- ficials are exempt from the dictates of the Fourth Amendment by virtue of the

special nature of their authority over schoolchildren. * * * Teachers and school administrators, it is said, act in loco parentis in their dealings with stu-

dents: Their authority is that of the parent, not the State, and is therefore not

subject to the limits.of the Fourth Amendment. Such reasoning is in tension with contemporary reality and the teach-

ings of this Court. * * * Today’s public school officials do not merely exercise authority voluntarily conferred on them by individual parents; rather, they

act in furtherance of publicly mandated educational and disciplinary policies. * * * In carrying out searches and other disciplinary functions pursuant to such policies, school officials act as representatives of the State, not merely

as surrogates for the parents, and they cannot claim the parents’ immunity from the strictures of the Fourth Amendment.

* * Although this Court may take notice of the difficulty of maintaining dis-

cipline in the public schools today, the situation is not so dire that students in the schools may claim no legitimate expectations of privacy. * * *

Nor does the State’s suggestion that children have no legitimate need

to bring personal property into the schools seem well anchored in reality. Students at a minimum must bring to school not only the suppliesneeded for

their studies, but also keys, money, and the necessaries of personal hygiene

and grooming. In addition, students may carry on their persons or in purses

or wallets such nondisruptive yet highly personal items as photographs, let- ters, and diaries. Finally, students may have perfectly legitimate reasons to

carry with them articles of property needed in connection with extracurricu- lar or recreational activities. In short, schoolchildren may find it necessary to carry with them a variety of legitimate, noncontraband items, and there is no

reason to conclude that they have necessarily waived all rights to privacy in

such items merely by bringing them onto school grounds. Against the child’s interest in privacy must be set the substantial inter-

est of teachers and administrators in maintaining discipline in the classroom and on school grounds. Maintaining order in the classroom has never been

easy, but in recent years, school disorder has often taken particularly ugly forms: drug use and violent crime in the schools have become major social

problems. * * *

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* * *

How, then, should we strike the balance between the schoolchild’s le- gitimate expectations of privacy and the school’s equally legitimate need to maintain an environment in which learning can take place? It is evident that the school setting requires some easing of the restrictions to which searches by public authorities are ordinarily subject. The warrant requirement, in par- ticular, is unsuited to the school environment: Requiring a teacher to obtain a warrant before searching a child suspected of an infraction of school rules (or of the criminal law) would unduly interfere with the maintenance of the swift and informal disciplinary procedures needed in the schools. Just as we have in other cases dispensed with the warrant requirement when “the bur- den of obtaining a warrant is likely to frustrate the governmental purpose be- hind the search,” * * * we hold today that school officials need not obtain a warrant before searching a student who is under their authority.

The school setting also requires some modification of the level of sus- picion of illicit activity needed to justify a search. Ordinarily, a searcheven one that may permissibly be carried out without a warrantmust be based upon “probable cause” to believe that a violation of the law has occurred. * * * However, “probable cause” is not an irreducible requirement ofa valid search. The fundamental command of the Fourth Amendment is that searches and seizures be reasonable, and although “both the concept of probable cause and the requirement of a warrant bear on the reasonableness of a search, . . . in certain limited circumstances neither is required.” * * * Thus, we have in a number of cases recognized the legality of searches and seizures based on suspicions that, although “reasonable,” do not rise to the level of probable cause. * * * Where a careful balancing of governmental and private interests suggests that the public interest is best served by a Fourth Amendment standard of reasonableness that stops short of probable cause, we have not hesitated to adopt such a standard.

We join the majority of courts that have examined this issue in con- cluding that the accommodation of the privacy interests of schoolchildren with the substantial need of teachers and administrators for freedom to main- tain order in the schools does not require strict adherence to the requirement that searches be based on probable cause to believe that the subject of the search has violated or is violating the law. Rather, the legality of a search of a student should depend simply on the reasonableness, under all the circum- stances, of the search. Determining the reasonableness of any search in- volves a twofold inquiry: first, one must consider “whether the . . . action was justified at its inception,” * * * second, one must determine whether the search as actually conducted “was reasonably related in scope to the cir- cumstances which justified the interference in the first place.” Under ordi- nary circumstances, a search of a student by a teacher or other school official will be “justified at its inception” when there are reasonable grounds for sus-

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pecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school. Such a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.

This standard will, we trust, neither unduly burden the efforts of school authorities to maintain order in their schools nor authorize unrestrained in- trusions upon the privacy of schoolchildren. By focusing attention on the question of reasonableness, the standard will spare teachers and school ad- ministrators the necessity of schooling themselves in the niceties of probable cause and permit them to regulate their conduct according to the dictates of reason and common sense. At the same time, the reasonableness standard should ensure that the interests of students will be invaded no more than is necessary to achieve the legitimate end of preserving order in the schools.

There remains the question of the legality of the search in this case. * * *

* * * It cannot be said that Mr. Chop lick acted unreasonably when he examined T.L.O.’s purse to see if it contained cigarettes.

Our conclusions that Mr. Chop lick’s decisions to open T.L.O.’s purse was reasonable brings us to the question of the further search for marijuana once the pack of cigarettes was located. The suspicion upon which the search for marijuana was founded was provided when Mr. Chop lick ob- served a package of rolling papers in the purse as he removed the pack of cigarettes. Although T.L.O. does not dispute the reasonableness of Mr. Choplick’s belief that the rolling papers indicated the presence of marijuana, she does contend that the scope of the search Mr. Chop lick conducted ex- ceeded permissible bounds when he seized and read certain letters that im- plicated T.L.O. in drug dealing. This argument, too, is unpersuasive. The discovery of the rolling papers concededly gave rise to a reasonable suspi- cion that T.L.O. was carrying marijuana as well as cigarettes in her purse. This suspicion justified further exploration of T.L.O.’s purse, which turned up more evidence of drug-related activities: a pipe, a number of plastic bags of the type commonly used to store marijuana, a small quantity of marijuana, and a fairly substantial amount of money. Under these circumstances, it was not unreasonable to extend the search to a separate zippered compartment of the purse; and when a search of that compartment revealed an index card containing a list of “people who owe me money” as well as two letters, the inference that T.L.O. was involved in marijuana trafficking was substantial enough to justify Mr. Choplick in examining the letters to determine whether they contained any further evidence. In short, we cannot conclude that the search for marijuana was unreasonable in any respect.

Because the search resulting in the discovery of the evidence of mari- juana dealing by T.L.O. was reasonable, the New Jersey Supreme Court’s

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decision to exclude that evidence from T.L.O.’s juvenile delinquency pro- ceedings on Fourth Amendment grounds was erroneous. Accordingly, the judgment of the Supreme Court of New Jersey is

Reversed.

Notes and Questions

In its decision, the T.L.O. Court established a two-prong test to determine the reasonableness of a search. First, a court must determine whether the search was “justified at its inception.” Second, whether the search, “as ac- tually conducted, was reasonably related in scope to the circumstances which justified the interference in the first place.” In striking the balance between a student’s legitimate expectations of privacy and the school’s equally legitimate need to maintain an appropriate learning environment, this decision clearly demonstrates the Court’s resolve to foster a drug-free school. There is little doubt that this decision has reduced the fear many school authorities had about possibly violating a student’s Fourth Amend- ment rights.

Having high school students blow in the face of a dance monitor so he could smell their breath was held to be a reasonable search, especially because the students had been in the company of another student who had been under the influence of alcohol. See Martinez v. School District No. 60, 852 P.2d 1275 (Colo. Ct. App. 1992).

A federal appellate court addressed the issue of a school official’s search of a student’s hotel room during a spring break trip, 5,000 miles from home. Citing T.L.O., the court held that the search required extraor- dinary justification, owing to the fact that the student had paid for the room and that the incident occurred in less than a fully educational con- text. Nevertheless, the court found such a justification because school offi- cials were charged with supervisory duties in an environment requiring unusual vigilance. Relying also on the doctrine of in loco parentis, the court stated that many parents would be reluctant to allow their children on such trips if school officials did not have sufficient authorityto supervise. See Webb v. McCullough, 828 F.2d 1151 (6th Cir. 1987).

B. Search for Drugs and Weapons

The prevalence of drugs and weapons in the public schools has resulted in school administrators often employing extraordinary means to control this problem. In addition to increased search of suspected students, adminis- trators have resorted to patting down students, drug-detecting dogs, drug

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testing as a condition for attending school or participating in extracurricu- lar activities, use of metal-detector wands, and not allowing pagers in the schools in order to combat drug use and selling.

Requiring random urinalysis drug tests as a condition for participa- tion in interscholastic athletics was upheld in a six-to-three decision by the United States Supreme Court in Vernonia School District 47J v. Acton, 515 U.S. 646 (1995). Evidence in this case revealed that the drug testing was in- stituted because the school had experienced a sharp increase in discipli- nary problems and drug use, rudeness during class increased, outbursts of profane language became common, and students boasted that the school could do nothing about their attraction to the drug culture; not only were student athletes drug users but they were the leaders of the drug culture; and coaches reported an increase in the number and severity of sports- related injuries. In its decision, the Court held that “students within the school environment have a lesser expectation of privacy than members of the population generally” (citing T.L.0.) and that student athletes have even less legitimate privacy expectations than nonathletes. The Court noted that under the drug detection program, the collection of urine, its testing, disclosure of results, and request for medical information regarding med- ication information were relatively unobtrusive and well-thought-out. Lastly, the Court contended that the program served an important gov- ernment interest by deterring drug use by students. The Court concluded that the search was reasonable, and hence constitutional, in the light of “the decreased expectation of privacy, the relative unobtrusiveness of the search, and the severity of the need met by the search.” Dissenters in the decision argued forcefully that the majority decision, unfortunately, over- looks history and precedent, which requires individualized suspicion in Fourth Amendment cases.

Two decisions of the Court of Appeals for the Seventh Circuit reveal interesting post-Acton issues. In Todd v. Rush County Schools, 133 F.3d 984 (7th Cir. 1998). cert. denied, 525 U.S. 824 (1998), the court wrestled with the issue of random and suspicionless drug testing, with parental consent, of all students wishing to participate in extracurricular activities or driving a car to and from school. The list of extracurricular activities included ath- letic teams, Student Council, foreign language clubs, Fellowship of Chris- tian Athletes, Future Farmers of America Officers, and the Library Club. In upholding the drug testing program, the court held that evidence that some students used drugs, tobacco, or alcohol was sufficient justification and outweighed any diminished expectations of public school students’ privacy. In the other decision, Willis v. Anderson Community School Corpora- tion, 158 F.3d 415 (7th Cir. 1998), cert. denied, 526 U.S. 1019 (1999), the court addressed the issue of a student’s refusal to take a drug test after his return to school after being suspended for fighting. In this instance, drug testing was required for students possessing or using tobacco products, suspended

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for three days or more for fighting, being habitually truant, or violating any rule that requires at least a three-day suspension. In holding the policy unconstitutional, the court declared that the causal nexus between illegal substances and violent behavior was not strong enough to create a reason- able suspicion warranting a search such as drug testing. The Willis court distinguished its decision from Acton both on the basis of the voluntary participation of the athletes in Acton and that athletes in general have less expectation of privacy.

Again citing Acton, a federal court of appeals upheld a generalized search in which all male students from grades six to twelve were searched for dangerous weapons by emptying their pockets and being patted down if a metal detector sounded. In this case, there was a concern on the part of school officials that a knife or other cutting weapon was on the school grounds because there were fresh knife cuts on the seats of a school bus. The appellate court reasoned that although there was no basis for suspect- ing any particular student, the possibility of a dangerous weapon at school was a risk to student safety and school discipline that no “reasonable guardian and tutor” (citing Acton) could ignore. See Thompson v. Carthage School District, 87 F.3d 979 (8th Cir. 1996).

Because private schools do not have the same Fourth Amendment re- strictions as public schools, some have begun testing hair to detect illicit drug use. Such testing is based on the premise that drugs ingested in the body are deposited in hair follicles roughly in the proportion to the amount taken. Because traces remain in the hair, such tests also reveal how long the drugs have been used. To date, standards for such tests have not been es- tablished by the federal government, and some studies have shown that drug traces remain in black hair up to 50 times longer than in blond hair.

Several states have prohibited students from carrying telephone pagers in public schools because of their relationship to illegal drug sales. See, for instance, Rowell v. State, 666 So.2d 830 (Ala. 1995).

C. Intrusive Search

In their zeal to locate stolen money, drugs, or weapons, educators occa- sionally engage in intrusive searches commonly referred to as strip searches. Historically, this type of search has most often been used with younger children; however, with the advent of drugs and weapons in the school it has increasingly been used with older students. In this type of search, students may be asked to strip down to their underpants, partially disrobe, remove all their clothes, or be patted down. Courts take several factors into consideration when determining reasonableness in intrusive search cases. These include the student’s age, the student’s record and dis- ciplinary history, the seriousness and prevalence of the problem, and the exigency requiring an immediate warrantless search. In recent years, courts have increasingly, u.pheld teachers who had engaged in strip

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searches, especially if it involved younger students. Generally, however, individualized suspicion is required to conduct an intrusive search; there- fore, teachers should refrain from conducting blanket intrusive searches when money or articles of value are involved.

A strip search of two eight-year-old female second graders for al- legedly stealing $7.00 was upheld in Jenkins v. Talladega City Board of Edu- cation, 115 F.3d 821 (11th Cir. 1997), cert. denied 522 U.S. 966 (1997). In this case, based on a student’s accusation of the theft, a series of searches took place that did not produce the money. These included initially searching Jenkins’s backpack, asking Jenkins and another accused student to remove their shoes and socks, taking the girls to the girls’ restroom and ordering them to enter the bathroom stalls and “come back with their underpants down to their ankles,” and subsequently taking them to the restroom a second time and asking them to remove their dresses (which left one girl in a slip and the other in only her underpants) in a final attempt to retrieve the money. In its holding, the court relying extensively on T.L.O., asserted that these searches were reasonably related to the objective of recovering the stolen $7.00 and not “excessively intrusive in light of the age and sex of the students and the nature of the infraction.” The court contended that school officials should consider the stealing of $7.00 in an elementary school a serious concern, female students were searched by female teach- ers, the eight-year-old students were prepubescent, and teachers fre- quently assist students of that age in the bathroom.

A search of a sixteen-year-old male student in a behavioral disorder program who was suspected of “crotching” drugs was held to be reason- able. The court contended that there were several factors influencing its decision, in addition to the unusual bulge in the student’s crotch area. These included allegations of several recent prior incidents such as dealing in drugs, testing positive for marijuana, possession of drugs, having “crotched” drugs during a police raid at his mother ‘s house, failing a uri- nalysis for cocaine, unsuccessful completion of a drug rehabilitation pro- gram, and a report by a bus driver that there was a smell of marijuanawhere the student had sat on the bus. See Cornfield v. Consolidated High School Dis- trict No. 230, 991 F.2d 1316 (7th Cir. 1993).

Another strip search was upheld in Williams v. Ellington, 936 F.2d 881 (6th Cir. 1991). In this instance, a female student suspected of possessing a drug was asked by a female assistant principal, and witnessed by a female secretary, to empty her pockets, remove her T-shirt, and lower her blue jeans to her knees. The student alleged that the assistant principal pulled on the elastic of her undergarments to see if anything would fall out. No evidence of drugs was found. In its decision, the court emphasized that school officials need discretionary authority to function with efficiency and speed in certain situations, and their decisions should not be ques- tioned with the benefit of hindsight as that would undermine the author- ity necessary to ensure the safety and order of our schools.

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May school officials conduct a schoolwide search for drugs by using drug-detecting dogs and then engage in a strip search of suspected stu- dents? A federal appellate court has held that sniffing by a dog was not a search and therefore not protected by the Fourth Amendment; requesting students to empty their pockets and purses did not violate the Fourth Amendment; but conducting a nude search of a student as a result of the dog’s alert was unreasonable. In entitling the student to damages, the court contended that a nude search was not only unconstitutional but also contrary to common decency. See Doe v. Renfrow, 635 F.2d 582 (7th Cir. 1980), cert. denied, 451 U.S. 1022 (1981).

Parents often allege a Fourth Amendment violation in suspected child-abuse cases, claiming that school personnel should not have ques- tioned or examined a student’s person to determine possible child abuse. The court in Picarella v. Terrizzi, 893 F. Supp. 1292 (Pa. 1995), concluded that the Fourth Amendment had not been violated as a result of school person- nel questioning a student about suspected abuse. The court reasoned that under Pennsylvania’s Child Protective Services Law, enumerated persons such as teachers and administrators were required to determine if there was “reason to believe” that a student had been abused.

In another case involving suspected child abuse, school officials were given qualified immunity from civil rights claims by parents for removing a student from her classroom and questioning and physically examining her to determine whether she had been physically abused. The court rea- soned that minor schoolchildren suspected of being victims of child abuse did not have a clearly established right to be free from visual examination of unexposed parts of their bodies to determine such suspected abuse. See Landstrom v. Illinois Department of Children and Family Services, 892 F.2d 670 (7th Cir. 1990). In this case, the first grader removed her dress and her underpants and her buttocks were examined by the school nurse in the presence of the child’s teacher, a school psychologist, a social worker, and the principal. Several states have enacted laws that grant a limited immu- nity to those officials who have been made legally responsible for investi- gating and reporting child abuse. Educators should be aware of their state’s statutes dealing with reporting child abuse.

D. Locker Search

Courts have tended to allow school officials to search a student’s locker without a warrant and without the student’s permission, reasoning that schools retain ultimate control over lockers and act in loco parentis. This issue was addressed three decades ago in Kansas v. Stein, 203 Kan. 638, 456 P.2d 1 (1969), cert. denied, 397 U.S. 947 (1970), which discussed the public nature of student lockers. The court held that school authorities must pro-

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tect both the school’s educational functions and the students’ welfare and may, therefore, inspect lockers to prevent their illicit use.

Courts have continued to uphold locker searches by school authori- ties, usually applying a standard that declares students to have legitimate expectations of privacy in their lockers. However, the expectation is not absolute and must be balanced against the school’s need to maintain order and discipline. In a case involving a gun and cocaine, a random search of a school locker was upheld. In its decision, the court stressed that there was an environment of fear and tension at the school due to gun-related activities and a written policy under which the school retained ownership and control of school lockers. Having such a policy in place, the court rea- soned, resulted in the student having no reasonable expectation of privacy in his locker. See Isiah B. v. State, 500 N.W.2d 637 (Wis. 1993), cert. denied, 510 U.S. 884 (1993). Also see Commonwealth v. Cass, 709 A.2d 350 (Pa. 1998), cert. denied, 525 U.S. 833 (1998), where the reasonableness of using drug- detecting dogs for the search of students’ lockers was upheld.

V. STUDENT APPEARANCE

There have been many challenges to dress and grooming regulations over the years. In the earliest cases, essentially beginning in the 1960s, students and their parents often questioned rules, particularly those pertaining to grooming, which they believed to be unfair or anachronistic. In their suits, parents commonly alleged that they, not schools, were responsible for the appearance of their children and that the contested rules violated their pri- vacy rights. They contended that school authorities were warranted in imposing only those standards necessary for health, safety, or an educa- tionally sound program. School authorities, on the other hand, contended that they possessed the discretion to determine which policies aided in maintaining order and discipline.

There has been a markedly reduced number of dress and grooming suits in recent times, perhaps not only due to a dissipation of the environ- ment that drove them in the 1960s, but also because adequate school poli- cies were crafted and school officials learned to deal appropriately with these issues when they arose. Additionally, many school officials discov- ered that attempting to enforce dress and grooming codes was a losing battle, because students often found ways, subtle or otherwise, to assert their individual identities through their hairstyles and what they wore.

In recent cases, school officials often contend that dress and groom- ing violations are gang related and, therefore, pose a serious threat to safety in the school. In addition to the privacy issue, allegations in these re- cent cases may include violations of the First Amendment, gender dis- crimination, and racial discrimination. Despite the continuing controversy

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over the years surrounding the issue and the judiciary’s frequent involve- ment, the Supreme Court has not ruled substantively in a dress and grooming case.

A. Dress

The prevalence of gangs, hate groups, and those opposed to “political cor- rectness” in public schools poses serious problems for school officials, be- cause the presence of such groups on a campus may contribute to substantial disruption and threats to safety. Members of such groups often wear clothing or symbols signifying their group membership. Because such dress may be in violation of dress and grooming codes, when litigated, given all the circumstances surrounding the school’s environment, courts must balance the First Amendment rights of students to express themselves against the legitimate right of school authorities to maintain a safe and disruption-free environment. Examples of controversial student expres- sion that may involve First Amendment protection include T-shirts de- picting violence, drugs (e.g., marijuana leafs), racial epithets, or characters such as Bart Simpson; ripped, baggy, or saggy pants or jeans; sneakers with lights; colored bandannas, baseball or other hats; words shaved into scalps, brightly colored hair, distinctive haircuts or hairstyles, or ponytails for males; exposed underwear; Malcolm X symbols; Walkmans, cellular phones, or beepers; backpacks; tattoos, unusual-colored lipsticks, pierced noses, or earrings; and decorative dental caps. Courts generally contend that such “expression” does not have protection under the First Amend- ment when there is violence in the community or school such as intimida- tion of students and faculty, shootings or knifings, rampant drug use, or racial turmoil that is related to gang or hate-group activity.

A dress code prohibiting the wearing of clothing with writing, pic- tures, or any insignia that identified any professional or college sports team was challenged on the basis of its violating students’ free speech rights. A court agreed that the code violated the rights of elementary and middle school students but not those of high school students. Evidence revealed that there was gang presence and intimidation of students and faculty at the high school, associated with the sports-oriented clothing, that could lead to disruption and disturbance of school activities. The court declared that the justification for curtailing the students’ rights did not “demand a certainty that disruption will occur, but only the existence of facts which might reasonably lead school officials to forecast substantial disruption.” See Jeglin v. San Jacinto Unified School District, 827 F. Supp. 1459 (Cal. 1993). Revealing the lengths students will go to make a statement, school author- ities at a Massachusetts high school noticed that white students wore Notre Dame caps and black students wore University of Nevada at Las Vegas caps. In time, the authorities learned that the ND caps worn by some

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white students were meant to send the message Niggers Die. Some black students retaliated by wearing the UNLV caps, which were meant to sig- nify Us Niggers Love Violence.

Not being allowed to wear a Confederate flag jacket to school was upheld as not violating of a student’s freedom of expression in Phillips v. Anderson County School District, 987 F. Supp. 488 (S.C. 1997). The court based its decision on prior incidents of racial tension and unrest and rea- soned that the wearing of such a jacket would likely result in substantial disruption of the school’s environment. Additionally, the court asserted, the student and his parents had notice of the policy as he had been asked not to wear the jacket on previous occasions.

A policy prohibiting the wearing or display of any gang symbol, any act or speech showing gang affiliation, and any conduct in furtherance of gang activity was also upheld by a federal district court. The court related that in this instance the wearing of earrings by males generally connoted gang membership and did not have First Amendment protection. An equal protection argument was rejected by the court’s stating that “while girls may be gang members they symbolize their affiliation in other ways ways that are prohibited by school policy.” See Olesen v. Board of Education, 676 F. Supp. 820 (Ill. 1987). Although not involving the issue of gang mem- bership, prohibiting a fourth-grade male from wearing an earring was up- held in Hines v. Caston School Corporation, 651 N.E.2d 330 (Ind. App. 1995). The court held that enforcing community standards of dress to instill dis- cipline is a legitimate educational function and prohibiting males from wearing earrings did not violate their equal protection.

In response to a gang problem, a dress code was adopted that pro- hibited the wearing of “sagging” pants. A black student who was sus- pended for wearing such pants alleged that his First Amendment rights of speech, expression, and association were violated because this attire was part of a style known as “hip hop,” whose roots were African American. In rejecting the student’s contention, the court asserted that a two-part test must be met for nonverbal conduct to be protected under the First Amend- ment. First, there must be an intent to convey a particularized message, and, second, there must be a great likelihood that the message would be understood by those who observe the conduct. In this case, the court de- clared that the second part of the test had not been met. See Bivens v. Albu- querque Public Schools, 899 F. Supp. 556 (N. M. 1995).

Another decision, Pyle v. South Hadley School Committee, 861 F. Supp. 157 (Mass. 1994) upheld the provision of a school’s dress code prohibiting vulgar apparel by not allowing students to wear T-shirts on school premises with slogans such as “Co-ed Naked Band; Do It to the Rhythm” and “See Dick Drive. See Dick Die. Don’t Be a Dick.” However, the provision which prohibited clothing that “harasses, threatens, intimidates, or demeans” individuals or groups, which was neither vulgar nor disruptive, was found to violate students’ First Amendment rights.

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A “no hats” policy was upheld in Isaacs ex. rel. Isaacs v. Board of Edu- cation of Howard County, 40 F. Supp.2d 335 (Md. 1999). In this case, the school had refused to permit a high school student from wearing a head- wrap in celebration of her African American and Jamaican cultural her- itage. School rules did make exceptions for religious headgear such as yarmulkes and Muslim hijab, including head scarves. The court stated that the policy did not violate the student’s free speech rights, which were not absolute, and that the “no hats” rule furthered an important government interest in providing a safe, respectful school environment.

Not being permitted to attend a high school prom because they were wearing clothing of the opposite sex was held not to be violative of the stu- dents’ First Amendment rights in Harper v. Edgewood Board of Education, 655 F. Supp. 1353 (Ohio 1987). The court contended that the dress regula- tions were reasonably related to the valid educational purposes of teach- ing community values and maintaining school discipline.

A dress regulation requiring proper attire to participate in a gradua- tion ceremony was upheld. The court maintained that receiving a diploma at a commencement program was not a property right under state law, and the student was entitled to receive his diploma separately after the program. See Fowler v. Williamson, 251 S.E.2d 889 (N.C. Ct. App. 1979).

Some observers suggest that at one time in our history, schools, espe- cially when serving a homogeneous community, were accepted as a so- cializing agency that was the arbiter of “proper” dress. If this is an accurate assessment, what factors have contributed to the demise of such a role for the school?

Does your state or school system have dress regulations?

B. Uniforms

Requiring the wearing of uniforms, as many private and parochial schools have done over the years, has increasingly been adopted by public school systems across the country. Presently, school districts in half the states have school uniform requirements, and estimates suggest that over the next several years, one in four public school students may be wearing uni- forms. Typically, when school uniform dress codes are adopted, they apply to students in kindergarten through eighth grade and may be either voluntary or mandatory with opt-out provisions for claims of conscience.

California passed dress code and school uniform legislation in 1994. It provides, in part:

(a) The legislature finds and declares each of the following:

(1) The children of this state have the right to an effective public school edu- cation. Both students and staff of the primary elementary, junior and senior high school campuses have the constitutional right to be safe and secure in their persons at school. However, children in many of our public schools are

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forced to focus on the threat of violence and the messages of violence con- tained in many aspects our society, particularly reflected in gang regalia that disrupts the learning environment.

(2) “Gang-related apparel” is hazardous to the health and safety of the school environment.

(3) Instructing teachers and administrators on the subtleties of identifying constantly changing gang regalia and gang affiliation takes an increasing amount of time away from educating our children.

(4) Weapons including firearms and knives, have become commonplace upon even our elementary school campuses. Students often conceal weapons by wearing clothing, such as jumpsuits and overcoats, and by carrying large bags.

(5) The adoption of a schoolwide uniform policy is a reasonable way to pro- vide some protection for students. A required uniform may protect students from being associated with any particular gang. Moreover, by requiring schoolwide uniforms teachers and administrators may not need to occupy as much of their time learning the subtleties of gang regalia.

(6) To control the environment in public schools to facilitate and maintain an effective learning environment and to keep the focus of the classroom on learning and not personal safety, schools need the authorization to imple- ment uniform clothing requirements for our public school children.

(7) Many educators believe that school dress significantly influences pupil behavior. This influence is evident on school dressup days and color days. Schools that have adopted school uniforms experience a “coming together feeling,” greater school pride, and better behavior in and out of the class- room.

(b) The governing board of any school district may adopt or rescind a rea- sonable dress code policy that requires pupils to wear a schoolwide uni- form or prohibits pupils from wearing “gang-related apparel” if the governing board of the school district approves a plan that may be initi- ated by an individual school’s principal, staff, and parents and determines that the policy is necessary for the health and safety of the school environ- ment. . . .

(c) . . . If a schoolwide uniform is required, the specific uniform selected shall be determined by the principal, staff, and parents of the individual school.

(d) A dress code policy that requires pupils to wear a schoolwide uniform shall not be implemented with less than six months notice to parents and the availability of resources to assist economically disadvantaged pupils.

(e) The governing board shall provide a method whereby parents may choose not to have their children comply with an adopted school uniform policy.

(f) If a governing board chooses to adopt a policy pursuant to this section, the policy shall include a provision that no pupil shall be penalized academ- ically or otherwise discriminated against nor denied attendance to school if the pupil’s parents chose not to have the pupil comply with the school uni- form policy. The governing board shall continue to have responsibility for the appropriate education of those pupils.

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(g) A policy adopted pursuant to this section shall not preclude pupils that participate in a nationally recognized youth organization from wearing or- ganization uniforms on days that the organization has a scheduled meeting. Cal. Educ. Code § 35183 (West 1994).

Courts have upheld mandatory school uniform policies. The New York City Board of Education adopted a mandatory citywide uniform pol- icy for all students in grades pre-K through 8 except in schools designated as middle schools, intermediate schools, junior high schools, and high schools. The policy’s stated intentions were to: “promote a more effective learning climate; foster school unity and pride; improve student perfor- mance; foster self-esteem; eliminate label competition; simplify dressing and minimize costs to parents; teach children appropriate dress and deco- rum in the ‘workplace’; and help to improve student conduct and disci- pline.” Under the policy, parents could seek an exemption for their children. A parent who challenged the policy alleged that his constitu- tional right to raise his child in the manner in which he deemed appropri- ate was violated and that the opt-out provision would merely make his daughter “stick out.” In its unreported decision in Lipsman v. New York City Board of Education, No.98 Civ.2008(SHS), 1999 WL 498230 (N.Y.), the court held that the policy was rationally related to the board’s legitimate interest in educating children and that the father ‘s constitutional rights had not been violated. In another decision, an Arizona appellate court upheld a school uniform policy in Phoenix Elementary School District No. 1 v. Green, 943 P.2d 836 (Ariz. Ct. App.1997). The judge reasoned that the school was a nonpublic forum and therefore could limit expression that was not deemed to further safety or the school’s educational mission.

Does your state have a dress code or school uniform legislation?

C. Grooming

Court decisions dealing with grooming issues have not been consistent. Judicial views range from upholding the right of males to wear “long” hair, on the basis that this right is protected by the federal Constitution, to declaring the question an unworthy one for federal court attention. Fed- eral appellate courts in the Fifth, Sixth, Ninth, and Tenth Circuits either upheld grooming regulations or contended that grooming regulations were unworthy of their attention. See Ferrell v. Dallas Independent School District, 392 F.2d 697 (5th Cir. 1968), cert. denied, 393 U.S. 856 (1968); Jack- son v. Dorrier, 424 F.2d 213 (6th Cir. 1970), cert. denied, 400 U.S. 850 (1970); King v. Saddleback Junior College District, 445 F.2d 932 (9th Cir. 1971); and Freeman v. Flake, 448 F.2d 258 (10th Cir. 1971). In contrast the First, Fourth, Seventh, and Eighth Circuits found regulations limiting the length of hair invalid. See Richards v. Thurston, 424 F.2d 1281 (1st Cir. 1970); Massie v.

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Henry, 455 F.2d 779 (4th Cir. 1972); Breen v. Kahl, 419 F.2d 1034 (7th Cir. 1969), cert. denied, 398 U.S. 937 (1970); and Bishop v. Co law, 450 F.2d 1069 (8th Cir. 1971). To date, the United States Supreme Court has not rendered a substantive decision in school grooming cases, denying certiorari in cases dealing with male students’ hair length.

State courts in Oklahoma, Oregon, and Alaska have held that schools do not have the authority to regulate hairstyles. See Independent School Dis- trict No. 8 of Seiling v. Swanson, 553 P.2d 496 (Okla. 1976); Neuhaus v. Fed- erico, 505 P.2d 939 (Or. Ct. App. 1973); and Breese v. Smith, 501 P.2d 159 (Alaska, 1972). However, Supreme Courts in Texas, Miss MI6, and Kansas have not held similarly. See Barber v. Colorado Independent School District, 901 S.W.2d 447 (Tex. 1995); Kraus v. Board of Education of the City of Jennings, 492 S.W.2d 783 (Mo. 1973); and Blaine v. Board of Education, Haysville Unified School District No. 261, 502 P.2d 693 (Kan. 1972).

The Supreme Court of Texas, in Barber v. Colorado Independent School District, 901 S.W.2d 447 (Tex. 1995), upheld a code that included the following:

The district’s dress code is established to teach grooming and hygiene, instill discipline, prevent disruption, avoid safety hazards, and teach respect for authority.

Boys may wear hair to the bottom of the collar, the bottom of the ear, and combed out of the eyes. Boys may not wear earrings of any kind. Caps and hats not a part of women’s formal attire may not be worn in the building. Sud- den, unbecoming fashions or anything designed to attract undue attention to the individual or activities are not acceptable. These guidelines are subject to administrative discretion. Extra-curricular organizations may impose a more stringent dress code. (p. 448)

The dress code was challenged on the basis of the student’s being eigh- teen years old (age of majority) and that the restrictions for males re- garding hair length and earrings violated his fundamental constitutional rights because the policy did not apply to female students. In its holding, the court ruled that the student’s constitutional rights had not been vio- lated and that it was “a matter of common sense that the state judiciary is less competent to deal with students’ hair length than a parent, school board, administrator, principal, or teacher.” One dissenting justice accused the majority of dismissing the student’s claims without the benefit of legal analysis and declared that the “Court turns its back on an indisputable finding of sex discrimination, and unashamedly proclaims that such mat- ters are not worthy of this Court’s consideration.” This decision, another dissenter argued, immunizes local Texas school boards from claims of gen- der discrimination.

How does your school deal with students who wear hair “spiked,” brightly colored, or unusually styled? Are your school’s policies adequate to deal with this issue?

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VI. PREGNANCY, PARENTHOOD, AND MARRIAGE

Years ago, public school policies often excluded students who were mar- ried or pregnant or who were parents. The rationale for such policies was that exclusion would serve as a deterrent and thereby discourage students from becoming pregnant or getting married. Such policies, which in prac- tice applied disproportionately to females, were successfully attacked in the courts. Enactment of Title IX of the Education Amendments of 1972 ad- dressed the issue on the basis of prohibiting gender discrimination in any educational programs receiving federal funds.* The section Marital or Parental Status of the implementing regulations for Title IX states:

Marital or parental status.

(a) Status generally. A recipient shall not apply any rule concerning a stu- dent’s actual or potential parental, family, or marital status which treats stu- dents differently on the basis of sex.

(b) Pregnancy and related conditions. (1) A recipient shall not discriminate against any student, or exclude any student from its education program or activity, including any class or extracurricular activity, on the basis of such student’s pregnancy, childbirth, false pregnancy, termination of pregnancy or recovery therefrom, unless the student requests voluntarily to participate in a separate portion of the program or activity of the recipient.

(2) A recipient may require such a student to obtain the certification of a physician that the student is physically and emotionally able to continue participation in the normal education program or activity so long as such a certification is required of all students for other physical or emotional condi- tions requiring the attention of a physician.

(3) A recipient which operates a portion of its education program or activity separately for pregnant students, admittance to which is completely volun- tary on the part of the student as provided in paragraph (b)(1) of this section shall ensure that the instructional program in the separate program is com- parable to that offered to non-pregnant students.

(4) A recipient shall treat pregnancy, childbirth, false pregnancy, termination of pregnancy and recovery therefrom in the same manner and under the same policies as any other temporary disability with respect to any medical or hospital benefit, service, plan or policy which such recipient administers, operates, offers, or participates in with respect to students admitted to the re- cipient’s educational program or activity.

(5) In the case of a recipient which does not maintain a leave policy for its students, or in the case of a student who does not otherwise qualify for leave under such a policy, a recipient shall treat pregnancy, childbirth, false preg- nancy, termination of pregnancy and recovery therefrom as a justification for a leave of absence for so long a period of time as is deemed medically neces-

*See Appendix D for Title IX of the Education Amendments of 1972.

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sary by the student’s physician, at the conclusion of which the student shall be reinstated to the status which she held when the leave began. 45 C.F.R. § 86.40 (1972).

In an alleged Title IX violation, a federal court of appeals addressed a female student’s dismissal from a chapter of the National Honor Society because of her pregnancy. In its decision, the court stated that premarital sex, rather than gender, and pregnancy or failure to marry could be rea- sons taken into account for the student’s dismissal. Faculty members had stated that failure to uphold standards of leadership and character, not the pregnancy, were the basis for dismissal. The court also concluded that not dismissing from the society a male member who had engaged in premari- tal sex was relevant in determining whether members of the faculty had a double standard and, therefore, intentionally discriminated against the pregnant student. See Pfeiffer v. Marion Center Area School District, 917 F.2d 779 (3rd Cir. 1990). However, see Chipman v. Grant County School District, 30 F. Supp.2d 975 (Ky. 1998), which granted an injunction compelling a school to admit to an honor society two unmarried female students who became pregnant and had children. The court in this case applied the Preg- nancy Discrimination Act* and contended that they had been discrimi- nated against under both a disparate impact (the policy had caused a significant adverse effect on, in this case, women who have become preg- nant from premarital sex and have become visibly pregnant) and disparate treatment (member of a protected class who has been treated differently, in this case, because of pregnancy) theory and that they would likely prevail in a subsequent discrimination suit.

Should pregnant cheerleaders be allowed to continue their cheering? Should a cheerleader who has had an abortion be allowed back on the squad? Do school systems generally attempt to regulate male athletes who are fathers or responsible for pregnancies? Does a double standard con- tinue to exist that brands sexually active girls but not their male partners?

Does your local school system or state have policies regarding stu- dents who are married or pregnant or who are parents?

VII. PARTICIPATION IN EXTRACURRICULAR ACTIVITIES

Extracurricular activities are usually thought of as being conducted out- side the classroom before or after regular school hours, usually noncredit, generally supervised by school officials, academically nonremedial and of a voluntary nature on the part of the students. They may include activities such as athletics, drama, clubs, band, cheerleading, and debate.

*See Appendix D for the Pregnancy Discrimination Act of 1978, P.L. 95-555.

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Two basic legal issues have surfaced when policies excluding a stu- dent from extracurricular activities are attacked. One of the issues raises the question of the status of extracurricular activities as a protected prop- erty interest and the requisite process due, if any. The other issue deals with the equal protection claim that an excluded student is the victim of a school’s arbitrary classification scheme.

A. LEGAL STATUS OF EXTRACURRICULAR ACTIVITIES

In following Goss, courts have generally held that students have a prop- erty interest in the entire educational process. However, courts have not agreed whether or not participation in one aspect of the process, such as extracurricular activities, is a constitutionally protected property interest. If it is held that such a property interest does exist, courts must then decide the extent of due process that must be provided. These issues were exam- ined in Palmer v. Merluzzi.

PALMER v. MERLUZZI United States Court of Appeals, Third Circuit, 1989

868 F.2d 90

STAPLETON, Circuit Judge. This is an appeal from a summary judgment in favor of the defendants,

Peter Merluzzi, Superintendent of Schools for the Hunterdon Central High School District, and the Hunterdon Central Board of Education, Plaintiff Dan Palmer, a student and football player at Hunterdon, claims that his Constitu- tional rights to due process and equal protection were violated when Super- intendent Merluzzi suspended him from playing interscholastic football for sixty days. We will affirm.

In September of 1986, Dan Palmer was a senior at Hunterdon Central High School and a starting wide receiver on the high school’s football team. He was also enrolled in a high school course called “Careers in Broadcast- ing Technology.” On the evening of September 28, 1986, in order to fill a course requirement, Palmer and three other students were assigned, without faculty supervision, to the school radio station which is located on the school premises. The next morning, beer stains and a marijuana pipe were discovered at the radio station. Later that day, Palmer, school disciplinarian Dr. Grimm, and Mr. Buckley, Palmer’s former football coach, met in Mr. Buckley’s office and Palmer was questioned about this discovery. During that meeting, Palmer admitted that the evening before he had smoked marijuana and consumed beer at the radio station.

Students and the Law 1 65

On September 30, 1986, Dr. Grimm sent Mr. and Mrs. Palmer a letter advising them that their son had been assigned a ten-day out-of-school sus- pension effective from September 30, 1986 to October 13, 1986. The letter asked the Palmers to call Dr. Grimm if they had additional questions and suggested that they and their son consider counseling. The Palmers took no action to contest the ten-day suspension.

* * * On October 13, the eve of the expiration of the ten-day suspension, the

Board of Education met. Palmer’s father, James Palmer, hearing “rumors” concerning the possible imposition of additional sanctions on his son, at- tended the meeting and spoke with Merluzzi shortly before it started. Mer- luzzi confirmed that he was inclined to impose a sixty-day extracurricular suspension, but told James Palmer that he could raise the issue with the Board. James Palmer was accorded half an hour in closed session to present his views; he argued that the additional suspension would adversely affect his son’s chances of playing football in college and would also reduce his chances of being awarded college scholarships. The Board declined to in- tervene and, after the meeting, Merluzzi informed all concerned parents that he was definitely going to impose the sixty-day extracurricular suspension.

* * * The threshold issue is whether the interests that could be adversely af-

fected in the proceeding against Palmer were such that the due process clause was implicated. The answer seems clear. In Goss vs. Lopez, * * * the Supreme Court concluded that due process was required when a student faced a ten-day scholastic suspension. A fortiori, due process is required when a student faces a ten-day academic suspension and a sixty-day athletic suspension.

Having concluded that “some process” was due, we turn to the issue of how much was due. We know from Goss what process would have been due if only a ten-day academic suspension had been at stake. After balancing the competing interests involved, the Court decided that the student must be given “oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story.” The Court continued, stating that “Where need be no delay between the time ‘notice’ is given and the time of the hear- ing. .. . We hold only that . . . the student first be told what he is accused of doing and what the basis of the accusation is.” * * * The Court also stopped short of requiring that the student be given “the opportunity to secure coun- sel, to confront and cross-examine witnesses supporting the charge, or to call his own witnesses to verify his version of the incident.” As long as the student “at least ha[s] the opportunity to characterize his conduct and put it in what he deems the proper context,” due process has been satisfied.

Palmer received the process required by Goss. The day after the inci- dent at the radio station, in an informal hearing with Dr. Grimm and

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Mr. Buckley, he was advised of what had been found in the radio station and thus of the character of the offense being investigated. He then admitted his participation in the smoking of marijuana and the drinking of beer at the sta- tion. Palmer’s involvement in the activities of that evening has never been disputed. During the conference, Palmer had the opportunity to put the events of the prior evening into what he perceived to be their proper context and could have argued for leniency had he so chosen.

* * * In this case, Palmer was advised at the outset that he was suspected of

consuming alcohol and a drug on school property. The Student Handbook, which was applicable to all students, specified that “alcohol and/or drug use” would, if a first offense, result in “10 days suspension” from school. The Interscholaqic Athletic Program policy statement, whicii was applicable to Palmer and other students participating in that program, warned that “no stu- dent may participate who has not demonstrated good citizenship and re- sponsibility.” Based on these provisions, the nature of the offense, and common sense, we, like the New Jersey Commissioner of Education, are confident that Palmer must have realized from the outset that his football el- igibility, as well as his status as a student, was at stake. Accordingly, we hold that Palmer’s interview with Dr. Grimm and Mr. Buckley provided just as meaningful an opportunity to argue against the athletic suspension as against the scholastic suspension.

* * * Due process is a flexible concept and the process due in any situation is

to be determined by weighing (1) the private interests at stake, (2) the govern- mental interests at stake, and (3) the fairness and reliability of the existing pro- cedures and the probable value, if any, of additional procedural safeguards.

* * * We accept for present purposes Palmer’s contention that, while called

an extracurricular activity, the school’s football program is an integral part of its educational program. Nevertheless, it is but one part of that program and in terms of lost educational benefit, the loss occasioned by a football suspen- sion is far less than that occasioned by a suspension from school for a com- parable period of time. In terms of the student’s standing with teachers and peers, we believe the potential loss is likely to be a function of the nature of the offense rather than the penalty; it is therefore unlikely to be affected by the fact that the sanction includes an athletic as well as a school suspension. As a general proposition, we believe the same can be said for the potential for interference with later opportunities for higher education and employ- ment. Indeed, Palmer does not argue otherwise. The loss that he emphasizes is the possible loss of the opportunity to play college football. Although we acknowledge that the loss of the opportunity to impress college scouts with one’s senior year play can have a significant adverse effect on one’s chances for a college football career, we believe it would be unduly disruptive of a school’s educational process to require one disciplinary process for football

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players and similarly situated athletes and another disciplinary process for other students.

* * *

Palmer also contends that his suspension violated his right to equal protection under the Fourteenth Amendment. Since participation in ex- tracurricular activities is not a fundamental right under the Constitution and since Palmer’s suspension was not based on a suspect classification, * * * we must examine Palmer’s argument under the “rational relationship test.” * * * We conclude that the disciplinary actions taken by the school were ratio- nally related to a valid state interest. The State has very strong interests in preserving a drug-free environment in its schools and in discouraging drug use by its students. We are unwilling to say that the sanctions imposed on Palmer were not reasonably designed to serve those legitimate interests.

Since Palmer’s suspensions from school and participation in inter- scholastic football did not violate any right secured by the Constitution, we will affirm the judgment of the district court.

Notes and Questions

Many courts have addressed this issue over the years. In one instance, stu- dents who had allegedly violated a school’s alcohol policy were sus- pended from such extracurricular activities as sports, clubs, and the National Honor Society. In denying the students’ request for a preliminary injunction, the court in Farver v. Board of Education, 40 F. Supp2d 323 (Md. 1999), held that there was no constitutionally protected right to participate in extracurricular activities. The court recognized that although the harsh- ness of the penalty could be questioned, it was a matter for state law to ad- dress and not a federal court.

In an earlier decision, Dallam v. Cumberland Valley School District, 391 F. Supp. 358 (Pa. 1975) the court stated:

. [T]he property interest in education created by the state is participation in the entire process. The myriad activities which combine to form that edu- cational process cannot be dissected to create hundreds of separate property rights, each cognizable under the Constitution. Otherwise, removal from an athletic team, a club or any extracurricular activity, would each require ulti- mate satisfaction of procedural due process. (p. 361)

In Pegram v. Nelson, 469 F. Supp.1134 (N.C. 1979), the court declared:

Since there is not a property interest in each separate component of the “ed- ucational process,” denial of the opportunity to participate in merely one of several extracurricular activities would not give rise to a right to due process. However, total exclusion from participation in that part of the educational process designated as extracurricular activities for a lengthy period of time could, depending upon the particular circumstances, be a sufficient depriva- tion to implicate due process. (p. 1140)

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And in Albach v. Olde, 531 F.2d 983 (10th Cir. 1976), the court main- tained that:

. . The educational process is a broad and comprehensive concept with a variable and indefinite meaning. It is not limited to classroom attendance but includes innumerable separate components, such as participation in athletic activity and membership in school clubs and social groups, which combine to provide an atmosphere of intellectual and moral advancement. We do not read Goss to establish a property interest subject to constitutional protection in each of these separate components. (p. 985)

Similar views were expressed in Mazevski v. Horseheads Central School District, 950 F. Supp. 69 (N.Y. 1997), which upheld the dismissal of a stu- dent from the marching band for missing a competition performance with- out permission, to participate in a Macedonian music festival in Canada. The court held that although the student had a protectible property inter- est in the entire educational process, exclusion from a particular course, event, or activity was of no constitutional import.

School authorities were upheld in declaring a champion high school wrestler ineligible for the state wrestling championship. The school board’s decision resulted from the wrestler’s participation with three other stu- dents in having multiple acts of sexual intercourse with a sixteen-year-old female student. In responding to the issue of the loss of a scholarship, the court stated:

When scholarships are awarded at the discretion of a college coach, and such discretion has not yet been exercised, no property interest in the receipt of a scholarship can exist, and the plaintiff cannot invoke his expectation that he would earn a scholarship at the state tournament in order to claim a prop- erty interest in wrestling there. (p. 631)

See Brands v. Sheldon Community School, 671 F. Supp. 627 (Iowa 1987). Courts have addressed the issue of academic requirements for par-

ticipation in extracurricular activities. These requirements, often referred to as “no pass, no play” rules, generally require that a student maintain a passing grade (“C” or 70%) in all academic classes in order to be eligible to participate in extracurricular activities. Courts have not upheld contentions that such rules violate the Equal Protection Clause of the Fourteenth Amendment. See Montana v. Board of Trustees of School District No. 1, 726 P.2d 801 (Mont. 1986); Spring Branch Independent School District v. Stamos, 695 S.W.2d 556 (Tex. 1985); and Bailey v. Truby, 321 S.E.2d 302 (W. Va. 1984).

What is your school system’s policy regarding the restriction of stu- dents from participating in extracurricular activities?

B. Athletics

Exclusion or suspension from participation in athletics makes up the vast majority of court cases dealing with extracurricular activities. Rules barring

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married students, females, and students with disabilities from participating in athletics are frequently challenged. Those barred generally allege that they have not received equal protection guaranteed under the Fourteenth Amendment or that the school conduct violates a federal statute.

1. Married Students Cases dealing with married students barred from participating in

athletics have often involved “star” athletes who claim they will be de- prived of an opportunity to be considered for athletic scholarships. Those barred have also alleged that such rules infringe on the fundamental right of marriage. Historically, courts had upheld rules barring married stu- dents from participating in athletics. However, beginning in the early 1970s, courts have uniformly and consistently invalidated such rules.

BEESON v. KIOWA COUNTY SCHOOL DISTRICT RE-1

Colorado Court of Appeals, 1977 567 P.2d 801

RULAND, Judge * * *

Plaintiff was a senior in high school, married, and the mother of a child at the time she initiated this action seeking to enjoin the school board from enforcing its policy so that she could participate on the girl’s varsity basket- ball team. * * *

* * *

The facts pertinent to this review are not disputed. Plaintiff was a “star player” on the girl’s varsity basketball team during her freshman year in high school. However, she married the following summer and a child was born to the married couple during her sophomore year. Plaintiff was aware of the policy at the time she married.

Plaintiff did not seek to participate on the varsity team during either her sophomore or junior years. Plaintiff sought, however, to rejoin the team for her senior year, but was precluded by the school policy from doing so. While she was allowed to practice with the team, she was not allowed to partici- pate in interscholastic competition.

Plaintiff testified that by reason of her inability to compete on the var- sity team during her senior year, she lost any opportunity for a college ath- letic scholarship. She expressed the belief that she would have been offered an athletic scholarship based on her previously demonstrated ability and on the fact that her sister had been offered such a scholarship at some time in the past.

* * *

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We first emphasize that the issue on appeal is whether the school board’s policy is valid in the context of plaintiff being a married student. Therefore, we do not consider the validity of a policy which would preclude plaintiff from participating in extracurricular activities because she was the mother of a young child, or whether a policy would be valid if it required married women to meet certain requirements in order to assure the board that no injuries would result from an undetected pregnancy. The additional considerations inherent in such policies are irrelevant here because the pol- icy at issue excluded plaintiff from participating in extracurricular activities based solely on the fact that she was married.

According to § 14-12-101, C.R.S. 1973, “[ilt is the declared public pol- icy of this state . . . to promote and foster the marriage relationship. . . . We are therefore compelled to hold that the creation of a “marriage relationship” is a fundamental right in this jurisdiction. * * *

Nor is this fundamental right vitiated by the fact that plaintiff needed parental consent to enter her marriage. Plaintiff’s marriage was entered into in compliance with § 14-2-106, C.R.S. 1973, of the Uniform Marriage Act. That Act has as one of its purposes “to strengthen and preserve the integrity of marriage and to safeguard meaningful family relationships.” * * * [Tihe General Assembly has obviously determined that this purpose is fulfilled, if as here, parental consent for plaintiff’s marriage is first obtained. Hence, it is clear that a board policy which discriminates against those who exercise that right violates the Equal Protection Clause of the Fourteenth Amendment, un- less there exists a compelling interest which justifies that discrimination. * * *

* * *

Looking then to the reasons offered by the school board, we conclude that the acknowledged intent to discourage eligible persons from marrying obviously contravenes the declared public policy of this State “to promote and foster the marriage relationship.” * * * Illustrative of the inhibiting effect of the policy is evidence in the record indicating that another star basketball player in the same school district who had fathered a child during his senior year remained eligible for interscholastic competition because he did not marry the mother until after his graduation.

This impact of the policy upon the marriage relationship requires us to consider whether the discrimination created by the board’s policy is justified by the need to require married students to focus on their basic education and their family responsibilities by excluding them from extracurricular activities. We find no support for the discrimination here. The focus on basic education can be supplied by a board policy which establishes academic requirements for both married and unmarried students to be eligible for extracurricular ac- tivities. On the other hand, the fulfillment of family responsibilities may, in many cases, depend upon further education at the college level, and depriv- ing students of the opportunity to earn a college athletic scholarship, or to

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participate in extracurricular activities to broaden their general background, could close the door to any opportunity to obtain that education. * * *

Finally, we must evaluate the board’s contention that married students who participate in extracurricular activities may tend to promote a lack of discipline among the other students and may not be dependable because of their family responsibility. Since the policy has been in effect for approxi- mately 20 years, we understand why no incidents were cited by the board where these problems have arisen. On the other hand, we are unable to per- ceive why the same policies which govern the discipline and dependability of unmarried students whO participate in extracurricular activities would not serve to resolve any such problems. At least we cannot characterize this po- tential problem, standing albne, as sufficient justification for discrimination against the fundamental right to marry. * * *

Accordingly, the judgment of the district ‘court is reversed and the cause remanded with directions to enter judgment declaring the board’s policy invalid as a denial of equal protection under the Fourteenth Amendment.

Notes and Questions

May a divorced student be barred from engaging in extracurricular activi- ties? See Romans v. Crenshaw, 354 F. Supp. 868 (Tex. 1972), which upheld a divorced student’s right to engage in such activities..

Does your state have a statutory provision pertaining to married stu- dents participating in extracurricular activities? What are your local school system’s rules or policies regarding married students engaging in such activities?

2. Gender Equity Historically, there has been both de facto and de jure segregation of

male and female public school students. In §ome school systems, entire schools have been segregated on the basis of sex. More common, however, has been the separation of the sexes in certain classes and in interscholastic athletic participation. A flagrant example has been the routine assignment of girls to home economics classes and boys to “shop” courses. Opportu- nities for females in athletic competition were limited, and the stereotypic role for a female was often that of cheerleader, flag girl, or pom-pom girl.

Many female students and their parents considered such treatment, especially in the limited opportunity for athletic competition, to be in vio- lation of the equal protection provision of the Fourteenth Amendment and a form of sex discrimination. Many courts have agreed with thig con- tention, and although Title IX addresses this issue, litigation pertaining to female participation in athletic programs has not abated. Although Title IX

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has been primarily associated with increasing female participation in heretofore male-dominated activities, it provides gender equity for both males and females.

Section 86.41, Athletics, of the implementing regulations for Title IX stipulates :

Athletics.

(a) General. No person shall, on the basis of sex, be excluded from partici- pation in, be denied the benefits of, be treated differently from one an- other or otherwise be discriminated against in any interscholastic, intercollegiate, club or intermural athletics offered by a recipient, and no recipient shall provide any such athletics separately on such basis.

(b) Separate teams. Notwithstanding the requirements of paragraph (a) of this section, a recipient may operate or sponsor separate teams for mem- bers of each sex where selection for such teams is based upon competi- tive skill or the activity involved is a contact sport. However, where a recipient operates or sponsors a team in a particular sport for members of one sex but operates or sponsors no such team for members of the other sex, and athletic opportunities for members of that sex have previ- ously been limited, members of the excluded sex must be allowed to try out for the team offered unless the sport involved is a contact sport. For the purposes of this part, contact sports include boxing, wrestling, rugby, ice hockey, football, basketball, and other sports the purpose or major ac- tivity of which involves bodily contact.

(c) Equal opportunity. A recipient which operates or sponsors interscholastic, intercollegiate, club or intermural athletics shall provide equal athletic op- portunity for members of both sexes. In determining whether equal op- portunities are available the Director will consider, among other factors:

(1) Whether the selection of sports and levels of competition effec- tively accommodate the interests and abilities of members of both sexes;

(2) The provision of equipment and supplies; (3) Scheduling of games and practice time; (4) Travel and per diem allowance; (5) Opportunity to receive coaching and academic tutoring; (6) Assignment and compensation of coaches and tutors; (7) Provision of locker rooms, practice and competitive facilities; (8) Provision of medical and training facilities and services; (9) Provision of housing and dining facilities and services;

(10) Publicity.

Unequal aggregate expenditures for members of each sex or unequal expenditures for male and female teams if a recipient operates or sponsors separate teams will not constitute noncompliance with this section, but the Director may consider the failure to provide neces- sary funds for teams for one sex in assessing equality of opportunity for members of each sex. 45 C.F.R. § 86.41 (1972).*

*See Appendix D for Title IX of the Education Amendments of 1972.

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Title IX’s passage has greatly enhanced opportunities for female ath- letes at both the public school and collegiate levels, although it has had a particularly dramatic effect at the collegiate level. This may be seen by in- creased emphasis, at the collegiate level, in such sports as gymnastics, vol- leyball, basketball, swimming, soccer, track, golf, tennis, and softball.

VIII. SCHOOL PUNISHMENT FOR OUT-OF-SCHOOL OFFENSES

Out-of-school conduct of students may have an impact on the overall well- being of the school. When there is a problem with out-of-school conduct, school authorities must reconcile their control of student conduct neces- sary for the orderly operation of the school with their obligation to comply with the standards of constitutionality and reasonableness required by the judiciary to ensure that students receive just treatment.

Several court decisions have addressed issues dealing with noncrim- inal, off-campus student activity. In one case, it was alleged that two stu- dents were assaulted by a group of others while they were all walking home after school. Although the court agreed that school authorities may punish students for out-of-school physical abuse directed at other stu- dents, punishment such as expulsion may not be based on unsigned and unidentified statements by student witnesses. See Tibbs v. Board of Educa- tion of the Township of Franklin, 276 A.2d 165 ( N.J. Super. Ct. 1971).

Parking an automobile off campus contrary to school rules was an issue in McLean Independent School District v. Andrews, 333 S.W.2d 886 (Tex. Civ. App. 1960). A student’s suspension for breaking the school rules was upheld, primarily on the basis of promoting the safety of student pedestri- ans on the streets adjacent to the school during noon recess. The court noted, however, that the rule in question might provide future complica- tions as students parked at more remote distances from the campus.

An Ohio appellate court, in McNaughton v. Circleville Board of Educa- tion, 345 N.E.2d 649 (Ohio Comm. Pleas 1974), upheld the suspension from school and from participation in athletic activities of students who held an out-of-school initiation and hazing of new members of an officially recog- nized high school club. The club’s advisor had not been notified nor was he present at the initiation, which occurred at the home of one of the of- fending students. Initiates were struck with belts, forced to eat onions, and required to rub tabasco sauce on the faces of fellow initiates.

Cases have addressed the dismissal of students’ school chapters of the National Honor Society owing to their violation of a rule against the use of alcohol. In two such cases, Warren v. National Association of Secondary School Principals, 375 F. Supp. 1043 (Tex. 1974), and Ector County Indepen- dent School District v. Hopkins, 518 S.W.2d 576 (Tex. Civ. App. 1975), the

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violative drinking took place off campus. These courts stressed that stu- dents facing dismissal from an honor society as a result of their drinking had to be afforded appropriate due process.

Courts have held that public school students’ out-of-school criminal conduct may be subject to school disciplinary hearings, although as a prac- tical matter the particular kind of school response will be influenced by the nature and seriousness of the criminal charges. Anon-school-related speed- ing charge, for instance, might be ignored by authorities, while a murder or rape charge would not be.

R.R. v. Board of Education of the Shore Regional High School District, 263 A.2d 180 (N.J. Sup. Ct. Ch. Div. 1970), addressed the question of whether public school officials can deprive a student of his or her right to attend school because of criminal acts committed off school grounds. In this in- stance, a fifteen-year-old boy stabbed a girl during an altercation in a neighbor’s house after the boy had returned home at the end of a school day. This court concluded that officials do have the right to expel or sus- pend students for out-of-school activities when it is reasonably necessary either for the transgressing student’s physical or emotional safety and well- being or for the safety and well-being of other students, teachers, or pub- lic school property. Despite this conclusion, the court ordered the school to readmit the student because of due process violations.

A California court upheld the suspension of students involved in such offenses as kidnapping, rape, assault with a bumper jack, assault re- sulting in the death of a boy whose head struck a sidewalk curb, carrying a concealed weapon, and disturbing the peace. The California court made no attempt to distinguish between offenses that occurred on campus and those that occurred off campus. See S. v. Board of Education, San Francisco Unified School District, 97 Cal. Rptr. 422 (Cal. Ct. App. 1971).

A federal district court in Caldwell v. Cannady, 340 F. Supp. 835 (Tex. 1972), upheld the reasonableness of a local school board policy mandating the expulsion of any student possessing, using, or selling dangerous or narcotic drugs. In this instance students were disciplined after they were arrested when marijuana was found in their automobile in a series of inci- dents at night and away from khool.

Authority of school officials to discipline a student acquitted of out- of-school reckless driving charges was addressed by the Supreme Court of Wyoming in Clements v. Board of Trustees of the Sheridan County School Dis- trict No. 2, 585 P.2d 197 (Wyo. 1978). The student had been charged with reckless driving for purposely impeding the progress of a school bus. The court held that school authorities may discipline pupils for out-of-school conduct having a direct and immediate effect on the discipline or general welfare of the school.

Constitutional questions regarding double jeopardy and self- incrimination have been raised in the cases ruling on the legality of actions

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taken by public school officials in response to charges of out-of-school criminal violations against students. Courts have consistently held that both school sanctions and judicial sanctions are permitted without vio- lating the Fifth Amendment prohibition against double jeopardy. They maintain that school hearings and criminal proceedings have different purposes, with school responses being civil or remedial whereas judicial responses are punitive. Although acknowledging that school discipline has punitive effects, the courts contend that its underlying purpose is the protection of the school environment.

Courts have also held that public school students’ out-of-school criminal conduct properly may be the subject of school disciplinary hear- ings without violating Fifth Amendment rights against compulsory self- incrimination. Students may not be required to testify in these proceedings, and if students’ rights are infringed upon in the hearings, courts reason, the students may then ask for a judicial review of the proceedings.

Analysis reveals that the judiciary supports the rationale that stu- dents may be subject to school discipline, including suspension or expul- sion, if their out-of-school conduct threatens the efficient operation of the school. Generally, the courts recognize that the authority to make and enforce policies designed to protect the safety and welfare of students is a reasonable and necessary exercise of the power invested in local school boards. Nevertheless, courts will support the use of that authority over out- of-school criminal conduct only when they perceive the conduct as having a direct and substantial impact on the school and its programs.

When the out-of-school conduct has involved physical violence or oth- erwise threatened the safety or well-being of students, the judiciary has not been concerned with whether the conduct occurred out of school or in school. Decisions indicate that the test of the public school’s authority to control student conduct is not the time or place of the conduct, but rather its effect on the morale and efficiency of the school. It may be concluded that the nature and seriousness of the conduct and its potential impact on the public school and its programs are more important than where the conduct occurred.

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CHAPTER FOUR

Teachers and the Law

Teachers have often employed the courts to remedy treatment by school authorities with whom they disagreed. Inmany instances, personnel prac- tices that had become institutionalized through custom have been chal- lenged as being discriminatory, violative of statutory or constitutional provisions, or unfair. Although teachers have not always been successful in actions brought before the judiciary, their willingness to employ the courts for a redress of grievances has produced a climate in which public school administrators have become more sensitive to the necessity of treat- ing teachers in a legally defensible manner.

This chapter focuses on law relating to nonrenewal and dismissal of teachers; teachers’ freedom of expression; academic freedom; drug testing; standards of dress; the teacher as exemplar; employment discrimination; collective bargaining; and the political rights of teachers.

I. NONRENEWAL AND DISMISSAL

Over the years, the development of state statutory provisions and the ex- istence of a sizable body of case law have provided teachers with safe- guards against arbitrary dismissal. Although school administrators have the primary task of evaluating teachers and determining their fitness, this task must be done in accordance with state statutory provisions and in the light of constitutional protections.

According to a United States Supreme Court decision, Board of Re- gents of State Colleges v. Roth, a nontenured teacher need not be given reasons for nonrenewal unless the nonrenewal deprived the teacher of a “liberty” interest or if there was a “property” interest in continued em- ployment. Any statement regarding the reason for the nonrenewal could result in the teacher’s requesting a due process hearing.

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Depending on a state’s statutory provisions, dismissal of a tenured teacher or one under a continuing contract must be in conformance with the state law. State provisions usually contain grounds for dismissal such as nonperformance of duty, incompetency, insubordination, conviction of crimes involving moral turpitude, failure to comply with reasonable or- ders, violation of contract provisions or local rules or regulations, persistent failure or refusal to maintain orderly discipline of students, and revocation of the teaching certificate. Additionally, all of the procedural aspects of the hearing process provided by state statute must be afforded the teacher. These often include the following requirements: proper notice, containing charges and the names and nature of the testimony of witnesses and stating the time and place of the hearing; compulsory process or subpoena requir- ing the attendance of witnesses and the production of relevant papers and documents; a fair hearing; and an opportunity for appeal.

This relationship between public school teachers and their employ- ers is significantly different from that which operates in the private sector. Although workers in the private sector may have protection under con- tract law, union agreements, or governmental antidiscrimination provi- sions against arbitrary dismissal, when a private sector employee is not covered by these protections, specific grounds for dismissal do not have to be given. Nor do private sector employees, because their employment re- lationship is not with a government entity, have the protection of constitu- tional guarantees such as due process and equal protection.

BOARD OF REGENTS OF STATE COLLEGES v. ROTH

Supreme Court of the United States, 1972 408 U.S. 564

MR. JUSTICE STEWART del ivered the opinion of the Court. In 1968 the respondent, David Roth, was hired for his first teaching job

as assistant professor of political science at Wisconsin State University- Oshkosh. He was hired for a fixed term of one academic year. The notice of his faculty appointment specified that his employment would begin on September 1, 1968, and would end on June 30, 1969. The respondent com- pleted that term. But he was informed that he would not be rehired for the next academic year.

The respondent had no tenure rights to continued employment. Under Wisconsin statutory law a state university teacher can acquire tenure as a “permanent” employee only after four years of year-to-year employment. Having acquired tenure, a teacher is entitled to continued employment “dur- ing,efficiency and good behavior.” A relatively new teacher without tenure,

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however, is under Wisconsin law entitled to nothing beyond his one-year ap- pointment. There are no statutory or administrative standards defining eligi- bility for re-employment. State law thus clearly leaves the decision whether to rehire a nontenured teacher for another year to the unfettered discretion of university officials.

The procedural protection afforded a Wisconsin State University teacher before he is separated from the University corresponds to his job se- curity. As a matter of statutory law, a tenured teacher cannot be “discharged except for cause upon written charges” and pursuant to certain procedures. A nontenured teacher, similarly, is protected to some extent during his one- year term. Rules promulgated by the Board of Regents provide that a non- tenured teacher “dismissed” before the end of the year may have some opportunity for review of the “dismissal.” But the Rules provide no real pro- tection for a nontenured teacher who simply is not re-employed for the next year. He must be informed by February 1 “concerning retention or non- retention for the ensuing year.” But “no reason for non-retention need be given. No review or appeal is provided in such case.”

In conformance with these Rules, the President of Wisconsin State University-Oshkosh informed the respondent before February 1, 1969, that he would not be rehired for the 1969-1970 academic year. He gave the respondent no reason for the decision and no opportunity to challenge it at any sort of hearing.

The respondent then brought this action in Federal District Court alleg- ing that the decision not to rehire him for the next year infringed his Four- teenth Amendment rights. He attacked the decision both in substance and procedure. First, he alleged that the true reason for the decision was to pun- ish him for certain statements critical of the University administration, and that it therefore violated his right to freedom of speech. Second, he alleged that the failure of University officials to give him notice of any reason for nonretention and an opportunity for a hearing violated his right to proce- dural due process of law.

The District Court granted summary judgment for the respondent on the procedural issue, ordering the University officials to provide him with reasons and a hearing. * * * The Court of Appeals, with one judge dissent- ing, affirmed this partial summary judgment. * * * We granted certiorari. * * * The only question presented to us at this stage in the case is whether the respondent had a constitutional right to a statement of reasons and a hearing on the University’s decision not to rehire him for another year. We hold that he did not.

The requirements of procedural due process apply only to the depriva- tion of interests encompassed by the Fourteenth Amendment’s protection of liberty and property. When protected interests are implicated, the right to some kind of prior hearing is paramount. But the range of interests protected by procedural due process is not infinite.

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The District Court decided that procedural due process guarantees apply in this case by assessing and balancing the weights of the particular in-

terests involved. It concluded that the respondent’s interest in re-employment

at Wisconsin State University-Oshkosh outweighed the University’s interest in denying him re-employment summarily. * * * Undeniably, the respondent’s re-employment prospects were of major concern to himconcern that we

surely cannot say was insignificant. And a weighing process has long been a

part of any determination of the form of hearing required in particular situa- tions by procedural due process. But, to determine whether due process re- quirements apply in the first place, we must look not to the “weight” but to the nature of the interest at stake. * * * We must look to see if the interest is

within the Fourteenth Amendment’s protection of liberty and property. “Liberty” and “property” are broad and majestic terms. They are

among the “[g]reat [constitutional] concepts . . . purposely left to gather

meaning from experience . . . [T]hey relate to the whole domain of social and economic fact, and the statesmen who founded this Nation knew too well that only a stagnant society remains unchanged.” * * * For that reason,

the Court has fully and finally rejected the wooden distinction between “rights” and “privileges” that once seemed to govern the applicability of pro- cedural due process rights. The Court has also made clear that the property

interests protected by procedural due process extend well beyond actual ownership of real estate, chattels, or money. By the same token, the Court has required due process protection for deprivations of liberty beyond the

sort of formal constraints imposed by the criminal process. Yet, while the Court has eschewed rigid or formalistic limitations on

the protection of procedural due process, it has at the same time observed

certain boundaries. For the words “liberty” and “property” in the Due Pro-

cess Clause of the Fourteenth Amendment must be given some meaning. “While this Court has not attempted to define with exactness the liberty

.. guaranteed [by the Fourteenth Amendment], the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common oc- cupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized . . . as

essential to the orderly pursuit of happiness by free men.” * * * In a Consti-

tution for a free people, there can be no doubt that the meaning of “liberty”

must be broad indeed. * * * There might be cases in which a State refused to reemploy a person

under such circumstances that interests in liberty would be implicated. But

this is not such a case. The State, in declining to rehire the respondent, did not make any charge

against him that might seriously damage his standing and associations in his

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community. It did not base the nonrenewal of his contract on a charge, for ex- ample, that he had been guilty of dishonesty, or immorality. Had it done so, this would be a different case. For “[Mhere a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential.” * * * In such a case, due process would accord an opportunity to refute the charge before University of- ficials. In the present case, however, there is no suggestion whatever that the respondent’s “good name, reputation, honor, or integrity” is at stake.

Similarly, there is no suggestion that the State, in declining to reemploy the respondent, imposed on him a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities. The State, for example, did not invoke any regulations to bar the respondent from all other public employment in state universities. Had it done so, this, again, would be a different case. * * *

To be sure, the respondent has alleged that the nonrenewal of his con- tract was based on his exercise of his right to freedom of speech. But this al- legation is not now before us. The District Court stayed proceedings on this issue, and the respondent has yet to prove that the decision not to rehire him was, in fact, based on his free speech activities.

Hence, on the record before us, all that clearly appears is that the re- spondent was not rehired for one year at one university. It stretches the con- cept too far to suggest that a person is deprived of “liberty” when he simply is not rehired in one job but remains as free as before to seek another. * * *

The Fourteenth Amendment’s procedural protection of property is a safeguard of the security of interests that a person has already acquired in specific benefits. These interestsproperty interestsmay take many forms.

Certain attributes of “property” interests protected by procedural due process emerge from these decisions. To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined. It is a purpose of the constitutional right to a hearing to provide an opportunity for a person to vin- dicate those claims.

Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law rules or understandings that secure certain benefits and that support claims of entitlement to those benefits. Thus, the welfare recipients * * * had a claim of entitlement to welfare payments that was grounded in the statute defining eligibility for them. The recipients had not yet shown that they were, in fact, within the statutory terms of eligibility. But we held that they had a right to a hearing at which they might attempt to do so.

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Just as the welfare recipients’ “property” interest in welfare payments was created and defined by statutory terms, so the respondent’s “property” interest in employment at Wisconsin State University-Oshkosh was created and defined by the terms of his appointment. Those terms secured his inter- est in employment up to June 30, 1969. But the important fact in this case is that they specifically provided that the respondent’s employment was to ter- minate on June 30. They did not provide for contract renewal absent “suffi- cient cause.” Indeed, they made no provision for renewal whatsoever.

Thus, the terms of the respondent’s appointment secured absolutely no interest in re-employment for the next year. They supported absolutely no possible claim of entitlement to re-employment. Nor, significantly, was there any state statute or University rule or policy that secured his interest in re- employment or that created any legitimate claim to it. In these circumstances, the respondent surely had an abstract concern in being rehired, but he did not have a property interest sufficient to require the University authorities to give him a hearing when they declined to renew his contract of employment.

Our analysis of the respondent’s constitutional rights in this case in no way indicates a view that an opportunity for a hearing or a statement of rea- sons for nonretention would, or would not, be appropriate or wise in public colleges and universities. For it is a written Constitution that we apply. Our role is confined to interpretation of that Constitution.

We must conclude that the summary judgment for the respondent should not have been granted, since the respondent has not shown that he was deprived of liberty or property protected by the Fourteenth Amendment. The judgment of the Court of Appeals, accordingly, is reversed and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Notes and Questions

Roth was a five-to-three decision. In his dissent, Justice Douglas argued that:

. . Nonrenewal of a teacher’s contract is tantamount in effect to a dismissal and the consequences may be enormous. Nonrenewal can be a blemish that turns into a permanent scar and effectively limits any chance the teacher has of being rehired as a teacher, at least in his State.

Do you agree with his assessment? Why? Another United States Supreme Court decision dealt with an issue

that may have significance in states without tenure statutes. In that deci- sion, the Court held that if a teacher had de facto tenurean expectation of continued employment after many years of satisfactory service although a formal tenure system did not exista hearing could be requested to

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challenge grounds for nonretention. See Perry v. Sindermann, 408 U.S 593 (1972).

The United States Supreme Court upheld the dismissal of a tenured teacher who refused to comply with a continuing education policy requir- ing teachers who held only a bachelor’s degree to earn at least five semes- ter hours of college credit every three years. See Harrah Independent School District v. Martin, 440 U.S. 194 (1979).

A nontenured teacher’s nonrenewal was not upheld in Stoddard v. School District No. 1, 590 F.2d 829 (10th Cir. 1979). The teacher in this case was advised in a letter from her principal that her contract would not be renewed because of failure to maintain order in the classroom and lack of dynamics in motivating students. The teacher alleged that in a private con- versation the principal informed her that the “real” reasons for nonre- newal were (1) rumors regarding an affair with another resident of her trailer park, (2) her propensity for playing cards and not attending church regularly, and (3) her obesity, which was the “lack of dynamics” referred to in the letter.

A school district’s refusal to renew a teacher’s contract for violating a policy against outside employment was not upheld because the policy was not uniformly applied. See Gosney v. Sonora Independent School District, 603 F.2d 522 (5th Cir. 1979). The court declared that the district’s no- outside-employment policy was not itself unconstitutional.

The United States Supreme Court has upheld a New York statute for- bidding permanent certification as a public school teacher of any person who is not a United States citizen unless that person has manifested an in- tention to apply for citizenship. See Ambach v. Norwick, 441 U.S. 68 (1979).

State statutes often contain a catchall phrase such as “for other due and sufficient cause” as a ground for dismissal. The question of over- breadth and vagueness of such a phrase was discussed in diLeo v. Green- field, 541 F.2d 949 (2d Cir. 1976), and the court agreed that the phrase was too general.

A probationary teacher may not be dismissed at midyear except for the same reasons that a tenured teacher may be dismissed, such as lack of funding. Dismissal must be according to the procedures applicable to mid- year discharge of tenured teachers. See Taborn v. Hammonds, 350 S.E.2d 880 (N.C. Ct. App. 1986).

In the private sector, federal statutes protect union members from arbitrary dismissal and all private sector employees from discrimination based on race, color, religion, sex, age, national origin, or disability. Non- union employees in the private sector generally fall under the common-law “at-will employment” legal doctrine, which allows for dismissal without cause when the aforementioned discrimination is not involved. The doc- trine is followed in many states; yet, court actions in approximately forty states overall, especially in Alaska, California, Montana, and Wyoming, ap-

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pear to be modifying the doctrine. Those examining this area of law have coined the phrase “corporate due process” to describe it. Successful private-sector court challenges dealing with dismissal have involved an employee’s refusal to break a law, failure to discharge a long-service worker “fairly” or “in good faith,” improper notice of dissatisfaction, a bro- ken promise of job security, the false advertisement of a “permanent posi- tion,” and jury service. In an at-will case before the United States Supreme Court, Haddle v. Garrison, 525 U.S. 824 (1998), the Court stated a claim for damages could be brought for an alleged wrongful firing. Haddle alleged that his employer conspired to have him fired from his job in retaliation for obeying a federal grand jury subpoena and deter him from testifying at a federal criminal crime in which his employer was charged with Medicare fraud. In this instance, applicable federal law stated that if injury were in- curred to one’s “person or property,” damages could be recovered. In re- versing a lower court, which had held that there had to be injury to a “constitutionally protected property interest,” the Court held that although at-will employment is not “property” for purposes of the Due Process Clause, harm to one’s “person” may be a compensable injury.

Does your state have statutory provisions dealing with nonrenewal and dismissal of teachers? What are your local school system’s policies re- garding nonrenewal and dismissal?

II. FREEDOM OF EXPRESSION

Public school teachers’ status regarding their rights of freedom of expres- sion has received considerable court attention. Prior to this attention, sev- eral historic forces had contributed to the commonly held view that public employees, which included teachers, had a limited right of freedom of ex- pression. The strongest force contributing to this view was that public em- ployment was considered a privilege rather than a right. Although this distinction has been modified, the belief that public employment was a privilege had received considerable credibility, especially since 1892, as the result of Justice Holmes’ often-quoted statement, “The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.” This judicial view, coupled with the notion that the quid pro quo for government employees’ increased job security (a re- sult of the ravages of the spoils system), had the effect of allowing the for- feiture of certain constitutional rights. Formal restrictions of government employees’ political activities were embodied in the Hatch Act at the fed- eral level. Several states have enacted “little Hatch Acts,” and other states have statutory provisions restricting certain activities of state employees and/or teachers. Such legislation, combined with a judicial view that pub- lic employment was a privilege and not a right, tended to solidify the

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long-held contention that government employees, which included teach- ers, had a limited right of freedom of expression.

A heightened concern with individual rights during the 1960s,com- bined with a seemingly receptive federal judiciary, resulted in some teach- ers challenging the position that teachers had a limited right of freedom of expression. Several Supreme Court and lower court decisions have upheld the teachers’ contention.

Pickering v. Board of Education of Township High School District 205, a Supreme Court decision, established the principle that public school teachers have the First Amendment right of freedom of expression. Pick- ering was dismissed from his teaching position for writing a letter, pub- lished in a newspaper, critical of several of the school board’s actions. These included allocation of school funds between educational and athletic programs and the board’s and superintendent’s methods of informing, or neglecting to inform, the school district’s taxpayers of the real reasons why additional tax revenues were being sought for the schools. In attempting to balance the teacher’s interest as a citizen in making public comments, against the state’s interest in promoting the efficiency of its employees’ public services, the court struck the balance on the side of the teacher.

Another Supreme Court decision, Mt. Healthy City School District Board of Education v. Doyle, involved an untenured teacher who had been in an altercation with a colleague, argued with school cafeteria em- ployees, swore at students, and made obscene gestures to female pupils. He also called a radio station and provided them with a memorandum from the principal relating to teacher dress and appearance. Doyle alleged that his not being rehired was due to his exercising his First Amendment rights in calling the radio station. The Court, in vacating the lower court’s decision, reasoned that the proper test in such a case is whether or not the school board would have rehired the teacher even in “the absence of the protected conduct.”

A. Tenured Teacher’s Public Expression

PICKERING v. BOARD OF EDUCATION OF TOWNSHIP HIGH SCHOOL DISTRICT 205

Supreme Court of the United States, 1968 391 U.S. 563

MR. JUSTICE MARSHALL del ivered the opinion of the Court. Appellant Marvin L. Pickering, a teacher in Township High School Dis-

trict 205, Will County, Illinois, was dismissed from his position by the ap- pellee Board of Education for sending a letter to a local newspaper in connection with a recently proposed tax increase that was critical of the way

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in which the Board and the district superintendent of schools had handled past proposals to raise new revenue for the schools. Appellant’s dismissal resulted from a determination by the Board, after a full hearing, that the pub- lication of the letter was “detrimental to the efficient operation and adminis- tration of the schools of the district” and hence, under the relevant Illinois statute, * * * that “interests of the school require[d] [his dismissal].”

* * *

In February of 1961 the appellee Board of Education asked the voters of the school district to approve a bond issue to raise $4,875,000 to erect two new schools. The proposal was defeated. Then, in December of 1961, the Board submitted another bond proposal to the voters which called for the raising of $5,500,000 to build two new schools. This second proposal passed and the schools were built with the money raised by the bond sales. In May of 1964 a proposed increase in the tax rate to be used for educational purposes was submitted to the voters by the Board and was defeated. Finally, on September 19, 1964, a second proposal to increase the tax rate was sub- mitted by the Board and was likewise defeated. It was in connection with this last proposal of the School Board that appellant wrote the letter to the editor * * * that resulted in his dismissal.

Prior to the vote on the second tax increase proposal a variety of arti- cles attributed to the District 205 Teachers’ Organization appeared in the local paper. These articles urged passage of the tax increase and stated that failure to pass the increase would result in a decline in the quality of educa- tion afforded children in the district’s schools. A letter from the superinten- dent of schools making the same point was published in the paper two days before the election and submitted to the voters in mimeographed form the following day. It was in response to the foregoing material, together with the failure of the tax increase to pass, that appellant submitted the letter in ques- tion to the editor of the local paper.

The letter constituted, basically, an attack on the School Board’s han- dling of the 1961 bond issue proposals and its subsequent allocation of fi- nancial resources between the schools’ educational and athletic programs. It also charged the superintendent of schools with attempting to prevent teach- ers in the district from opposing or criticizing the proposed bond issue.

The Board dismissed Pickering for writing and publishing the letter. Pur- suant to Illinois law, the Board was then required to hold a hearing on the dis- missal. At the hearing the Board charged that numerous statements in the letter were false and that the publication of the statements unjustifiably impugned the “motives, honesty, integrity, truthfulness, responsibility and competence” of both the Board and the school administration. The Board also charged that the false statements damaged the professional reputations of its members and of the school administrators, would be disruptive of faculty discipline, and would tend to foment “controversy, conflict and dissension” among teachers, administrators, the Board of Education, and the residents of the district. * * *

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* * *

To the extent that the Illinois Supreme Court’s opinion may be read to suggest that teachers may constitutionally be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest in connection with the operation of the public schools in which they work, it proceeds on a premise that has been un- equivocally rejected in numerous prior decisions of this Court. * * * At the same time it cannot be gainsaid that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in gen- eral. The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees.

* * * Because of the enormous variety of fact situations in which criti- cal statements by teachers and other public employees may be thought by their superiors, against whom the statements are directed, to furnish grounds for dismissal, we do not deem it either appropriate or feasible to attempt to lay down a general standard against which all such statements may be judged. However, in the course of evaluating the conflicting claims of First Amendment protection and the need for orderly school administration in the context of this case, we shall indicate some of the general lines along which an analysis of the controlling interests should run.

An examination of the statements in appellant’s letter objected to by the Board reveals that they, like the letter as a whole, consist essentially of criticism of the Board’s allocation of school funds between educational and athletic programs, and of both the Board’s and the superintendent’s methods of informing, or preventing the informing of, the district’s taxpayers of the real reasons why additional tax revenues were being sought for the schools. The statements are in no way directed towards any person with whom ap- pellant would normally be in contact in the course of his daily work as a teacher. Thus no question of maintaining either discipline by immediate su- periors or harmony among coworkers is presented here. Appellant’s em- ployment relationships with the Board and, to a somewhat lesser extent, with the superintendent are not the kind of close working relationships for which it can persuasively be claimed that personal loyalty and confidence are nec- essary to their proper functioning. * * *

We next consider the statements in appellant’s letter which we agree to be false. The Board’s original charges included allegations that the pub- lication of the letter damaged the professional reputations of the Board and the superintendent and would foment controversy and conflict among the Board, teachers, administrators, and the residents of the district. How- ever, no evidence to support these allegations was introduced at the hear- ing. So far as the record reveals, Pickering’s letter was greeted by everyone

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but its main target, the Board, with massive apathy and total disbelief. The Board must, therefore, have decided, perhaps by analogy with the law of libel, that the statements were per se harmful to the operation of the schools.

However, the only way in which the Board could conclude, absent any evidence of the actual effect of the letter, that the statements contained therein were per se detrimental to the interest of the schools was to equate the Board members’ own interests with that of the schools. Certainly an ac- cusation that too much money is being spent on athletics by the administra- tors of the school system * * * cannot reasonably be regarded as per se detrimental to the district’s schools. Such an accusation reflects rather a dif- ference of opinion between Pickering and the Board as to the preferable manner of operating the school system, a difference of opinion that clearly concerns an issue of general public interest.

In addition, the fact that particular illustrations of the Board’s claimed undesirable emphasis on athletic programs are false would not normally have any necessary impact on the actual operation of the schools, beyond its tendency to anger the Board. For example, Pickering’s letter was written after the defeat at the polls of the second proposed tax increase. It could, there- fore, have had no effect on the ability of the school district to raise necessary revenue, since there was no showing that there was any proposal to increase taxes pending when the letter was written.

More importantly, the question whether a school system requires addi- tional funds is a matter of legitimate public concern on which the judgment of the school administration, including the School Board, cannot, in a society that leaves such questions to popular vote, be taken as conclusive. On such a question free and open debate is vital to informed decision-making by the electorate. Teachers are, as a class, the members of a community most likely to have informed and definite opinions as to how funds allotted to the opera- tion of the schools should be spent. Accordingly, it is essential that they be able to speak out freely on such questions without fear of retaliatory dismissal.

In addition, the amounts expended on athletics which Pickering re- ported erroneously were matters of public record on which his position as a teacher in the district did not qualify him to speak with any greater authority than any other taxpayer. The Board could easily have rebutted appellant’s er- rors by publishing the accurate figures itself, either via a letter to the same newspaper or otherwise. We are thus not presented with a situation in which a teacher has carelessly made false statements about matters so closely re- lated to the day-to-day operations of the schools that any harmful impact on the public would be difficult to counter because of the teacher’s presumed greater access to the real facts. Accordingly, we have no occasion to con- sider at this time whether under such circumstances a school board could reasonably require that a teacher make substantial efforts to verify the accu- racy of his charges before publishing them.

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What we do have before us is a case in which a teacher has made erro- neous public statements upon issues then currently the subject of public atten- tion, which are critical of his ultimate employer but which are neither shown nor can be presumed to have in any way either impeded the teacher’s proper performance of his daily duties in the classroom or to have interfered with the regular operation of the schools generally. In these circumstances we conclude that the interest of the school administration in limiting teachers’ opportunities to contribute to public debate is not significantly greater than its interest in lim- iting a similar contribution by any member of the general public.

* * *

In sum, we hold that, in a case such as this, absent proof of false state- ments knowingly or recklessly made by him, a teacher’s exercise of his right to speak on issues of public importance may not furnish the basis for his dis- missal from public employment. * * *

Notes

Justice Thurgood Marshall, who wrote the Pickering opinion, became the first black to be named to the Supreme Court. He was appointed by Presi- dent Johnson in 1967. He had been counsel for the National Association for the Advancement of Colored People and the NAACP Legal Defense and Educational Fund for twenty-five years. During that time, he argued many civil rights cases, including the 1954 landmark public school desegregation case, and he “won” twenty-nine out of the thirty-two cases in which he ap- peared before the Court. Justice Marshall resigned from the Court in 1991 and was replaced by Clarence Thomas in the same year.

Although the case did not involve educators, the United States Supreme Court, in Connick v. Myers, 461 U.S. 138 (1983), a five-to-four deci- sion, did not extend the Pickering rationale to a questionnaire circulated within a district attorney’s office. In this case, an assistant district attorney was transferred to different job responsibilities. In protest, she circulated among her coworkers a questionnaire related primarily to the transfer pol- icy. In approving her termination, the Court contended that protecting the circulation of the questionnaire would “require a public office to be run as a roundtable for employee complaints over internal office affairs” and that normal office functioning would be endangered. Additionally, the Court asserted: “When employee expression cannot be fairly considered as relat- ing to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amend- ment.” However, the majority reiterated the following caveat from Picker- ing: “Because of the enormous variety of fact situations in which critical statements by . . . public employees may be thought by their superiors . . .

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to furnish grounds for dismissal, we do not deem it either appropriate or feasible to lay down a general standard against which all such statements may be judged.”

Subsequent decisions have discussed a two-step process to deter- mine whether a teacher’s speech enjoys First Amendment protection. First, the disputed speech must address a matter of “public concern.” Second, the interests of the teacher must be balanced against the interests of the state as employer in rendering a public service through its employees. The second determination, known as the “Pickering balance,” may be based on: (1) the need for harmony in the office or workplace; (2) the need for a close working relationship between the speaker and coworkers and whether the speech in question undermines that relationship; (3) the time, place, and manner of the speech; (4) the context in which a dispute arises; (5) the de- gree of public interest in the speech; and (6) whether the speech impedes the employee’s ability to perform his or her duties. See Roberts v. Van Buren Public Schools, 773 F.2d 949 (8th Cir. 1985); Cox v. Dardanelle Public School District, 790 F.2d 668 (8th Cir. 1986); and Day v. South Park Independent School District, 768 F.2d 696 (5th Cir. 1985), cert. denied, 474 U.S. 1101 (1986).

A teacher’s use of satirical language allegedly demeaning female stu- dents in a letter to a high school newspaper, for which he was disciplined, was viewed by a court as commenting on a matter of public concern. See Seemuller v. Fairfax County School Board, 878 F.2d 1578 (4th Cir. 1989). The suspension of a high school coach for referring to team members as cow- ards to a reporter did not violate his free speech because such expression did not rise to the level of “public concern,” which is protected by the First Amendment. Conditions imposed for the soccer coach’s reinstatement, which were also held not to violate the coach’s First Amendment free speech or associational rights, included not communicating with coaches or players regarding soccer and not participating in or attending games, practices, award programs, or any other activities related to the soccer pro- gram. The coach’s ultimate termination from his extracurricular position, which he had held for over twenty-five years, was also upheld because he had no protected property interest in his position as extracurricular coach. See Brayton v. Monson Public Schools, 950 F. Supp. 33 (Mass. 1997). In an- other instance, a school superintendent who, though unsuccessfully, ac- tively supported a slate of school board members, contended that his subsequent suspension was in retaliation for exercising his First Amend- ment rights. In its decision, a court held that the superintendent’s free speech and political association rights were not violated and he was not deprived of his constitutionally protected property interest, nor denied due process, because he was fully compensated. See Kinsey v. Salado Inde- pendent School District, 950 F.2d 988 (5th Cir. 1992).

A teacher’s dismissal based on her privately expressed complaints and opinions to her principal was addressed in Givhan v. Western Line

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Consolidated School District, 439 U.S. 410 (1979). Here, the Court announced that teachers do not forfeit their protection against governmental abridge- ment of freedom of speech if they decide to express their views privately rather than publicly.

Pickering would not apply to private school teachers because a pri- vate school does not operate under the “color of the state.” Nor would pri- vate school teachers necessarily have the civil rights protections available to public school teachers. Rights of private school teachers would be gov- erned by their individual contracts with their school and the degree to which a linkage existed between a private school and the state or federal government. A private school was upheld in its dismissal of a high school teacher who wore a beard in violation of the school’s rules. The school’s participation in a state-operated teacher pensionfund did not sufficiently bring the school under the “color of the state.” See Johnson v. Pinkerton Academy, 861 F.2d 335 (1st Cir. 1988).

B. Nontenured Teacher’s Freedom of Expression

MT. HEALTHY CITY SCHOOL DISTRICT BOARD OF EDUCATION v. DOYLE

Supreme Court of the United States, 1977 429 U.S. 274

MR. JUSTICE REHNQUIST delivered the opinion of the Court. Respondent Doyle sued petitioner Mt. Healthy Board of Education in

the United States District Court for the Southern District of Ohio. Doyle claimed that the Board’s refusal to renew his contract in 1971 violated his rights under the First and Fourteenth Amendments to the United States Con- stitution. After a bench trial the District Court held that Doyle was entitled to reinstatement with backpay. The Court of Appeals for the Sixth Circuit af- firmed the judgment. * * *

* * * Doyle was first employed by the Board in 1966. He worked under one-

year contracts for the first three years, and under a two-year contract from 1969 to 1971. In 1969 he was elected president of the Teachers’ Association, in which position he worked to expand the subjects of direct negotiation be- tween the Association and the Board of Education. During Doyle’s one-year term as president of the Association, and during the succeeding year when he served on its executive committee there was apparently some tension in relations between the Board and the Association.

Beginning early in 1970, Doyle was involved in several incidents not directly connected with his role in the Teachers’ Association. In one instance, he engaged in an argument with another teacher which culminated in the

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other teacher’s slapping him. Doyle subsequently refused to accept an apol- ogy and insisted upon some punishment for the other teacher. His persis- tence in the matter resulted in the suspension of both teachers for one day, which was followed by a walk-out by a number of other teachers, which in turn resulted in the lifting of the suspensions.

On other occasions, Doyle got into an argument with employees of the school cafeteria over the amount of spaghetti which had been served him; referred to students in connection with a disciplinary complaint, as “sons of bitches”; and made an obscene gesture to two girls in connection with their failure to obey commands made in his capacity as cafeteria supervisor. Chronologically the last in the series of incidents which respondent was in- volved in during his employment by the Board was a telephone call by him to a local radio station. It was the Board’s consideration of this incident which the court below found to be a violation of the First and Fourteenth Amendments.

In February 1971, the principal circulated to various teachers a memo- randum relating to teacher dress and appearance, which was apparently prompted by the view of some in the administration that there was a rela- tionship between teacher appearance and public support for bond issues. Doyle’s response to the receipt of the memorandumon a subject which he apparently understood was to be settled by joint teacher-administration ac- tionwas to convey the substance of the memorandum to a disc jockey at WSAI, a Cincinnati radio station, who promptly announced the adoption of the dress code as a news item. Doyle subsequently apologized to the princi- pal, conceding that he should have made some prior communication of his criticism to the school administration.

Approximately one month later the superintendent made his custom- ary annual recommendations to the Board as to the rehiring of nontenured teachers. He recommended that Doyle not be rehired. The same recom- mendation was made with respect to nine other teachers in the district, and in all instances, including Doyle’s, the recommendation was adopted by the Board. Shortly after being notified of this decision, respondent requested a statement of reasons for the Board’s actions. He received a statement citing “a notable lack of tact in handling professional matters which leaves much doubt as to your sincerity in establishing good school relationships.” That general statement was followed by references to the radio station incident and to the obscene-gesture incident.

The District Court found that all of these incidents had in fact occurred. It concluded that respondent Doyle’s telephone call to the radio station was “clearly protected by the First Amendment,” and that because it had played a “substantial part” in the decision of the Board not to renew Dojde’s em- ployment, he was entitled to reinstatement with backpay. * * * The District Court did not expressly state what test it was applying in determining that the incident in question involved conduct protected by the First Amendment,

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but simply held that the communication to the radio station was such con- duct. The Court of Appeals affirmed in a brief per curiam opinion. * * *

Doyle’s claims under the First and Fourteenth Amendments are not de- feated by the fact that he did not have tenure. Even though he could have been discharged for no reason whatever, and had no constitutional right to a hear- ing prior to the decision not to rehire him, * * * he may nonetheless establish a claim to reinstatement if the decision not to rehire him was made by reason of his exercise of constitutionally protected First Amendment freedoms. * * *

That question of whether speech of a government employee is consti- tutionally protected expression necessarily entails striking “a balance be- tween the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Pick- ering v. Board of Education. There is no suggestion by the Board that Doyle violated any established policy, or that its reaction to his communication to the radio station was anything more than an ad hoc response to Doyle’s ac- tion in making the memorandum public. We therefore accept the District Court’s finding that the communication was protected by the First and Four- teenth Amendments. We are not, however, entirely in agreement with that court’s manner of reasoning from this finding to the conclusion that Doyle is entitled to reinstatement with backpay.

The District Court made the following “conclusions” on this aspect of the case:

“1) If a non-permissible reason, e.g., exercise of First Amendment rights, played a substantial part in the decision not to reneweven in the face of other permissible groundsthe decision may not stand (citations omitted).

“2) A non-permissible reason did play a substantial part. That is clear from the letter of the Superintendent immediately following the Board’s decision, which stated two reasonsthe one, the conversation with the radio station clearly protected by the First Amendment. A court may not engage in any limitation of First Amendment rights based on ‘tacethat is not to say that the “tactfulness” is irrelevant to other issues in this case.” * * *

At the same time, though, it stated that:

“[i]n fact, as this Court sees it and finds, both the Board and the Superintendent were faced with a situation in which there did exist in fact reason . . . inde- pendent of any First Amendment rights or exercise thereof, to not extend tenure.” * * *

Since respondent Doyle had no tenure, and there was therefore not even a state-law requirement of “cause” or “reason” before a decision could be made not to renew his employment, it is not clear what the District Court meant by this latter statement. Clearly the Board legally could have dis- missed respondent had the radio station incident never come to its attention. One plausible meaning of the court’s statement is that the Board and the

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Superintendent not only could, but in fact should have reached that decision had not the constitutionally protected incident of the telephone call to the radio station occurred. We are thus brought to the issue whether, even if that were the case, the fact that the protected conduct played a “substantial part” in the actual decision not to renew would necessarily amount to a constitu- tional violation justifying remedial action. We think that it would not.

A rule of causation which focuses solely on whether protected conduct played a part, “substantial” or otherwise, in a decision not to rehire, could place an employee in a better position as a result of the exercise of consti- tutionally protected conduct than he would have occupied had he done nothing. The difficulty with the rule enunciated by the District Court is that it would require reinstatement in cases where a dramatic and perhaps abra- sive incident is inevitably on the minds of those responsible for the decision to rehire, and does indeed play a part in that decisioneven if the same decision would have been reached had the incident not occurred. The con- stitutional principle at stake is sufficiently vindicated if such an employee is placed in no worse a position than if he had not engaged in the conduct. A borderline or marginal candidate should not have the employment ques- tion resolved against him because of constitutionally protected conduct. But that same candidate ought not to be able, by engaging in such conduct, to prevent his employer from assessing his performance record and reaching a decision not to rehire on the basis of that record, simply because the protected conduct makes the employer more certain of the correctness of its decision.

This is especially true where, as the District Court observed was the case here, the current decision to rehire will accord “tenure.” The long-term consequences of an award of tenure are of great moment both to the em- ployee and to the employer. They are too significant for us to hold that the Board in this case would be precluded, because it considered constitution- ally protected conduct in deciding not to rehire Doyle, from attempting to prove to a trier of fact that quite apart from such conduct Doyle’s record was such that he would not have been rehired in any event.

* * * Initially, in this case, the burden was properly placed upon respondent

to show that his conduct was constitutionally protected, and that this con- duct was a “substantial factor”or, to put it in other words, that it was a “motivating factor” in the Board’s decision not to rehire him. Respondent having carried that burden, however, the District Court should have gone on to determine whether the Board had shown by a preponderance of the evi- dence that it would have reached the same decision as to respondent’s reem- ployment even in the absence of the protected conduct.

We cannot tell from the District Court opinion and conclusions, nor from the opinion of the Court of Appeals affirming the judgment of the District Court, what conclusions those courts would have reached had they applied this test.

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The judgment of the Court of Appeals is therefore vacated, and the case re- manded for further proceedings consistent with this opinion.

So ordered.

Notes

The Court’s opinion in Doyle reaffirms the doctrine that nontenured teachers have First Amendment rights, and they may establish a claim to reinstatement if the reason for not being rehired was in violation of these rights. However, as the Court stresses, engaging in constitutionally pro- tected conduct may not prevent an employer from dismissing a teacher on the basis of his or her total performance record. Later decisions have re- ferred to using the total performance record in conjunction with constitu- tionally protected conduct as “mixed-motive” analysis. Prior to this decision, some administrators claimed that poorly performing employees would purposely engage in protected activities to claim that such action was the reason for their dismissal and not their alleged poor performance.

A probationary teacher may not be terminated solely for refusing to participate in a flag-salute ceremony. The teacher stood silently at atten- tion during daily classroom recitation of the pledge of allegiance, in which school regulations required her to participate. See Russo v. Central School District No. 1, 469 F.2d 623 (2nd Cir. 1972), cert. denied, 411 U.S. 932 (1973). However, see Palmer v. Board of Education of the City of Chicago, 603 F.2d 1271 (7th Cir. 1979), cert. denied, 444 U.S. 1026 (1980), which upheld the dis- charge of a teacher who, based on her Jehovah’s Witness faith, refused to lead her kindergarten students in patriotic exercises and failed to comply with certain aspects of the curriculum. In upholding the discharge, the court distinguished between the freedom to believe in certain religious tenets and following an appropriate curriculum.

III. ACADEMIC FREEDOM

Academic freedom is difficult to conceptualize definitively because its ex- tent is influenced by such factors as grade level and the nature of certain courses. Litigation often occurs when a school system’s views regarding academic freedom are not in congruence with a teacher’s perception of au- tonomy in determining specific subject matter for a particular class, appro- priate teaching methods, and the selection of appropriate materials. In this type of litigation, teachers generally allege that they have a constitutional right to present material to which students, parents, or school officials may object. Although courts have recognized that teachers have the right to aca-

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demic freedom, as with other constitutional rights, it is not absolute and must be balanced against the competing interests of the larger society.

A. Appropriate Material

FOWLER v. BOARD OF EDUCATION OF LINCOLN COUNTY

United States Court of Appeals, Sixth Circuit, 1987 819 F.2d 657

cert. denied, 484 U.S. 986 (1987)

MILBURN, Circuit Judge. Defendants, the Board of Education of Lincoln County, Kentucky, in-

dividual board members, and the Superintendent of the Lincoln County Schools, appeal from the judgment of the district court awarding reinstate- ment and damages to plaintiff Jacqueline Fowler on the ground that her em- ployment was terminated in violation of her First Amendment rights. Plaintiff cross-appeals on the ground that K.R.S. § 161.-790(1), which pro- scribes conduct unbecoming a teacher, is unconstitutionally vague as ap- plied to her conduct. For the reasons that follow, we vacate the judgment of the district court and dismiss plaintiff’s action.

Plaintiff Jacqueline Fowler was a tenured teacher employed by the Lin- coln County, Kentucky, school system for fourteen years. She was discharged in July, 1984 for insubordination and conduct unbecoming a teacher. The basis for this action was that she had an “R” rated movie, Pink FloydThe Wall, shown to her high school students on the last day of the 1983-84 school year. The students in Fowler’s classes were in grades nine through eleven and were of the ages fourteen through seventeen.

The day on which the movie was shown, May 31, 1984, was a non- instructional day used by teachers for completing grade cards. A group of students requested that Fowler allow the movie to be shown while she was completing the grade cards. Fowler was unfamiliar with the movie and asked the students whether it was appropriate for viewing at school. Charles Bailey, age fifteen, who had seen the movie on prior occasions, indicated that the movie had “one bad place in it.” * * *

* * *

When Fowler had the movie shown on the morning of May 31, 1984, she instructed Charles Bailey, the fifteen-year-old student who had seen the movie, to edit out any parts that were unsuitable for viewing at school. He did so by attempting to cover the 25″ screen with an 81h” by 11″ letter-sized file folder.

There is conflicting testimony as to whether, or how much, nudity was seen by the students. At the administrative hearing, several students testified

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that they saw no nudity. One student testified that she saw “glimpses” of nu- dity, but “nothing really offending.” * * * It is undisputed that the audio por- tion of the movie, which contained enough offensive language to mandate an automatic “R” rating under motion picture industry standards, was played through the entire movie.

There is also conflicting testimony regarding the amount of sexual in- nuendo existing in the “unedited” version of the film. Because some parts of the film are animated, they are susceptible to varying interpretations. One particularly controversial segment of scenes is animated in which flowers ap- pear on the screen, are transformed into the shape of male and female sex organs and then engage in an act of intercourse. This segment of the film was shown in the morning session. Other segments involving a violent rape, nu- dity, a suggestion of oral sex, and a naked woman and naked man in bed en- gaging in foreplay and intercourse were also shown in the morning.

* * *

In addition to the sexual aspects of the movie, there is a great deal of violence. One scene involves a bloody battlefield. Another shows police brutality. Another shows the protagonist cutting his chest with a razor. An- other scene shows children being fed into a giant sausage machine. * * *

* *

On July 10, 1984, plaintiff Fowler appeared with counsel at the ad- ministrative hearing. She testified that, despite the fact that she had never seen the movie before having it shown to her students, and despite the fact that she was posting grades on report cards and left the room several times while the movie was being shown, she believed it had significant value. She believed the movie portrayed the dangers of alienation between people and of repressive educational systems. She testified that she would show an edited version of the movie again if given the opportunity to explain it. She stated that she did not at any time discuss the movie with her students be- cause she did not have enough time.

The board viewed the movie once in its entirety and once as it had been edited in the classroom. The board then retired into executive session. Following this executive session, the board returned to open session and voted unanimously to terminate plaintiff’s employment for insubordination and conduct unbecoming a teacher.

* * * The district court concluded that Fowler’s conduct was protected by

the First Amendment, and that she was discharged for exercising her consti- tutionally protected rights. Consequently, it awarded her reinstatement, back pay with interest, reimbursement of funds necessary for her reinstatement with the Kentucky Teachers Retirement System, damages for emotional dis- tress and damage to professional reputation, compensatory damages for costs incurred in seeking new employment, costs, and attorney’s fees.

* * *

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The Supreme Court has consistently recognized the importance of the exercise of First Amendment rights in the context of public schools:

First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be ar- gued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistak- able holding of this Court for almost 50 years. Tinker, * * *

* * *

* * * Many courts have recognized that a teacher’s First Amendment rights encompass the notion of “academic freedom” to exercise professional judgment in selecting topics and materials for use in the course of the edu- cational process. * * *

Among the “special circumstances” which must be considered in defining the scope of First Amendment protection inside the classroom is the “inculcat[ion of] fundamental values necessary to the maintenance of a dem- ocratic political system.” * * *

Indeed, the “fundamental values necessary to the maintenance of a democratic political system” disfavor the use of terms of debate highly offensive or highly threatening to others. Nothing in the Constitution prohibits the states from insist- ing that certain modes of expression are inappropriate and subject to sanctions. The inculcation of these values is truly the “work of the schools.” Fraser * * *

The single most important element of this inculcative process is the teacher. Consciously or otherwise, teachers . . . demonstrate the appropriate form of civil discourse and political expression by their conduct and deport- ment in and out of class. Inescapably, like parents, they are role models. Fraser (emphasis supplied). * * *

The accommodation of these sometimes conflicting fundamental val- ues has caused great tension, particularly when the conflict arises within the classroom. * * * In the final analysis:

the ultimate goal of school officials is to insure that the discipline necessary to the proper functioning of the school is maintained among both teachers and stu- dents. Any limitation on the exercise of constitutional rights can be justified only by a conclusion, based upon reasonable inferences flowing from concrete facts and not abstractions, that the interests of discipline or sound education are ma- terially and substantially justified. . . . “The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in pro- moting the efficiency of the public services it performs through its employees.” James, 461 F.2d at 571-72 (quoting Pickering v. Board of Education)

* * * I conclude that Fowler’s conduct in having the movie shown under the

circumstances present here did not constitute expression protected by the

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First Amendment. It is undisputed that Fowler was discharged for the show- ing of the movie, Pink FloydThe Wall. Such conduct, under the circum- stances involved, clearly is not “speech” in the traditional sense of the expression of ideas through use of the spoken or written word.

* * *

In the present case, plaintiff Fowler had a fifteen-year-old student show a controversial, highly suggestive and somewhat sexually explicit movie to a group of high school students aged fourteen to seventeen. She did not pre- view the movie, despite the fact that she had been warned that portions were unsuitable for viewing in this context. She made no attempt at any time to explain the meaning of the movie or to use it as an educational tool. Rather, she had it shown for the purpose of keeping her students occupied during a noninstructional day while she Was involved in posting grades on report cards. We conclude that the statute proscribing “conduct unbecoming a teacher” gave her adequate notice that such conduct would subject her to discipline. Accordingly, we conclude that the statute is not unconstitution- ally vague as applied to Fowler’s conduct.

We conclude that plaintiff’s conduct, although not illegal, constituted serious misconduct. Moreover, there was a direct connection between this misconduct and Fowler’s work as a teacher. She introduced a controversial and sexually explicit movie into a classroom of adolescents without preview, preparation or discussion. In the process, she abdicated her function as an ed- ucator. Her having the movie shown under the circumstances involved demonstrates a blatant lack of judgment. Having considered the entire record, including the viewing of the movie, which we describe as gross and bizarre and containing material completely unsuitable for viewing by a classroom of students aged fourteen to seventeen, we conclude that such conduct falls within the concept of conduct unbecoming a teacher under Kentucky law.

Accordingly, for the reasons stated, the judgment of the district court is vacated, and this cause is dismissed.

MERRITT, Circuit Judge, dissenting. Federal judges and local school boards do not make good movie crit-

ics or good censors of movie content. What one judge sees as “gross and bizarre,” another may find, * * * mild and not very “sexually suggestive.”

The movie here seems to me to present a message similar to that ex- pounded by Dr. Spock: abuse of sex and drugs as well as various forms of mental instability and antisocial conduct are associated with an overly au- thoritarian society. The message is that unloving, overly rigid and authoritar- ian parents, teachers, judges and officials create disturbed individuals and societies. This lack of love is the figurative “wall” shown in the movie.

* * * * * * Mrs. Fowler was not discharged because she entertained her stu-

dents: she was discharged because the school board did not like the content

6,044, 6

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of the movie. Mrs. Fowler proved at trial * * * that she was discharged be- cause the board members regarded the movie as “immoral, antieducation, antifamily, antijudiciary, and antipolice.” There is no support for the propo- sitionor does the school board arguethat a teacher’s academic freedom or a student’s right to hear may be abridged simply because a school board dislikes the content of the protected speech. Furthermore, since this was a “free day” for the students, no departure from a board-mandated curriculum occurred. It is obvious, therefore, that Mrs. Fowler’s discharge was prompted by the content of the movie.

Assuming that the school board could have properly discharged Mrs. Fowler for poor judgment and lack of remorse in showing an “R-rated” movie which had short scenes depicting nudity and sexual foreplay, but not for the other reasons given, this case must be decided under the “mixed- motive” analysis of Mt. Healthy City School Dist. Bd. of Educ. v. Doyle. * * * Where a plaintiff can show that her constitutionally-protected conduct was a “substantial” or “motivating” factor in the discharge decision, the employer must prove “by a preponderance of the evidence that it would have reached the same decision as to . . . . re-employment even in the absence of the pro- tected conduct.” Mt. Healthy, * * *

* * *

In Cohen v. California * * * the Supreme Court held constitutionally protected the act of wearing a jacket bearing the words “!?X! the Draft” into a courthouse corridor. Writing for the Court, Justice Harlan stated that “while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man’s vul- garity is another’s lyric. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual.” * * *

Therefore, I disagree with the distinction between instruction and en- tertainment drawn by Judge Milburn and the conflation of vulgarity and anti- establishment ideas set forth by Judge Peck. As the District Court correctly found, the school board in this case had to negate the testimony of its own members that the determinative causative factor in Mrs. Fowler’s discharge was her decision to allow “antieducation, antifamily, antijudiciary, and anti- police” views to be expressed in her classroom. The District Court held that the school board failed to carry this Mt. Healthy burden. I agree with both of these findings. Therefore, I would affirm the judgment of the District Court.

Notes and Questions

A review of modern case law dealing with acadeinic freedom reveals that it is no longer as strong a defense as it once was for teachers. Recent decisions suggest that the concept of academic freedom provides more protection for

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a teacher for what is said outside the school as a private citizen than for what is said inside the classroom. For the academic freedom defense to pre- vail for classroom conduct, it must be shown that the teacher did not defy legitimate state and local curriculum directives, followed accepted profes- sional norms for that grade level and subject matter, discussed matters that were of public concern, and acted professionally and in good faith when there was no precedent or policy.

The majority held that Fowler ‘s conduct was not expressive or com- municative and therefore was not protected by the First Amendment. Ad- ditionally, they declared that the statute proscribing “conduct unbecoming a teacher” was not unconstitutionally vague. On the other hand, the dis- trict court judge and the dissenting court of appeals judge contended that the case should have been decided under the “mixed-motive” analysis of Mt. Healthy City School District Board of Education v. Doyle. Under such analysis, the burden switches to the defendant to show that the same decision to dismiss an employee would have been made even in the ab- sence of using constitutionally protected conduct. What is the distinction between these differing legal viewpoints?

A drama teacher ‘s reassignment due to her choice of plays for a statewide competition was upheld in Boring v. Buncombe County Board of Education, 136 F.3d 364 (4th Cir. 1998), a seven-to-six decision, by an en banc court. The controversial play dealt with a single-parent family in- cluding a divorced mother, a lesbian daughter, and an unmarried preg- nant daughter. The teacher claimed a First Amendment right to participate in the development of the school curriculum through the selection and production of the play; however, the majority opinion held that curricu- lum development should be left to the local school authorities rather than to teachers. In its decision, the court held that the play was a part of the curriculum and the choice of plays was not a matter of public concern, consequently, not protected speech, [citing Connick v. Myers, 461 U.S. 138 (1983)]; therefore, the school had a legitimate pedagogical interest in not allowing the play [citing Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988)]. Another teacher ‘s termination for allowing excessive profan- ity in her students’ creative projects was upheld in Lacks v. Ferguson Reor- ganized School District R-2, 147 F.3d 718 (8th Cir. 1998), cert. denied, 526 U.S. 1012 (1999). Words such as “fuck,” “shit,” “ass,” “bitch,” and “nigger” were used 150 times in a forty-minute videotape, and a student read a poem aloud in the classroom that contained profanity and graphic de- scriptions of oral sex. Although the teacher thought the district policy of not allowing student profanity in the classroom did not apply to creative projects, the court held that the school board had a legitimate interest in prohibiting such profanity and that the teacher could not claim her free speech rights were violated when she knowingly violating the district pol-

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icy. Race was introduced in this case, but there was insufficient evidence that her termination was race related. Lacks was white, and her supervi- sors and students were black.

School officials were sued for compelling students to attend a sexu- ally explicit AIDS (acquired immunodeficiency syndrome) awareness as- sembly at their public school without following school policy and state law requiring that parents be given advance notice and opportunity to opt-out of sex-education programs. In upholding school officials, a federal court of appeals held that conscience-shocking acts were not alleged that would have given rise to a claim for violation of substantive due process rights, even though the school officials’ failure to provide opt-out proce- dures displayed callousness towards the teenagers’ sensibilities. Further- more, the court declared that parents’ right to direct the upbringing and education of their children does not encompass a broad-based right to re- strict the flow of information in public schools. See Brown v. Hot, Sexy and Safer Productions, Inc., 68 F.3d 525 (1st Cir. 1995).

In another instance, a school board was upheld in its banning of a classroom management technique called “Learnball.” This technique in- cluded a sports format, peer approval, dividing a class into teams, student election of team leaders and assistant teacher, giving students responsibil- ity for establishing class rules and grading exercises, and imposing a sys- tem of rewards such as radio playing and shooting baskets with a foam ball in the classroom. The court held that the teacher did not have a First Amendment right of academic freedom to employ the technique and that the board’s ban was constitutional. See Bradley v. Pittsburgh Board of Educa- tion, 910 F.2d 1172 (3rd Cir. 1990). Also, see Murray v. Pittsburgh Board of Public Education, 919 F. Supp. 838 (Pa. 1996), in which school policy was upheld that prohibited using “Learnball” with at-risk students at an alter- native high school.

A Jewish student in a choir class alleged her music teacher’s choice of explicitly Christian religious music and Christian religious sites for per- formance of the high school a cappella choir violated her rights under the United States and Utah Constitutions. The court, in Bauchman v. West High School, 900 F. Supp. 254 (Utah 1995), held that these actions did not violate the student’s Establishment Clause rights because the teacher ‘s selection had the primary purpose of teaching music appreciation, and the effect of the curriculum was not to advance or promote religion or constitute ex- cessive entanglement. The court concluded that the choice of religious music, which was offensive to the student, did not automatically render its inclusion in the choir’s performance repertoire violative of the student’s free exercise rights, since the student would receive an “A” for the course and was expressly permitted to avoid classroom practice and performance of religious songs to which she objected. Additionally, the court noted that

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a cappella, to describe a choir, means “in the chapel” and that choral music is often associated with religion and is not automatically unconstitutional as excessive entanglement or primarily religious; nor, the court reasoned, were songs with religious content ipso facto equivalent of “prayer,” de- spite reference in some songs to “God” and the “Lord.”

Dissatisfaction with public education by parents, especially those concerned about replacing the teaching of a Judeo-Christian heritage with secularism and positivism (teaching only what can be scientifically proven) and those parents having the perception that the schools empha- size the teaching of politically correct values, has resulted in direct politi- cal attacks on curriculum initiatives. Parents holding such views have focused their attacks on such initiatives as so-called Mastery Learning and Outcomes Based Education. These parents often claim that the traditional Three Rs have been replaced by a new notion of the Three Rs, namely, re- production, recycling, and racism.

“Winning” a school law suit may, at times, be akin to the aphorism “winning a battle but losing the war.” An excellent example of this may be seen in the ultimate discontinuance of a popular elementary school read- ing series entitled Impressions, although two federal courts of appeal de- cisions, Fleischfresser v. Directors of School District 200, 15 F.3d. 680 (7th Cir. 1994) and Brown v. Woodland Joint Unified School District, 27 F.3d 1373 (9th Cir. 1994), held that the reading series did not promote the Wiccan religion in violation of the Establishment Clause. It had been alleged in the suits that the reading series presented religious concepts found in paganism and branches of witchcraft and Satanism. Notwithstanding these unsuc- cessful legal challenges and the fact that the Impressions series had been used in over 1,500 schools in thirty-four states, opposition to its use in many school districts, removal of the series by school boards in several in- stances, and refusal by four state textbook committees to allow the series onto their approved lists apparently had an enormous effect because the series has been withdrawn by the publisher.

A badly divided Supreme Court, as evidenced by seven separate opinions, addressed the issue of a school board’s authority to remove books from a school library. Although there was no majority opinion, the plural- ity opinion does offer some guidance. School authorities may not exercise their discretion in the removal of books for narrow partisan or political purposes or to deny students access to ideas with which school authorities disagree. Additionally, the justices suggested several constitutionally le- gitimate standards that could be applied in determining a book’s candi- dacy for removal, such as the book’s educational suitability. Specific suitability criteria could include relevance to the curriculum and appro- priateness for an age level. A book considered obscene for minors, perva-

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sively vulgar, or offensive in its language could also be legitimately ex- cluded. See Board of Education, Island Trees Union Free School District No. 26 v. Pico, 457 U.S. 853 (1982).

Removal of The Adventures of Huckleberry Finn and A Rose for Emily from a school’s curriculum because they contained the word “nigger” was held to violate students’ First Amendment rights in Monteiro v. Tempe Union High School District, 158 F.3d 1022 (9th Cir. 1998). Although the court recognized a history of racial prejudice towards blacks in America, it con- tended that removing such literary works would take away a school board’s discretion to establish an appropriate and educational curriculum and “. . . could have a chilling effect on a school district’s willingness to as- sign books with themes, characters, snippets of dialogue, or words that might offend the sensibilities of any number of persons or groups.” Citing specific examples of this, the court averred:

White plaintiffs could seek to remove books by Toni Morrison, Maya An- gelou, or other prominent black authors on the ground that they portray cau- casians in a derogatory fashion; Jews might try to impose civil liability for the teachings of Shakespeare … where writing exhibits a similar anti-Semitic strain. Female students could attempt to make a case for damages for the as- signment of some the works of Tennessee Williams, Hemingway, or Freud, and male students for the writings of Andrea Dworkin or Margaret Atwood. (p. 1030)

In an earlier decision, barring a textbook that contained Lysistrata by Artistophanes and the Miller’s Tale by Chaucer from an elective human- ities course in which the readings were optional has been upheld. The court reasoned, under the deferential standard established in Hazelwood School District v. Kuhlmeier, that the school board’s actions were reason- ably related to its legitimate pedagogical concerns regarding the appropri- ateness of such readings given their explicit sexuality and admittedly vulgar language. The court pointed out that the materials were still avail- able in the library and that the materials could be assigned or discussed in class. See Virgil v. School Board of Columbia County, 862 F.2d 1517 (11th Cir. 1988).

Apparently, academic freedom may be bargained away. A teachers’ association negotiated an agreement with a provision that the board shall have the right to “determine the processes, techniques, methods and means of teaching any and all subjects.” Several English teachers chal- lenged the school board’s action in directing that certain books not be pur- chased or assigned. The court held for the school board but contended it would have held for the teachers if the negotiated agreement had not ex- isted. See Cary v. Board of Education of AdamsArapahoe School District 28-J, 598 F.2d 535 (10th Cir. 1979).

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B. Political Speakers

WILSON v. CHANCELLOR United States District Court, District of Oregon, 1976

418 F. Supp. 1358

BURNS, District Judge. Plaintiffs Wilson and Logue seek declaratory and injunctive relief from

a school board order banning “all political speakers” from Molalla Union High School (MHS). They contend that the order violates the First Amend- ment and the equal protection clause of the Fourteenth Amendment, and is unconstitutionally vague and overbroad. * * *

Wilson teaches the political science class at MHS in which Logue was a student. This dispute arose when Wilson invited a Communist, Anton Kchmareck, to speak to that class. Wilson already and without objection had presented a Democrat, a Republican, and a member of the John Birch Soci- ety. The Communist was to be the last of this quadrumvirate through which Wilson hoped to present, in the words of the adherent, each of four points of view.

Wilson followed customary procedure and reported this invitation to the principal. The principal approved. Defendant school board discussed the invitation at its November 1975 meeting and also approved. This procedure was neither unprecedented nor customary.

The board’s approval inspired mixed reviews. Two severe critics called a community meeting on December 4 where they circulated a petition ask- ing the board to reverse the decision; approximately 800 persons eventually signed it. Several townsfolk, in letters to the newspaper, mentioned the pos- sibility of voting down all school budgets and voting out the members of the board.

Faced with this petition and many outraged residents, the board on De- cember 11 reversed its decision and issued orally an order banning “all po- litical speakers” from the high school.

* * * Miss Logue contends the order violates her First Amendment right to

hear the speech of others. The right to hear customarily is invoked by prisoners denied access to

periodicals, * * * members of a potential audience for a speaker prohibited from speaking, * * * or persons asserting either the public’s “right to know,” * * * or the emerging right of privacy * * * .

Of these cases, only the potential audience cases are applicable here. * * * These cases and my recognition that the First Amendment exists to pro- tect a broad range of interests persuade me that Logue suffered an infringe- ment of her First Amendment rights. * * *

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Few courts have considered whether and to what extent the First Amendment protects academic freedom. Honored in Germanic tradition and prominent in academic debates, the theory rarely surfaces in legal opin- ions. Moreover, even its most enthusiastic advocates usually distinguish be- tween the freedom to be accorded university professors and that to be accorded elementary and secondary school teachers. It seems to be assumed that the former engage in the search for knowledge and therefore should have far greater freedom than the latter who merely disseminate knowledge.

The Supreme Court of the United States has discussed academic free- dom in “eloquent and isolated statements.” * * * Lower courts have spoken more frequently, but none has clearly defined the theory’s legal contours. Nor will I. This case can be decided by using purely conventional freedom of expression analysis.

A teacher’s teaching is expression to which the First Amendment ap- plies. The right to freedom of expression is not absolute; it may be restricted, and restrictions on a teacher’s expression should be judged in light of the “special characteristics of the school environment.” * * *

In imposing restrictions and making other decisions, school boards should be allowed great discretion. No court should intervene merely be- cause a board’s decision seems unwise. But if school boards, in exercising their discretion, act so as to interfere impermissibly with the constitutional rights of students or teachers, or both, courts must and will intervene if their jurisdiction is properly invoked.

These considerations in mind, I address two pivotal questions: First, is a teaching method or vehicle a form of expression protected by the First Amendment? Second, if so, is the restriction at issue here reasonable?

Three cases have treated teaching methods as protected forms of expression: Keefe v. Geanakos, 418 F.2d 359 (1st Cir. 1969), Parducci v. Rut- land, 316 F. Supp. 352 (M.D. Ala. 1970), and Sterzing v. Fort Bend Indepen- dent School District, 376 F. Supp. 657 (S.D. Tex. 1972).

The teacher in Keefe assigned his class an Atlantic Monthly article con- taining a word which “admittedly highly offensive, is a vulgar term for an in- cestuous son.”

A school committee summoned Keefe to defend his conduct. When he was asked to agree not to use the word again, he declined. He subsequently was suspended, and sought a temporary injunction against the committee’s

dismissal hearing. The district court denied an interlocutory injunction pending a deci-

sion on the merits. The court of appeals reversed, holding that plaintiff had demonstrated he probably would succeed on his lack of notice and aca- demic freedom claims.

In Parducci, the teacher assigned her eleventh grade English class a Kurt Vonnegut, jr. short story, “Welcome to the Monkey House.” Several parents

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complained. School officials admonished the teacher not to use the story in any of her classes, and threatened to dismiss her if she refused. The teacher resigned. In her suit for injunctive relief she contended that the school’s action violated her First Amendment rights.

The court recognized such a right, but concluded that it must be bal- anced against competing societal interests, most prominently the “state’s vital interest in protecting its young people from any form of extreme propa- gandism in the classroom.” * * * The court also recognized that Tinker * * * requires the state to demonstrate that:

“[T]he forbidden conduct would ‘materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.’ ” * * *

The court then held that because the assignment was appropriate and pre- sented no threat of disruption, the teacher’s dismissal for assigning the short story violated her First Amendment rights.

In Sterzing a teacher disclosed to his civics class his lack of opposition to interracial marriage. After several parents complained, school officials urged Sterzing to confine his teaching to the assigned textbook. He ignored this re- quest and several times departed from the text during the ensuing five months. Shortly after Sterzing administered an allegedly propagandistic test on race re- lations, the school board voted to discharge him for insubordination.

The district court ordered that Sterzing be reinstated. It held that a teacher has a substantive right to choose teaching methods which serve a demonstrated educational purpose. “A responsible teacher,” wrote the court, “must have freedom to use the tools of his profession as he sees fit.” * * *

* *

These cases also recognize the validity of a popular maxim, “the medium is the message.” The expresser’s medium can affect the persuasive- ness of his message, the duration of its influence, and the size and type of au- dience which it reaches. The act of teaching is a form of expression, and the methods used in teaching are media. Wilson’s use of political speakers was his medium for teaching; similarly, the short story was Parducci’s medium, the pamphlets were Sterzing’s media, and the article containing the controversial words was Keefe’s medium. The various school boards which restricted the media employed by Wilson here, and by Keefe, Parducci, and Sterzing in the cases cited, suppressed expression which the First Amendment protects.

But the school boards may restrict teachers’ expression if the restric- tions are reasonable in light of the special circumstances of the school envi- ronment. Thus, question two: was this order reasonable?

I conclude that the order was not reasonable and therefore violated the First Amendment.

The order barred political speakers absolutely, yet no disruptions had occurred in Wilson’s classes, or at other school gatherings where political subjects were discussed. Further, none were expected in the future.

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The defendants have not shown that outside speakers impair high school education. If they did, the board still would lack justification for ban- ning only outside political speakers. Moreover, the evidence demonstrated that the use of outside speakers is widely recommended, widely practiced, and professionally accepted.

The boards cannot justify the ban by contending that political subjects are inappropriate in a high school curriculum. Political subjects frequently are discussed at Molalla High School and other schools throughout the country, as required by law. Nor does the board have a valid interest in sup- pressing, as it did, political expression occurring in the course of recognized extracurricular activities.

The board cannot contend it was acting within its discretionary power to exclude incompetent speakers. It acted under pressure from those who feared, rather than doubted, the speaker’s competence by banning all speak- ers without regard to competence.

The board’s only apparent reason for issuing the order which sup- pressed protected speech was to placate angry residents and taxpayers. The First Amendment forbids this; neither fear of voter reaction nor personal dis- agreement with views to be expressed justifies a suppression of free expres- sion, at least in the absence of any reasonable fear of material and substantial

interference with the educational process. The order, by granting school officials discretion to bar political speak-

ers before those persons speak, creates a system of prior restraint. Prior restraints are not unconstitutional per se, but their invalidity is

heavily presumed. * * * They are valid only if they include criteria to be followed by school authorities in determining whether to allow or forbid the expression and procedural safeguards in the form of an expeditious review procedure. * * *

The Molal la board order was completely bare; it failed to include ei- ther criteria by which to define “political speakers” or procedural safeguards in any form.

The order therefore constitutes an invalid prior restraint. Although our language contains many words and phrases which require no further defini- tion, the phrase “political speakers” is not among them. * * *

* * * Classifications which restrain conduct protected by the First Amend-

ment are unconstitutional unless they suitably further an appropriate gov- ernmental interest. * * * Appropriate governmental interests include the desire to promote effective education by preventing material disruptions of classroom work, substantial disorders, or invasions of the rights of others, * * * or by averting a clear and present danger * * *.

Because I already have concluded that the order did not further any ap- propriate governmental interests, and therefore violated the First Amend- ment, I must also conclude that it violated the equal protection clause. The

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order exists to silence absolutely the expression of an unpopular political view, solely out of fear that some will listen. This the government, acting through the school board, cannot do.

The board discriminated in a third way. It allowed Wilson to invite a Republican, a Democrat, and a member of the John Birch Society to speak to his class, but it forbade him from inviting a Communist.

The effect was discriminatory. Persons with palatable views could speak; those with less readily digestible views could not.

An order prohibiting Wilson from inviting a Republican to class after a Democrat had spoken there clearly would be discriminatory. That Wilson in- vited a Communist rather than a champion of the current political orthodoxy has no constitutional significance.

I do not imply that members of a community now may sue to compel schools to open their doors to particular outside speakers. Such compulsion would restrict a teacher’s freedom rather than protect it, contrary to the im- portant policies that I have outlined.

Nor do I suggest that Federal courts stand ready to regulate the regimen and to control the curricula of our public schools. A teacher is not required to have outside speakers contribute to class. I hold only that this regulation, as it applied in this particular set of facts, does not withstand constitutional scrutiny.

And I do not malign the defendant board members. Their position is sen- sitive, at once both a challenge and an opportunity. They serve a community in which many persons equate Communism with violence, deception, and im- perialism. Yet violence, deception, and imperialism have occurred under many flags and in the name of many creeds. School boards could eliminate much of the high schools’ curricula by restricting them to theories, philoso- phies, and practices of resolutely pacifistic, honest, non-expansionist societies.

It seems these same residents fear that young Molallans will become young Marxists and Maoists, virtually overnight. Because Oregon law * * * requires the schools to specially emphasize our form of government, respect for the flag, and obedience to our laws, this fear seems ill-founded. More- over, today’s high school students are surprisingly sophisticated, intelligent, and discerning. They are far from easy prey to even the most forcefully ex- pressed, cogent, and persuasive words.

Finally, I am firmly convinced that a course designed to teach students that a free and democratic society is superior to those in which freedoms are sharply curtailed will fail entirely if it fails to teach one important lesson: that the power of the state is never so great that it can silence a man or woman simply because there are those who disagree. Perhaps that carries with it a second lesson: that those who enjoy the blessings of a free society must oc- casionally bear the burden of listening to others with whom they disagree, even to the point of outrage.

* * *

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Questions

Who has the ultimate authority to decide what will or will not take place in a classroom? a teacher? building-level administrators? central office ad- ministrators? the local school board? state department of education? state legislature? the Department of Education? courts? What factors would in- fluence your decision? Does the grade level and/or nature of the subject matter being taught affect the decision?

IV. DRUG TESTING

In their reaction to the prevalence of drugs in American society, some school systems have attempted to screen teachers for drug use. When such screening policies are contested as a violation of a teacher’s rights under the Fourth Amendment, courts must balance the privacy interests of teach- ers with the government’s interest in having a drug-free environment. Courts take several factors into consideration when attempting to balance these competing interests, including: the intrusiveness of the search, the extent of an alleged drug problem; the degree of suspicion that triggered the search; and whether a “special needs” exception exists in a particular situation that would overcome the need for individualized suspicion. The court in Knox County Education Association v. Knox County Board of Educa- tion, 158 F.3d 361 (6th Cir. 1998), cert. denied 528 U.S. 812 (1999), determined the Fourth Amendment was not violated by a two-pronged policy that re- quired (1) suspicionless drug testing for all individuals who apply for, transfer to, or are promoted to, “safety sensitive” positions within the school system, (safety sensitive positions include principals, assistant prin- cipals, teachers, traveling teachers, teacher aides, substitute teachers, school secretaries and bus drivers) and (2) “reasonable suspicion” drug and/or alcohol testing of all school employees. In upholding supicionless drug testing, the court emphasized: the unique role teachers play in the lives of their students and in the in loco parentis obligations imposed on them; the “safety sensitive” aspect of providing a safe and secure environ- ment for students; and that teachers’ privacy interests are diminished by their working in a highly regulated profession. The court also noted that the suspicionless drug testing policy did not include a random testing component and only tested those people who were candidates for, and at- tempting to transfer to, a select group of positions. Once the initial test was passed, there was no ongoing testing. The court found the “reasonable suspicion” feature of the second prong of the school’s policy dealing with drugs, within the reasonableness requirement of the Fourth Amendment, because a search under this policy was clearly based upon a finding of in- dividualized suspicion.

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In United Teachers of New Orleans v. Orleans Parish School Board, 142 F.3d 853 (5th Cir. 1998), a rule was challenged that required teachers and other school employees injured in the course of employment to submit to drug testing. In holding the rule violative of the Fourth Amendment, the court held that there had not been any identified problem of drug use by teachers, their aides, or clerical workers. Additionally, the court stated, “there is an insufficient nexus between suffering an injury at work and drug impairment.”

Termination of a teacher for insubordination, who refused to take a drug test within two hours after a partially burned marijuana cigarette was found in her car in the school’s parking lot, was upheld in Hearn v. Sa- vannah Board of Education, 191 F.3d 1329 (11th Cir.1999). Themarijuana was discovered by a drug-sniffing dog during a campus-wide “drug lock down.” The car was unlocked and the passenger side window open. Under the district’s “Drug-Free Workplace Policy” and “zero tolerance” approach to drugs, the teacher was required to take the test within a two- hour limit of an incident that generated “reasonable suspicion.” The pol- icy also provided for immediate discharge for failing to cooperate by refusing to submit to testing.

Three United States Supreme Court decisions, although not dealing with school personnel, shed light on the drug testing issue. A Georgia statute requiring candidates for certain state offices to submit and pass a drug test within 30 days prior to qualifying for office was held to be un- constitutional in Chandler v. Miller, 520 U.S. 305 (1997). In its decision, the Court held that suspicionless testing did not meet the Fourth Amend- ment’s “special needs” exception to overcome the need for individualized suspicion of wrongdoing because there was no evidence of a drug prob- lem among state officeholders. In Skinner v. Railway Executives’ Association, 489 U.S. 602 (1989), the Court upheld blood and urine tests for train crews, in cases of train accidents involving fatalities or release of hazardous mate- rial, without the necessity of showing individualized grounds for suspi- cion. Additionally, the Court opined that individual suspicion may be dispensed with when the individual’s privacy interests are minimal and when an important governmental interest furthered by the intrusion would be placed in jeopardy by requiring individual suspicion. The Court, in National Treasury Employees’ Union v. Von Raab, 489 U.S. 656 (1989), has also upheld mandatory drug testing for all applicants for employment with the Customs Service for positions in which the duties involve drug interdiction, enforcement of related laws, and the carrying of firearms. Ad- ditionally, courts have upheld the testing of employees who work on nat- ural gas and hazardous liquid pipelines, IBEW Local 1245 v. Skinner, 913 F.2d 1454 (9th Cir. 1990), and random urinalysis testing ofairline person- nel with safety responsibilities, Bluestein v. Skinner, 908 F.2d 451 (9th Cir. 1990), cert. denied 498 U.S. 1083 (1991).

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V. PERSONAL APPEARANCE

Personal appearance of teachers in respect to dress and grooming has re- ceived considerable attention in the courts. School authorities generally contend that proper dress and grooming establish a professional image for teachers, promote good grooming among students, and aid in the mainte- nance of respect and decorum in the classroom. Teachers, in contrast, gen- erally allege that local regulations governing their personal appearance invade their rights of privacy and liberty. Issues raised in these conflicts have included the wearing of “long” hair, sideburns, or a beard for males; wearing of a tie and/or jacket for males; and improper skirt length or im- modest attire for females.

EAST HARTFORD EDUCATION ASSOCIATION v. BOARD OF

EDUCATION OF TOWN OF EAST HARTFORD United States Court of Appeals, Second Circuit, 1977

562 F.2d 838

Before KAUFMAN, Chief Judge, and SMITH, FEINBERG, MANSFIELD, MULLIGAN, OAKES, TIMBERS, GURFEIN, VAN GRAAFEILAND and MES-

KILL, Circuit Judges. On petition for Rehearing En Banc MESKILL, Circuit Judge: Although this case may at first appear too trivial to command the at-

tention of a busy court, it raises important issues concerning the proper scope of judicial oversight of local affairs. The appellant here, Richard Brim- ley, is a public school teacher reprimanded for failing to wear a necktie while teaching his English class. Joined by the teachers union, he sued the

East Hartford Board of Education, claiming that the reprimand for violating the dress code deprived him of his rights of free speech and privacy. Chief Judge Clarie granted summary judgment for the defendants. * * * A divided panel of this Court reversed and remanded for trial. At the request of a mem-

ber of the Court, a poll of the judges in regular active service was taken to determine if the case should be reheard en banc. A majority voted for re- hearing. We now vacate the judgment of the panel majority and affirm the

judgment of the district court: The facts are not in dispute. In February, 1972, the East Hartford Board

of Education adopted “Regulations for Teacher Dress.” At that time, Mr. Brim-

ley, a teacher of high school English and filmmaking, customarily wore a jacket and sport-shirt, without a tie. His failure to wear a tie constituted a

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violation of the regulation and he was reprimanded for his delict. Mr. Brim ley appealed to the school principal and was told that he was to wear a tie while teaching English, but that his informal attire was proper during filmmaking classes. He then appealed to the superintendent and the board without suc- cess, after which he began formal arbitration proceedings, which ended in a decision that the dispute was not arbitrable. This lawsuit followed. Although Mr. Brim ley initially complied with the code while pursuing his remedies, he has apparently returned to his former mode of dress. * * *

In the vast majority of communities, the control of public schools is vested in locally-elected bodies. This commitment to local political bodies re- quires significant public control over what is said and done in school. * * * It is not the federal courts, but local democratic processes, that are primarily re- sponsible for the many routine decisions that are made in public school sys- tems. Accordingly, it is settled that “[c]ourts do not and cannot intervene in the resolution of conflicts which arise in the daily operation of school systems and which do not directly and sharply implicate basic constitutional values.” * * *

Because the appellant’s clash with his employer has failed to “directly and sharply implicate basic constitutional values,” we refuse to upset the policies established by the school board.

Mr. Brim ley claims that by refusing to wear a necktie he makes a state- ment on current affairs which assists him in his teaching. In his brief, he ar- gues that the following benefits flow from his tielessness:

(a) He wishes to present himself to his students as a person who is not tied to “establishment conformity.”

(b) He wishes to symbolically indicate to his students his association with the ideas of the generation to which those students belong, including the re- jection of many of the customs and values, and of the social outlook, of the older generation.

(c) He feels that dress of this type enables him to achieve closer rapport with his students, and thus enhances his ability to teach.

Appellant’s claim, therefore, is that his refusal to wear a tie is “symbolic speech,” and, as such, “is protected against governmental interference by the First Amendment.”

We are required here to balance the alleged interest in free expression against the goals of the school board in requiring its teachers to dress some- what more formally than they might like. * * * When this test is applied, the school board’s position must prevail.

Obviously, a great range of conduct has the symbolic, “speech-like” aspect claimed by Mr. Brim ley. To state that activity is “symbolic” is only the beginning, and not the end, of constitutional inquiry. * * * Even though in- tended as expression, symbolic speech remains conduct, subject to regula- tion by the state. * * *

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As conduct becomes less and less like “pure speech” the showing of governmental interest required for its regulation is progressively lessened. * * * In those cases where governmental regulation of expressive conduct has been struck down, the communicative intent of the actor was clear and “closely akin to ‘pure speech.’ ” * * * Thus, the First Amendment has been held to protect wearing a black armband to protest the Vietnam War, * * * burning an American Flag to highlight a speech denouncing the govern- ment’s failure to protect a civil rights leader, * * * or quietly refusing to recite the Pledge of Allegiance. * * *

In contrast, the claims of symbolic speech made here are vague and unfocused. Through the simple refusal to wear a tie, Mr. Brim ley claims that he communicates a comprehensive view of life and society. It may well be, in an age increasingly conscious of fashion, that a significant portion of the population seeks to make a statement of some kind through its clothes. * * * However, Mr. Brimley’s message is sufficiently vague to place it close to the “conduct” end of the “speech-conduct” continuum described above. * * * While the regulation of the school board must still pass constitutional muster, the showing required to uphold it is significantly less than if Mr. Brim ley had been punished, for example, for publicly speaking out on an issue concern- ing school administration. * * *

At the outset, Mr. Brim ley had other, more effective means of commu- nicating his social views to his students. He could, for example, simply have told them his views on contemporary America; if he had done this in a tem- perate way, without interfering with his teaching duties, we would be con- fronted with a very different First Amendment case. * * * The existence of alternative, effective means of communication, while not conclusive, is a factor to be considered in assessing the validity of a regulation of expressive conduct. * * *

Balanced against appellant’s claim of free expression is the school board’s interest in promoting respect for authority and traditional values, as well as discipline in the classroom, by requiring teachers to dress in a profes- sional manner. A dress code is a rational means of promoting these goals.* * *

This balancing test is primarily a matter for the school board. Were we local officials, and not appellate judges, we might find Mr. Brim ley’s argu- ments persuasive. However, our role is not to choose the better educational policy. We may intervene in the decisions of school authorities only when it has been shown that they have strayed outside the area committed to their discretion. If Mr. Brim ley’s argument were to prevail, this policy would be completely eroded. Because teaching is by definition an expressive activity, virtually every decision made by school authorities would raise First Amend- ment issues calling for federal court intervention.

The very notion of public education implies substantial public control. Educational decisions must be made by someone; there is no reason to

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create a constitutional preference for the views of individual teachers over those of their employers. * * * The First Amendment claim made here is so insubstantial as to border on the frivolous. We are unwilling to expand First Amendment protection to include a teacher’s sartorial choice.

Mr. Brim ley also claims that the “liberty” interest grounded in the due process clause of the Fourteenth Amendment protects his choice of attire. * * * This claim will not withstand analysis.

* * *

* * * If Mr. Brimley has any protected interest in his neckwear, it does not weigh very heavily on the constitutional scales. As with most legislative choices, the board’s dress code is presumptively constitutional. It is justified by the same constitutional concerns for respect, discipline and traditional values described in our discussion of the First Amendment claim.

The rights of privacy and liberty in which appellant seeks refuge are important and evolving constitutional doctrines. To date, however, the Supreme Court has extended their protection only to the most basic personal decisions.* * * Nor has the Supreme Court been quick to expand these rights to new fields. * * * As with any other constitutional provision, we are not given a “roving commission” to right wrongs and impose our notions of sound policy upon society. There is substantial danger in expanding the reach of due process to cover cases such as this. By bringing trivial activities under the constitutional umbrella, we trivialize the constitutional provision itself. If we are to maintain the vitality of this new doctrine, we must be care- ful not to “cry wolf” at every minor restraint on a citizen’s liberty. * * *

The two other Courts of Appeals which have considered this issue have reached similar conclusions. In Miller v. School District, 495 F.2d 658 (7th Cir. 1974), the Seventh Circuit upheld a grooming regulation for teachers.* * *The First Circuit reached the same result in Tardif v. Quinn, 545 F.2d 761 (1st Cir. 1976), where a school teacher was dismissed for wearing short skirts.* * *

Both Miller and Tardif are stronger cases for the plaintiff’s position than the instant case. Both involved dismissals rather than, as here, a reprimand. Moreover, Miller involved a regulation of hair and beards, as well as dress. Thus, Miller was forced to appear as his employers wished both on and off the job. In contrast, Mr. Brimley can remove his tie as soon as the school day ends. If the plaintiffs in Miller and Tardif could not prevail, neither can Mr. Brimley.

Each claim of substantive liberty must be judged in the light of that case’s special circumstances. In view of the uniquely influential role of the public school teacher in the classroom, the board is justified in imposing this regulation. As public servants in a special position of trust, teachers may properly be subjected to many restrictions in their professional lives which would be invalid if generally applied. * * * We join the sound views of the First and Seventh Circuits, and follow Kelley [425 U.S. 238 (1976), a chal- lenge to a police department’s hair grooming regulations], by holding that a

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school board may, if it wishes, impose reasonable regulations governing the appearance of the teachers it employs. There being no material factual issue to be decided, the grant of summary judgment is affirmed.

Notes and Questions

Other federal courts of appeals have held similarly to the East Hartford de- cision. Some observers find it incongruous that school authorities have more control over teachers’ dress than they do over students’ dress. How would you explain this seeming incongruity? As a practical matter, although au- thorities have been successful in the courts, teacher dress is no longer the contentious issue it once was and a “rule of reason” appears to prevail.

VI. TEACHER AS EXEMPLAR

Not too many years ago, a teacher’s lifestyle was determined to a large ex- tent by a school system’s formal or informal, often rigid, rules. An exam- ple is Rules of Conduct for Teachers, which was published by a local West Virginia Board of Education in 1915:

Rules of Conduct for Teachers

1. You will not marry during the term of your contract. 2. You are not to keep company with men. 3. You must be home between the hours of 8:00 P.M. and 6:00 A.M. unless at-

tending a school function. 4. You may not loiter downtown in ice cream stores. 5. You may not travel beyond the city limits unless you have the permission

of the chairman of the board. 6. You may not ride in a carriage or automobile with any man unless he is

your father or brother. 7. You may not smoke cigarettes. 8. You may not dress in bright colors. 9. You may under no circumstances dye your hair.

10. You must wear at least two petticoats. 11. Your dresses must not be any shorter than two inches above the ankle. 12. To keep the schoolroom neat and clean, you must sweep the floor at least

once daily; scrub the floor at least once a week with hot, soapy water; clean the blackboards at least once a day, and start the fire at 7:00 A.M. so the room will be warm by 8:00 A.M.

Not all schoolteachers worked under such restrictive rules. However, a be- lief had developed over the years that teachers should act as examples to their charges and that they should be exemplars to their students in such areas as dress, grooming, the social amenities, and morals.

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Although it may at times have been difficult for a teacher to uphold the community’s view of exemplary conduct, this expectation was gener- ally well known to the teacher. In those days, a teacher knew that improper dress or grooming, being seen drunk in public, and, for females, divorce would result not only in school authorities’ disapproval but possibly in dis- missal. The same rules applied to extramarital affairs, “improper” or “im- moral” conduct on the part of single teachers, and homosexuality.

In the contemporary world, changing life-styles and frequent lack of agreement regarding not necessarily exemplary but merely “proper” con- duct may make it difficult for a teacher to know when a norm is trans- gressed or exceeds school authorities’ or a community’s zone of acceptance. This problem is further heightened by the fact that teacher conduct thatmay be tolerated in a metropolitan area may not be condoned in a small town with a homogeneous population that considers itself conservative.

In examining controversial life-styles, courts have taken several fac- tors into consideration including whether the conduct was criminal or im- moral under a state statute, hampered teacher effectiveness, was based on unsubstantiated rumors, or infringed on the teacher’s freedom of expres- sion. Courts have demonstrated a reluctance to enforce or bar conduct solely on the basis of conformity, historical precedent, or “expert” opinion. However, in today’s environment, dismissal of adulterous teachers, un- married and pregnant teachers, or an unmarried teacher living with a per- son of the opposite sex is rarely brought before the courts.

A male tenured elementary school teacher who underwent sex- reassignment surgery to change his external anatomy to that of a female was dismissed because there was a fear that retention would have an ad- verse effect on the students. The legal issue the court had to address was whether the “incapacity” of the teacher, a term used in the state statute as grounds for dismissal, can be established by a teacher’s allegedly having an adverse effect on the students. In its decision, the court in In re Gross- man, 316 A.2d 39 (N.J. Super. Ct. App. Div. 1974), determined that a trans- sexual teacher who had been sexually reassigned could create anxieties among younger children and have a negative effect on their mental health. However, the court stressed that the decision applied only to this school system and expressed no opinion with respect to her fitness to teach else- where and under different circumstances than revealed in this case.

A. Homosexual Teacher

In the earliest cases dealing with claims by homosexual teachers of their denial of a teaching position, dismissal, or certificate revocation, court de- cisions generally upheld the school authorities. However, several recent decisions have tended to uphold the rights of homosexual teachers. And,

Teachers and the Law 21 7

in several states, state legislation and/or local ordinances protect homo- sexuals’ employment rights.

GAYLORD v. TACOMA SCHOOL DISTRICT NO. 10

Supreme Court of Washington, 1977 559 P.2d 1340, cert. denied,

434 U.S. 879 (1977)

HOROWITZ, Associate Justice. Plaintiff-appellant, James Gaylord, appeals a judgment of the trial court

upholding Gaylord’s discharge from employment as a high school teacher by defendant school district. * * *

* * * We need consider only the assignments of error which raise two basic

issues: (1) whether substantial evidence supports the trial court’s conclusion plaintiff-appellant Gaylord was guilty of immorality; (2) whether substantial evidence supports the findings, that as a known homosexual, Gaylord’s fit- ness as a teacher was impaired to the injury of the Wilson High School, jus- tifying his discharge by the defendant school district’s board of directors. The relevant findings of the trial court may be summarized as follows.

Gaylord knew of his homosexuality for 20 years prior to his trial, ac- tively sought homosexual company for the past several years, and partici- pated in homosexual acts. He knew his status as a homosexual, if known, would jeopardize his employment, damage his reputation and hurt his parents.

Gaylord’s school superior first became aware of his sexual status on October 24, 1972, when a former Wilson High student told the school’s vice-principal he thought Gaylord was a homosexual. The vice-principal confronted Gaylord at his home that same day with a written copy of the stu- dent’s statement. Gaylord admitted he was a homosexual and attempted un- successfully to have the vice-principal drop the matter.

On November 21, 1972, Gaylord was notified the board of directors of the Tacoma School Board had found probable cause for his discharge due to his status as a publicly known homosexual. This status was contrary to school district policy No. 4119(5), which provides for discharge of school employees for “immorality.” After hearing, the defendant board of directors discharged Gaylord effective December 21, 1972.

The court found an admission of homosexuality connotes illegal as well as immoral acts, because “sexual gratification with a member of one’s own sex is implicit in the term ‘homosexual.’ ” These acts were proscribed by RCW 9.79.120 (lewdness) and RCW 9.79.100 (sodomy).

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After Gaylord’s homosexual status became publicly known, it would and did impair his teaching efficiency. A teacher’s efficiency is determined by his relationship with his students, their parents, the school administration and fellow teachers. If Gaylord had not been discharged after he became known as a homosexual, the result would be fear, confusion, suspicion, parental concern and pressure on the administration by students, parents and other teachers.

The court concluded “appellant was properly discharged by respon- dent upon a charge of immorality upon his admission and disclosure that he was a homosexual” and that relief sought should be denied.

Was Gaylord guilty of immorality? Our concern here is with the meaning of immorality in the sense in-

tended by school board policy No. 4119(5). School boards have broad man- agement powers. * * * Under RCW 28A.58.100(1) the school board may discharge teachers for “sufficient cause.” Policy No. 4119(5) adopted by the school board and in effect during the term of Gaylord’s teaching contract with defendant school district permits the Tacoma School Board of Directors to treat “immorality” as sufficient cause for discharge.

“Immorality” as used in policy No. 4119(5) does not stand alone. RCW 28A.67.110 makes it the duty of all teachers to “endeavor to impress on the minds of their pupils the principles of morality, truth, justice, temperance, hu- manity, and patriotism. . . .” RCW 28A.70.140 requires an applicant for a teacher’s certificate be “a person of good moral character.” RCW 28A.70.160 makes “immorality” a ground for revoking a teacher’s certificate. Other grounds include the commission of “crimes against the laws of the state.” The moral conduct of a teacher is relevant to a consideration of that person’s fit- ness or ability to function adequately as a teacher of the students he is ex- pected to teachin this case high school students. * * *

“Immorality” as a ground of teacher discharge would be unconstitu- tionally vague if not coupled with resulting actual or prospective adverse performance as a teacher. * * * The basic statute permitting discharge for “sufficient cause” (RCW 38A.58.100(1)) has been construed to require the cause must adversely affect the teacher’s performance before it can be in- voked as a ground for discharge. * * *

When, as in the case here, the term “immorality” has not been defined in policy No. 4119(5), it would seem reasonable to give the term its ordinary, common, everyday meaning as we would when construing an undefined term in a statute. * * *

* * *

The medical and psychological and psychiatric literature on the sub- ject of homosexuality distinguishes between the overt homosexual and the passive or latent homosexual. An overt homosexual has homosexual incli- nations consciously experienced and expressed in actual homosexual be-

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havior as opposed to latent. A latent homosexual is one who has “an erotic inclination toward members of the same sex, not consciously experienced or expressed in overt action; opposite of overt.” * * *

* * * In the instant case Gaylord “admitted his status as a homosexual” * * *

[a]nd “from appellant’s own testimony it is unquestioned that homosexual acts were participated in by him, although there was no evidence of any overt act having been committed.” * * *

This rule of construction concerning his admission of homosexuality is supported by evidence that Gaylord was and had been a homosexual for 20 years. He also testified that in the 2-year period before his discharge, he ac- tively sought out the company of other male homosexuals and participated actively as a member of the Dorian Society (a society of homosexuals). He responded to a blind advertisement in the society’s paper for homosexual company. He concealed his homosexuality from his parents until compelled to reveal it by the present dispute.

If Gaylord meant something other than homosexual in the usual sense, he failed to explain what he meant by his admission of homosexu- ality or being a homosexual so as to avoid any adverse inference, although he had adequate opportunity at trial to do so. He clearly had a right to ex- plain that he was not an overt homosexual and did not engage in the con- duct the court ascribed to him which the court found immoral and illegal. Evidence that explains the admission or qualifies it is clearly admissible. * * * There was uncontroverted evidence plaintiff was a competent and in- telligent teacher so the court could reasonably assume Gaylord knew what homosexuality could mean. It was not a word to be thoughtlessly or lightly used. Gaylord’s precaution for 20 years to keep his status of being a ho- mosexual secret from his parents is eloquent evidence of his knowledge of the serious consequences attendant upon an undefined admission of homosexuality.

He testified that in June 1970 he realized that if he was “ever going to have [homosexual] friends . . . that I needed, that I was going to have to make more efforts of my own to find these people because I wasn!t going to stum- ble across them by accident as I expected.” It was about that time he joined the Dorian Society. He testified he “felt very comfortable with the people there.” Eventually he began to attend a good many of their functions. On one occasion a high school boy conferred with the plaintiff about homosexuality and learned that plaintiff was “deeply involved” for a period of a month with a person whose advertisement he had answered. It would have been a simple matter for Gaylord to have explained the physical side, if any, of his relation- ship but he did not do so.

Our next inquiry is whether homosexuality as commonly understood is considered immoral. Homosexuality is widely condemned as immoral and was so condemned as immoral during biblical times. * * *

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A sociologist testified in the instant case: “A majority of people and adults in this country react negatively to homosexuality.” A psychiatrist testi- fied “I would say in our present culture and certainly, in the last few hundred years in Western Europe and in America this [homosexuality] has been a frightening idea. . . .”

The court found “sexual gratification with a member of one’s own sex is implicit in the term ‘homosexual.’ ” * * * This finding would not necessar- ily apply to latent homosexuals, however, the court in effect found from the evidence and reasonable inferences therefrom, it applied to Gaylord. These actssodomy and lewdnesswere crimes during the period of Gaylord’s employment and at the time of his discharge. * * *

Volitional choice is an essential element of morality. One who has a disease, for example, cannot be held morally responsible for his condition: Homosexuality is not a disease, however. Gaylord’s witness, a psychiatrist, testified on cross-examination that homosexuality except in a case of hor- monal or congenital defect (not shown to be present here) is not inborn. Most homosexuals have a “psychological or acquired orientation.” Only recently the Board of the American Psychiatric Association has stated: “ho- mosexuality . . . by itself does not necessarily constitute a psychiatric dis- order.” * * *

Nevertheless it is a disorder for those who wish to change their homo- sexuality which is acquired after birth. In the instant case plaintiff desired no change and has sought no psychiatric help because he feels comfortable with his homosexuality. He has made a voluntary choice for which he must be held morally responsible. * * *

The remaining question on this point is whether the repeal of the sodomy statute (RCW 9.79.100), while this case was pending, deprives sodomy of its immoral character. In the first place the repeal did not go into effect until July 1, 1976, sometime after Gaylord’s discharge. Sodomy be- tween consenting adults is no longer a crime. * * * Generally the fact that sodomy is not a crime no more relieves the conduct of its immoral status than would consent to the crime of incest.

The next question is whether the plaintiff’s performance as a teacher was sufficiently impaired by his known homosexuality to be the basis for dis- charge. The court found that Gaylord, prior to his discharge on December 21, 1972, had been a teacher at the Wilson High School in the Tacoma School District No. 10 for over 12 years, and had received favorable evalu- ations of his teaching throughout this time. * * *

First, he argues his homosexuality became known at the school only after the school made it known and that he should not be responsible there- fore so as to justify his discharge as a homosexual. The difficulty with this ar- gument is twofold. First, by seeking out homosexual company he took the risk his homosexuality would be discovered. It was he who granted an inter- view to the boy who talked to him about his homosexual problems. The boy

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had been referred to Gaylord for that purpose by the homosexual friend to whom Gaylord had responded favorably in answering his advertisement in the paper of the Dorian Society. As a result of that interview the boy came away with the impression plaintiff was a homosexual and later told the as- sistant high school principal about the matter. The latter in turn conferred with plaintiff for the purpose of verifying the charge that had been made. It was the vice-principal’s duty to report the information to his superiors be- cause it involved the performance capabilities of Gaylord. The school can- not be charged with making plaintiff’s condition known so as to defeat the school board’s duty to protect the school and the students against the im- pairment of the learning process in all aspects involved.

Second, there is evidence that at least one student expressly objected to Gaylord teaching at the high school because of his homosexuality. Three fellow teachers testified against Gaylord remaining on the teaching staff, testifying it was objectionable to them both as teachers and parents. The vice- principal and the principal, as well as the retired superintendent of instruc- tion, testified his presence on the faculty would create problems. There is conflicting evidence on the issue of impairment but the court had the power to accept the testimony it did on which to base complained of findings. * * * The testimony of the school teachers and administrative personnel constituted substantial evidence sufficient to support the findings as to the impairment of the teacher’s efficiency.

It is important to remember that Gaylord’s homosexual conduct must be considered in the context of his position of teaching high school students. Such students could treat the retention of the high school teacher by the school board as indicating adult approval of his homosexuality. It would be unreasonable to assume as a matter of law a teacher’s ability to perform as a teacher required to teach principles of morality * * * is not impaired and cre- ates no danger of encouraging expression of approval and of imitation. Like- wise to say that school directors must wait for prior specific overt expression of homosexual conduct before they act to prevent harm from one who chooses to remain “erotically attracted to a notable degree towards persons of his own sex and is psychologically, if not actually disposed to engage in sexual activity prompted by this attraction” is to ask the school directors to take an unacceptable risk in discharging their fiduciary responsibility of managing the affairs of the school district.

* * * It must be shown that “the conduct of the individual may reason- ably be expected to interfere with the ability of the person’s fitness in the job or against the ability to discharge its responsibility.” * * *These principles are similar to those applicable here. The challenged findings and conclusions are supported by substantial evidence.

Affirmed.

DOLLIVER, Associate Justice (dissenting).

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The appellant, Mr. Gaylord, had been a teacher at Wilson High School for over 12 years at the time of his discharge. In college, he had been an out- standing scholar: he graduated Phi Beta Kappa from the University of Wash- ington and was selected “Outstanding Senior” in the political science department. He later received a masters degree in librarianship. As a teacher, the evaluations made of Mr. Gaylord were consistently favorable. The most recent evaluation of this teaching performance stated that “Mr. Gaylord con- tinues his high standards and thorough teaching performance. He is both a teacher and student in his field.”

Despite this outstanding record, the trial court found that Mr. Gaylord should be discharged for “immorality.” To uphold this dismissal, we must find substantial evidence supporting the finding that Mr. Gaylord was dis- charged for “sufficient cause.”

There is not a shred of evidence in the record that Mr. Gaylord partici- pated in any of the acts stated above. While we have held in the past that “sufficient cause” requires certain conduct * * * , we are presented here with a record showing no illegal or immoral conduct; we have only an admis- sion of a homosexual status and Gaylord’s testimony that he sought male companionship. * * *

Undoubtedly there are individuals with a homosexual identity as there are individuals with a heterosexual identity, who are not sexually active. Mr. Gaylord, for all we know, may be one of these individuals. Certainly in this country we should be beyond drawing severe and far-reaching inferences from the admission of a statusa status which may be no more than a state of mind. Furthermore, there are homosexual activities involving a physical relationship which are not prohibited by statute. * * *

The trial court made a most puzzling finding that, “From appellant’s own testimony it is unquestioned that homosexual acts were participated in by him, although there was no evidence of any overt acts having been com- mitted.” The trial court essentially found that, as an admitted homosexual, unless Mr. Gaylord denied doing a particular immoral or illegal act, he can be assumed to have done the act. The court has placed upon the appellant the burden to negate what it asserts are the implications that may be drawn from his testimony although he never was accused of participating in acts of sodomy or lewdness.

We must require here, as we have done in the past, proof of conduct to justify a dismissal. The only conceivable testimony on conduct was the com- ment of the student that Gaylord and another male were “deeply involved” for about a month. This hardly qualifies as testimony either as to “immoral- ity,” sodomy or lewdness. Finding no conduct, I am unwilling to take the leap in logic accepted by the majority that admission of a status or identity implies the commission of certain illegal or immoral acts.

4 t) U

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Surely the majority has adopted a novel approach. Mr. Gaylord was never at any time accused of performing any “homosexual acts.” Yet because of his declared status, he must assume the burden of proving he did not com- mit certain illegal or immoral acts which have at no time been referred to or mentioned, much less described, by the school board. Presumably under this reasoning, an unmarried male who declares himself to be heterosexual will be held to have engaged in “illegal or immoral acts.” The opportunities for industrious school districts seem unlimited.

The majority goes to great lengths to differentiate between an overt and a latent homosexual. Authority is cited that overt homosexuality is “con- sciously experienced and expressed in actual homosexual behavior.” Yet there is no evidence in the record of any actual behavior of acts, and the find- ings of the trial court specifically state “there was no evidence of any overt act having been committed.” The real problem faced by the majority is that the term “homosexual” is not mentioned once in the Revised Code of Washing- ton. There is no law in this state against being a homosexual. All that is banned (prior to July 1, 1976) are certain acts, none of which Mr. Gaylord was alleged to have committed and none of which can it be either assumed or inferred he committed simply because of his status as a homosexual.

The second glaring error in this proceeding is the respondent’s failure to establish that Mr. Gaylord’s performance as a teacher was impaired by his homosexuality. As pointed out by the trial court in its findings, the evidence is quite clear that, having been a homosexual for the entire time he taught at Wilson High School, the fact of Mr. Gaylord’s homosexuality did not impair his performance as a teacher. In other words, homosexuality per se does not preclude competence. * * *

The evidence before the court is uncontrovertedMr. Gaylord carefully kept his private life quite separate from the school. * * * He made no sexual advances toward his professional contemporaries or his students. There is ab- solutely no evidence that Mr. Gaylord failed in any way to perform the duties listed in RCW 28A.67.11 O. In over 12 years of teaching at the same school, his best friends on the teaching staff were unaware of his homosexuality until the time of his discharge. Gaylord did not use his classroom as a forum for discussing homosexuality. Given the discretion with which Gaylord con- ducted his private life, it appears that public knowledge of Gaylord’s homo- sexuality occurred, as the trial court found, at the time of his dismissal. * * *

At the trial, a variety of witnesses speculated on the effect that Gay- lord’s homosexuality might have on his effectiveness in the classroom. The speculation varied considerably. Certainly there were witnesses who testified that Gaylord’s effectiveness would be damaged. There were also those who testified to the contrary. As a result, the trial court found that “the continued employment of appellant after he became known as a homosexual would re- sult, had he not been discharged, in confusion, suspicion, fear, expressed

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parental concern and pressure upon the administration.” The question this court must ask is whether a finding of detrimental effect can be made on the basis of conjecture alone.

Historically, the private lives of teachers have been controlled by the school districts in many ways. There was a time when a teacher could be fired for a marriage, a divorce, or for the use of liquor or tobacco. * * * Al- though the practice of firing teachers for these reasons has ceased, there are undoubtedly those who could speculate that any of these practices would have a detrimental effect on a teacher’s classroom efficiency as well as cause adverse community reaction. I find such speculation to be an unacceptable method for justifying the dismissal of a teacher who has a flawless record of excellence in his classroom performance. * * *

What if Mr. Gaylord’s status was as a black, a Roman Catholic, or a young heterosexual single person, instead of a male homosexual? Would his dismissal be handled in such a manner? Mere speculation coupled with sta- tus alone is not enough. * * * In this finding, substitute the words “black” or “female” for “homosexual” and the defect of the majority approach is brought into sharp focus.

* * *

Notes and Questions

Gaylord turned on the issues of unfitness and immorality Other issues in the earliest cases addressed whether or not knowledge of a teacher’s ho- mosexuality brought about such a high degree of notoriety and undue at- tention to the teacher and the school that it rendered him or her unfit to teach. The early decisions based on these issues were uniformly unfavor- able to homosexuals who were denied positions, dismissed, or had certifi- cates revoked. See Jantz v. Muci, 976 F.2d 623 (10th Cir. 1992), cert. denied, 508 U.S. 952 (1993), Gish v. Board of Education of the Borough of Paramus, 366 A.2d 1337 (1977), cert. denied, 434 U.S. 879 (1977); Board of Education of Long Beach Unified School District v. Jack M., 566 P.2d 602 (Cal. 1977); Burton v. Cascade School District Union High School No. 5,512 F.2d 850 (9th Cir. 1975); Acanfora v. Board of Education of Montgomery County, 491 F.2d 498 (4th Cir. 1974), cert. denied, 419 U.S. 836 (1974), McConnell v. Anderson, 451 F.2d 193 (8th Cir. 1971); and Morrison v. State Board of Education, 461 P.2d 375 (Cal. 1969). Recent decisions, however, have increasingly turned on freedom-of- expression issues; namely, whether teachers may publicly express their sexual preferences or advocate homosexuality

A nontenured vocational guidance counselor informed several col- leagues that she was bisexual and had a female lover. In upholding her nonrenewal, a federal appellate court held that her First Amendment

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rights had not been violated. In citing Connick v. Myers, 461 U.S. 138 (1983), the court stated, “If a public employee’s statement cannot be fairly charac- terized as constituting speech on a matter of public concern, it is unneces- sary to scrutinize the reasons for the discharge.” The court opined that the teacher was speaking in her personal interest and that there was no evi- dence of any public concern in the high school or community with the issue of bisexuality among school personnel. See Rowland v. Mad River School District, 730 F.2d 444 (6th Cir. 1984), cert. denied, 470 U.S. 1009 (1985).

The U.S. Court of Appeals for the Tenth Circuit upheld a portion of an Oklahoma statute proscribing homosexual activity, but it declared un- constitutional the portion prohibiting the advocacy of such activity. Specif- ically, the court found fault with a section that barred “advocating, soliciting, imposing, encouraging or promoting public or private homo- sexual activity in a manner that creates a substantial risk that such conduct will come to the attention of school children or school employees. . . .” The court stated that this provision purported to regulate “pure speech” and that the First Amendment protects advocacy of legal as well as illegal con- duct as long as such advocacy does not incite imminent lawlessness. See National Gay Task Force v. Board of Education of Oklahoma City, 729 F.2d 1270 (10th Cir. 1984), aff’d by an equally divided Court, 470 U.S. 903 (1985).

Homosexual teachers have prevailed in two decisions decided in the late 1990s. In Glover v. Williamsburg Local School District Board of Education, 20 F.Supp.2d 1160 (Ohio 1998), a gay teacher claimed his nonrenewal was based on discrimination because of his sexual orientation. The court found that administrators and board members had acted on the basis of false ru- mors that he had held hands at school with his partner during a holiday party. In its decision, the court criticized the defendants for accepting the rumor as fact, not confronting Glover with the rumors, lowering evalua- tions of Glover due in large part to the defendants’ reliance on false ru- mors, and board members’ testimony that was contradictory and not entirely credible. The court held that he was discriminated against by the board’s action and stated that: “Homosexuals, while not a ‘suspect class’ for equal protection analysis, are entitled to at least the same protection as any other identifiable group which is subject to disparate treatment by the state.” Glover received $46,492 for lost salary for two years, $25,000 for an- guish and humiliation, in addition to attorneys fees and costs. In Weaver v. Nebo School District, 29 F.Supp.2d 1279 (Utah 1998) a school district sought to restrict a lesbian teacher’s right to express her sexual orientation outside the classroom in addition to not rehiring her as volleyball coach. In its de- cision, the court found that the a community’s perception about Weaver based on nothing more than unsupported assumptions, outdated stereo- types, and animosity did not furnish a rational basis for not rehiring her as volleyball coach. Regarding her free speech restriction, the court held: “As impermissible as it is to restrict a state employee’s right to speak on a

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matter of public concern, it is equally impermissible to retaliate against that employee when he or she does indeed speak on a matter of public concern.” The court ordered that Weaver be offered the volleyball coach- ing position and that letters requesting her not to discuss her homosexual- ity be removed from her personnel file.

Nationwide, the issue of gay rights continues to be increasingly con- troversial. An examination of governmental action reveals endeavors that may be described as being both pro- and anti-gay. Anti-gay actions include federal and state legislation that does not recognize gay marriage and court approval of the military policy requiring separation from service of homosexuals. In 1996, the Defense of Marriage Act was passed, which stated that the federal government would not recognize gay marriages and allowed states to refuse to recognize such marriages licensed in other states. Presently, more than 30 states have passed laws denying recogni- tion of same-sex marriages. The military’s policy of “Don’t Ask, Don’t Tell” for homosexuals, which if violated, provides for discharge from the military, has been upheld by several federal appellate courts. See, for in- stance, Thomasson v. Perry, 80 F.3d 915 (4th Cir. 1996), cert. denied, 519 U.S. 948 (1996) and Able v. United States, 155 F.3d 628 (2nd Cir. 1998). In these cases, the courts have upheld separation from the service if a person has stated that he or she is a homosexual.

There has also been governmental action that may be perceived as being pro-gay, resulting in homosexuals receiving protections and rights that they heretofore did not have. Presently, ten states (California, Con- necticut, Hawaii, Massachusetts, Minnesota, New Hampshire, New Jersey, Rhode Island, Vermont, and Wisconsin) and the District of Columbia have passed laws prohibiting discrimination on the basis of sexual orientation in such areas as employment, housing, public accommodations, educa- tion, and credit. Several cities have passed antidiscrimination ordinances aimed at broadening employment protection for homosexuals by focusing on “job relatedness” as a basis for dismissal. In 2000, Vermont’s legislature authorized “civil unions,” which extended spousal rights for gay couples to areas covered by state law. Antisodomy statutes, which existed in all 50 states as recently as the 1960s, are coming under increased legal and leg- islative pressure. Presently, sodomy statutes that prohibit consensual sodomy among same-sex couples remain in only a handful of states. Teachers were often dismissed on the basis of their violating such statutes. Romer v. Evans, 517 U.S. 620 (1996) was instrumental in the drive to repeal antisodomy laws. In that case, the Court held that an amendment to Col- orado’s constitution, prohibiting any legislation or judicial action designed to protect the status of a person based on sexual orientation, violated the Fourteenth Amendment. The Court noted that the “inevitable inference” that arises from laws of this sort is that it is “born of animosity toward the class of persons affected.”

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Governmental actions that are designed to protect the rights of ho- mosexuals in the larger population have special significance for the legal status of homosexuals employed in education. Striking down sodomy statutes, allowing “civil unions,” and passing laws or ordinances that pro- hibit discrimination based on sexual orientation make it difficult, if not im- possible, in states having taken these measures, to uphold the denial of employment or the discharge of homosexuals.

In retrospect, have the public schools had an unofficial “Don’t Ask, Don’t Tell” policy over the years? A reading of several early decisions reveals that some courts held that teaching effectiveness was impaired if homosexual teachers brought undue attention to themselves by acknowl- edging their sexual orientation. Did this suggest that homosexuality among teachers was acceptable if it was not admitted or overt? Would Gaylord be decided the same way today? Would geography be a major factor?

B. Adulterous Teacher

ERB v. IOWA STATE BOARD OF PUBLIC INSTRUCTION

Supreme Court of Iowa, 1974 216 N.W.2d 339

McCORMICK, Justice. In this appeal plaintiff Richard Arlan Erb challenges the revocation of

his teaching certificate. The certificate was revoked by defendant Board of Educational Examiners after a hearing on July 16, 1971. Erb brought an ac- tion in certiorari alleging the board’s action was illegal. After the trial the writ of certiorari was annulled. Erb appealed. We reverse.

* * *

Erb, a native Iowan, military veteran, and holder of a master’s degree in fine arts, received his Iowa teaching certificate in 1963. Since then he has taught art in the Nishna Valley Community School which serves an area in- cluding the towns of Strahn, Emerson, Hastings, and Stanton. He resides in Emerson, is married and has two young sons. In addition to teaching he has coached wrestling, assisted with football, and acted as senior class sponsor.

The complaint against Erb was made by Robert M. Johnson, a farmer whose wife Margaret taught home economics in the Nishna Valley School. Johnson told the board his goal was removal of Erb from the school and not revocation of his teaching certificate. He read an extensive statement in which he detailed his observations relating to an adulterous liaison between Erb and Johnson’s wife which began and ended in spring 1970.

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Margaret planned to quit teaching and open a boutique in Red Oak. Her association with Erb began in early spring when he agreed to assist her with design of the store. They saw each other often. By May, Johnson became suspicious of Margaret’s frequent late-night absences from home. He sus- pected Margaret and Erb were meeting secretly and engaging in illicit activity in the Johnson automobile. One night in May he hid in the trunk of the car. Margaret drove the car to school, worked there for some time, and later drove to a secluded area in the country where she met Erb. Margaret and Erb had sexual intercourse in the back seat of the car while Johnson remained hidden in the trunk. Johnson did not disclose his presence or his knowledge of the incident.

Instead he consulted a lawyer with a view toward divorcing Margaret. He told the board he was advised his interests in a divorce action would be better served if he had other witnesses to his wife’s misconduct. After several days of fruitless effort to catch Margaret and Erb in a compromising situation, he and his “raiding party” eventually located them one night in June parked in a remote area. Johnson and the others surrounded the car and took pho- tographs of Margaret and Erb who were partially disrobed in the back seat. Johnson told Margaret not to come home and that further communication would be through lawyers. He told Erb to disclose the affair to his wife.

Erb did so. He and Margaret terminated their affair. Erb offered to resign his teaching position, but the local school board unanimously decided not to accept his resignation. The board president testified Erb’s teaching was highly rated by his principal and superintendent, he had been forgiven by his wife and the student body, and he had maintained the respect of the com- munity. Erb was retained for the ensuing school year and continued to teach in the Nishna Valley school.

Witnesses before the board included Erb’s past and present high school principals, his minister, a parent of children in the school, and a substitute teacher. All vouched for his character and fitness to teach. His superinten- dent gave essentially the same testimony in district court. The board refused to allow Erb’s attorney to cross-examine Johnson or two witnesses in support of Erb’s character and fitness to teach. Trial court ruled in its pretrial order that under the admitted record Erb’s teacher-student relationship had not been impaired by his conduct.

The board voted five to four to revoke Erb’s teaching certificate and, without making any findings of fact or conclusions of law, ordered it re- voked. Revocation was stayed by trial court and then by this court pending outcome of the certiorari action and appeal. Trial court held Erb’s admitted adulterous conduct was sufficient basis for revocation of his certificate and annulled the writ.

* * * In this appeal Erb contends the board acted illegally (1) in deny- ing his right to cross-examine witnesses against him and limiting the number of his witnesses, (2) in failing to make findings, and (3) in revoking his teach- ing certificate without substantial evidence that he is not morally fit to teach.

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Limitations at the hearing. Erb did not object before the board to the board’s denial of his right of cross-examination and limitation on the number of his witnesses. These questions cannot be presented for the first time here. Erb was obliged to raise them before the board and the trial court.* * * Since he did not do so he failed to preserve error in these respects for review here.

Failure of the board to make findings. A different situation exists con- cerning the board’s failure to make findings of fact. Erb’s first opportunity to complain of the absence of board findings was in his certiorari action, and he did raise the issue there. We hold the board acted illegally in failing to make findings of fact.

Although Iowa does not have an administrative procedure act to guide administrative boards, we have held such boards are required, even without statutory mandate, to make findings of fact on issues presented in any adju- dicatory proceeding. Such findings must be sufficiently certain to enable a reviewing court to ascertain with reasonable certainty the factual basis and legal principle upon which the administrative body acted. * * *

The board violated this precept in the present case. No findings were made. This would be sufficient basis to hold trial court should have sustained the writ of certiorari. However, reversing the case on that basis would return the case to the board which could make its findings on the present record and would not answer the remaining issue whether there is substantial evi- dence in the record which would permit the board to find Erb is not morally fit to teach. If that issue is resolved favorably to Erb, the case will be ended now in his favor rather than sent back to the board for findings.

Sufficiency of the evidence. Since the board made no findings there is no intelligible way to determine what interpretation the board gave to its statutory authorization to revoke the certificate of one not “morally fit to teach.” But nothing prevents us from determining whether there is substan- tial evidence in the record which would have supported revocation if the proper standard had been applied. Erb contends there is not. We agree. We will first examine the standard and then the sufficiency.of the evidence.

This court has not previously been called upon to decide what consti- tutes moral unfitness to teach. The legislature provided no definition in code chapter 260.

* * * The board contends the fact Erb admitted adultery is sufficient in itself

to establish his unfitness to teach. This assumes such conduct automatically and invariably makes a person unfit to teach. We are unwilling to make that assumption. It would vest the board with unfettered power to revoke the cer- tificate of any teacher whose personal, private conduct incurred its dis- approval regardless of its likely or actual effect upon his teaching. The legislature did not give the board that kind of power in Code § 260.23. The label applied to the teacher’s conduct is only a lingual abstraction until given content by its likely or actual effect on his fitness to teach. Morrison v. State Board of Education, 461 P.2d 375, 394 (Cal. 1969); * * * 68 Am Jur. 2d

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Schools § 134 at 465 (“Where the courts have been presented with the ques- tion whether or not specific conduct of a teacher constitutes moral unfitness which would justify revocation, they have apparently required that the con- duct must adversely affect the teacherstudent relationship before revocation will be approved.”).

As observed by the Morrison court, “Surely incidents of extramarital heterosexual conduct against a background of years of satisfactory teaching would not constitute ‘immoral conduct’ sufficient to justify revocation of a life diploma without any showing of an adverse effect on fitness to teach.” * * *

We emphasize the board’s power to revoke teaching certificates is nei- ther punitive nor intended to permit exercise of personal moral judgment by members of the board. Punishment is left to the criminal law, and the personal moral views of board members cannot be relevant. A subjective standard is impermissible and contrary to obvious legislative intent. The sole purpose of the board’s power under § 260.23 is to provide a means of pro- tecting the school community from harm. Its exercise is unlawful to the ex- tent it is exercised for any other purpose. In Morrison the California court discussed factors relevant to application of the standard:

“In determining whether the teacher’s conduct thus indicates unfitness to teach the board may consider such matters as the likelihood that the conduct may have adversely affected students or fellow teachers, the degree of such adver- sity anticipated, the proximity or remoteness in time of the conduct, the type of teaching certificate held by the party involved, the extenuating or aggravating circumstances, if any, surrounding the conduct, the praiseworthiness or blame- worthiness of the motives resulting in the conduct, the likelihood of the recur- rence of the questioned conduct, and the extent to which disciplinary action may inflict an adverse impact or chilling effect upon the constitutional rights of the teacher involved or other teachers.” * * *

These factors have relevance in deciding whether a teacher is morally fit to teach under Code § 260.2. Since the same standard is applicable in deter- mining whether a certificate should be revoked under Code § 260.23, a cer- tificate can be revoked only upon a showing before the board of a reasonable likelihood that the teacher’s retention in the profession will adversely affect the school community.

There was no evidence of such adverse effect in the present case. No one even asserted such an effect. The complainant himself acknowledged his purpose was to remove Erb from the school rather than from teaching. The evidence showed Erb to be a teacher of exceptional merit. He is dedi- cated, hardworking and effective. There was no evidence to show his affair with Margaret Johnson had or is likely to have an adverse effect upon his re- lationship with the school administration, fellow teachers, the student body, or the community. Overwhelming and uncontroverted evidence of local re- gard and support for Erb is a remarkable testament to the ability of a com- munity to understand, forgive and reconcile.

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There was no evidence other than that Erb’s misconduct was an iso- lated occurrence in an otherwise unblemished past and is not likely to recur. The conduct itself was not an open or public affront to community mores; it became public only because it was discovered with considerable effort and made public by others. ** * Erb made no effort to justify it; instead he sought to show he regretted it, it did not reflect his true character, and it would not be repeated.

* * * [W]e are persuaded the evidence adduced before the board would not support a finding that Erb is morally unfit to teach in Iowa.

The board acted illegally in revoking his certificate. Trial court erred in annulling the writ of certiorari.

Reversed.

Note

Changing American mores and a lack of agreed upon societal standards regarding “proper” conduct in American life would make it an unwar- ranted invasion of privacy for local school boards, other than in some in- sular communities, to attempt to monitor the private lives, especially living arrangements, of its teachers. However, such reasoning would not necessarily apply to private school employment. A female Catholic school teacher’s contract was not renewed because she had an adulterous affair with a married father of three children enrolled in the same school. In up- holding the nonrenewal, the court in Gosche v. Calvert High School, 997 F.Supp. 867 (Ohio 1998), aff’d, 181.F.3d 101 (6th Cir. 1999) held that Gosche was not meeting her employer’s contractual expectations under which she agreed “by word and example . . . to reflect the values of the Catholic Church.”

C. Criminal Activities

GILLETT v. UNIFIED SCHOOL DISTRICT NO. 276

Supreme Court of Kansas, 1980 605 P.2d 105

PRAGER, Justice: This case involves a controversy between a schoolteacher and school

board over the nonrenewal of her teaching contract. Unified school district No. 276 appeals from a judgment of the district court reversing the school

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board’s decision not to renew the teacher’s employment contract. The trial court ordered the teacher to be reinstated with back pay.

The facts in the case are not greatly in dispute and essentially are as fol- lows: Unified school district No. 276 is located in Jewell County. Jessie Mae Gillett is a tenured teacher who had been continuously employed by the school district for a period of seven years. Her last term of employment cov- ered the 1976-77 school year. On March 11,1977, the school board deliv- ered to Mrs. Gillett a notice of nonrenewal of her teaching contract for the following year pursuant to K.S.A. 1977 Supp. 72-5437. The notice, which was contained in a letter from the president and clerk of the school board, was in the form required by statute. The reason given for nonrenewal was the existence of criminal charges of shoplifting pending against Mrs. Gillett in Hastings, Nebraska. Mrs. Gillett promptly filed a request for a due process hearing on the matter. On May 5,1977, the board served on the teacher a notice which contained a supplemental list of reasons for nonrenewal in- cluding the following:

1. Inability to properly handle school funds; 2. Excessive absences from teaching school duties for allegedly being ill; 3. Improper use of sick leave; 4. Physical and mental instability; and 5. Loss of community, student, and school board respect for this teacher.

Mrs. Gillett, through her counsel, objected to the consideration of the sup- plemental reasons contending they were not timely served. The hearing committee overruled the objection, stating that it would consider the sup- plementary reasons.

* * *

The recommendation of the hearing committee was delivered to the school board, which considered all of the evidence presented in the case to- gether with arguments and briefs of counsel. The board unanimously de- cided to follow its previous decision of nonrenewal of Mrs. Gillett’s contract. The board made no findings of fact and gave no specific reason in writing for rejecting the committee’s recommendation. Mrs. Gillett then appealed the school board’s decision to the district court, using K.S.A. 60-2101(d) as re- quired by K.S.A. 1977 Supp. 72-5443. The district court reviewed the tran- script of the evidence presented at the due process hearing and heard arguments of counsel. The district court entered judgment in favor of Mrs. Gillett, ordering her reinstated with back pay. * * *

* * * The primary issue raised on this appeal is whether the district court erred

in holding that the school board had failed to present substantial evidence to support its reason for nonrenewal. From the evidentiary record in the case, we have concluded that there was substantial competent evidence showing good cause which justified the school board in its decision not to renew the teach-

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ing contract of Mrs. Gillett. In the original notice of nonrenewal served on the teacher on March 11, 1977, the reason given for nonrenewal was the criminal charges pending against Mrs. Gillett in Hastings, Nebraska. The evidence of the pendency of these two criminal cases was undisputed. Although Mrs. Gillett did not take the stand herself, the evidence presented on her behalf showed without question that she had taken articles at two stores in Hastings, Nebraska, on October 16, and November 17, 1976. The teacher did not deny that she took the articles of property. Her defense to the accusation was that, because of her mental condition at the time, she was not criminally responsi- ble for her actions. Dr. Dale W. Peters, a practicing psychiatrist, testified that he was a consultant to the Sunflower Guidance Center in Concordia. Mrs. Gillett was referred to that center for psychiatric evaluation in March of 1977. Dr. Peters examined her to determine her mental capacity and state of health, pri- marily for determining her mental state in relationship to the shoplifting inci- dents in Hastings, Nebraska. From these examinations, he concluded that, although she was not mentally ill, she was subject to altered states of con- sciousness resulting from sensitive reactions to a wide variety of foods. Various tests showed her sensitive to numerous foods which at times interfered with the functioning of her brain cells. During these attacks, she would become men- tally disturbed and her judgment adversely affected.

At the time of her arrests in Hastings, Nebraska, it appeared that Mrs. Gillett was acting strangely and out of touch with reality. The thrust of Dr. Peters testimony was that, at the time of the shoplifting incidents in Hastings, Nebraska, Mrs. Gillett, being in an altered state of consciousness, was not re- sponsible for her actions. The evidence showed that she had been involved in another shoplifting incident in 1973. Apparently on a number of occa- sions, she had become confused and lost while driving her motor vehicle. Each of these situations involved an altered state of consciousness which came on gradually. Dr. Peters testified that acute episodes can be dramatic. Such episodes could last up to one hour and could occur at any time, in- cluding during classroom hours. Dr. Peters conceded that Mrs. Gillett could again be involved in shoplifting incidents in the future and that she was still under treatment at the time of the hearing. Although Dr. Peters was of the opinion that there was no danger to the students in the classroom, he indi- cated an attack during class could be disruptive. Similar attacks could occur either from the consumption of certain foods or from a withdrawal from such foods. At the time of the hearing Mrs. Gillett was in the course of an elimi- nation diet which, hopefully, might eliminate her problem. If it did not work, then additional testing and treatment would be required. Dr. Peters men- tioned over 80 foods which could cause Mrs. Gillett to go into an altered state of consciousness. He further stated that this list was inconclusive and that there might be other foods which could affect her in the same way.

A teacher testified that at one time she had observed Mrs. Gillett in an altered state of consciousness while seated in her automobile. After the

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arrests at Hastings, she heard a student discussing the fact that Mrs. Gillett had been arrested. Another teacher testified that she had also heard students mention the fact that Mrs. Gillett had been arrested. This was the first time the teacher had known about it. There was no evidence presented at the hearing as to the ultimate outcome of the criminal actions. There was testi- mony tending to show that Mrs. Gillett had been careless in keeping candy sale proceeds in her desk drawer and in failing to make daily deposits at the bank as directed by the school superintendent. However, there was no proof of any misappropriation or loss of any money as the result of Mrs. Gillett’s handling of the school funds. In regard to excessive absences from teaching duties for allegedly being ill, the record is devoid of any misconduct on the part of the teacher in this regard. In regard to loss of community, student, and school respect for the teacher, the president of the school board testified that in his opinion the school board had community support in the nonrenewal of Mrs. Gillett’s contract. A substitute teacher testified about a classroom in- cident where students were caught copying. When she told them copying wasn’t allowed, the students responded: “The teacher can get away with it.”

Mr. Ralph Hooten, who was president of the school board at the time the letter of nonrenewal was delivered to Mrs. Gillett, testified that the school board had unanimously decided that Mrs. Gillett’s teaching contract should not be renewed because of the criminal charges of shoplifting pend- ing in Nebraska. This conclusion was reached only after substantial discus- sion by the board over a period of hours. The board had concluded that these shoplifting charges reduced her efficiency as a teacher. It appeared to him that, with the charges pending, the learning atmosphere would be improved if her contract was not renewed. Mr. Hooten stated that the board was aware of a similar charge of shoplifting in the year 1973 which was subsequently dismissed. At the time the board decided not to pursue the matter further. When the charges came up again in 1976, the board felt that they could not ignore those charges, having knowledge of the prior incident in 1973. It is fair to conclude, from Mr. Hooten’s testimony, that the school board was very much concerned about the criminal charges against Mrs. Gillett, that the board spent hours discussing the situation, and that they decided to nonrenew her contract rather than to terminate her in midyear.

The issue to be determined here is whether there is substantial evi- dence in the record sufficient to establish good cause, justifying the school board’s decision of nonrenewal of the teaching contract. The district court found that there was not. We have concluded there was. The problem pre- sented in this case was obviously one of great difficulty for the school board. The trial court specifically found that the school board had not arbitrarily and fraudulently refused to accept the findings of the hearing committee. The district court was correct in that finding. It is difficult to reconcile that finding with the additional finding that there was no substantial evidence

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to support the board’s reason for nonrenewal. Here the evidence was un- disputed that, for a period of at least three years, the teacher had been sub- ject to altered states of consciousness, during which she did not know what she was doing and her judgment and her conduct were adversely affected. At the time of the hearing, a testing and treatment program for Mrs. Gillett had been undertaken but not completed. She was attempting to get to the cause of her problem and was taking appropriate action to do something about it. However, we do not believe that, at that time, the school board acted unreasonably in concluding that it would be for the best interests of the school system to nonrenew Mrs. Gillett’s teaching contract for the following school year.

We think it significant that in this case the teacher did not personally take the witness stand to give her own explanation as to her physical and mental condition or to deny that she, knowingly with larcenous intent, took property from the stores in Hastings, Nebraska. She did not testify that the treatment then being administered was effective or was beginning to solve her problem. She did not testify as to her relationship with the students, or with other teachers, or with the school administrators. Not a single witness testified as to any contributions she was making to the educational program of the school district.

We cannot in good conscience find from the evidence that the board’s action was not taken in good faith, or that it was arbitrary, irrational, unrea- sonable, or irrelevant to the school board’s objective of maintaining an effi- cient school system for the students in the school district. It follows that the judgment of the district court must be reversed and the case remanded to the district court with directions to enter judgment in favor of the school board.

It is so ordered.

Notes

In a similar case, a permanent teacher’s indefinite contract was terminated because of three instances of alleged immoral conduct: stealing a teapot that was a prop in a school play, stealing twenty dollars from a basketball game’s receipts, and stealing a set of the school’s books. See Kimble v. Worth County R-III Board of Education, 669 S.W.2d 949 (Mo. Ct. App. 1984).

A teacher who had pled guilty to possession of marijuana and co- caine in a criminal proceeding was not reinstated to his teaching position after his criminal record had been expunged. The court, in Dubuclet v. Home Insurance Company, 660 So.2d 67 (La. Ct. App. 1995), contended that expungement did not erase the fact that he had committed the act, nor did it erase the moral turpitude of the teacher’s conduct.

Failure to take appropriate measures in response to her husband’s use of the family home for growing and selling marijuana was not held to

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be a “neglect of duty” on a teacher’s part, and her reinstatement by the Oregon Fair Dismissal Appeal Board was upheld. See Kari v. Jefferson County School District, 852 P.2d 235 (Or. Ct. App. 1993).

D. Impropriety with Students

BARCHESKI v. BOARD OF EDUCATION OF GRAND RAPIDS PUBLIC SCHOOLS

Court of Appeals of Michigan, 1987 412 N.W.2d 296

PER CURIAM. * * *

On October 18, 1976, the Board of Education of the Grand Rapids Public Schools voted to proceed on three charges brought against petitioner. * * * Those charges were as follows:

“1. That on or about August 10, 1976, Mr. Barcheski invited two female mem- bers of his driver education class to a party to be held on Friday night, Au- gust 13, 1976, the night before the raft race.

“2. The two female students attended the party and drank beer and smoked pot during the evening in the presence of Mr. Barcheski. Mr. Barcheski took one of the female students, Mary . . . , home in his au- tomobile after leaving the party. Mary.. . . was 15 years of age at the time in question. On the way to the residence of Mary . . . , Mr. Barcheski parked his automobile and had sexual intercourse with [her] in his automobile.

* * *

Our review of the record discloses that the tenure commission’s find- ings are supported by substantial, material and competent evidence, and we therefore affirm.

Regarding the first finding, i.e., that petitioner invited two female mem- bers of his driver’s education class to a party, Commissioner Gibson’s majority opinion relied heavily on the credibility of one of petitioner’s students, “Mary.” Mary admitted to the board of education that she had originally misled board investigators in her account of the party and petitioner’s invitation, but stated that shortly thereafter she told them the truth. Mary testified before the board of education that on about August 10, 1976, she discussed an upcoming raft race with petitioner and that petitioner told her that.he was going to a party on Fri- day, August 13, 1976, the night before the raft race. She stated that petitioner invited her and Wendy to attend the party and that the three of them talked about the party “every day” that week. At the tenure commission hearing, Mary’s testimony concerning petitioner’s alleged invitation was substantially the same as that offered before the board of education.

* * *

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Petitioner testified before the board of education that he had never in- vited the two students to the party. He said that when they asked him one day at the driving range whether he was going to attend the upcoming raft race he told them “no,” but explained to them that he went to an annual pre- raft-race party at the Michigan Wheel Test Basin. When they asked where Michigan Wheel was located, he simply gave them directions. Moreover, al- though he did not specifically remember having written down a telephone number on Wendy’s book, he said he often provided his number to students in case they needed a ride home from driver’s training classes. Petitioner conceded that, out of fear, he had originally lied to board of education in- vestigators about the girls’ presence at the party.

In the tenure commission’s decision, Commissioner Gibson gave little weight to the testimony of Wendy and petitioner, finding that the former’s midstream change in story which had apparently been precipitated by prior meetings with petitioner and the latter’s attempts to persuade Wendy to fal- sify her testimony seriously jeopardized the credibility of these witnesses. On the other hand, Commissioner Gibson saw no reason not to credit Mary’s testimony, even though Mary herself had experienced many personal prob- lems, such as drug and alcohol use and unwed motherhood.

* * *

We believe that the tenure commission majority’s finding that peti- tioner invited at least one female student to the party was supported by com- petent, material and substantial evidence on the record when viewed as a whole.

* * *

The tenure commission’s second finding, i.e., that the two female stu- dents drank beer and smoked marijuana in petitioner’s presence at the party, is also supported by competent, material and substantial evidence.

Petitioner stated that he arrived at the party at about 7:30 p.m. with two male friends and that about one-half hour later the students arrived. Two friends of petitioner who were at the party said petitioner looked surprised to see the students. There was conflicting testimony as to what occurred when the two students first came in contact with petitioner at the party. Petitioner testified that the students said they were “out partying” and that they looked somewhat “loose,” like they had been drinking. Petitioner said that he intro- duced the students to his friends and chatted with them for about ten min- utes, after which they disappeared. Petitioner said he never told the students to leave because he thought they had left on their own. He acknowledged that fifteen minutes after he initially saw the two students he saw Wendy standing down near the cement foundation of a metal derrick constructed on the riverbank, but that thereafter he saw neither of the students until prepar- ing to leave the party several hours later. He testified that he spent most of the party in an out-of-the-way spot behind a wrecker parked next to the Michigan Wheel building, some seventy feet from the derrick where the

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students allegedly spent most of their evening. It was undisputed that many of those attending the party were drinking alcoholic beverages and smoking marijuana.

Mary admitted to the board of education that she and Wendy had smoked two “bowls” (two pipes full) of marijuana and had drunk several beers before having arrived at the party. She also testified that when they ar- rived, petitioner gave them some beer and that, during the course of the evening, they smoked marijuana in petitioner’s presence. Before the tenure commission, Mary altered her testimony somewhat and testified that peti- tioner had not handed them their first beer but had, instead, directed them to a refrigerator where they could get their own. Petitioner and several of his friends denied that petitioner had ever given the students beer at the party.

* * * Both before the board of education and the tenure commission Mary

testified that she had smoked marijuana and had drunk beer in petitioner’s presence at the party. At the board of education hearing, Wendy also affirmed that Mary had smoked marijuana and had drunk beer in front of pe- titioner. She noted, however, that she intentionally hid her own marijuana smoking from petitioner out of embarrassment.

Before the tenure commission, Wendy recanted part of her board of education testimony. She testified that neither she nor Mary smoked mari- juana or drank beer in petitioner’s presence during the party. Six of peti- tioner’s friends testified that although each had seen the students smoke marijuana and drink beer at the party, this had never taken place in peti- tioner’s presence.

Some of Wendy’s unrecanted testimony weakened petitioner’s blanket denial that he had lost sight of the two students through most of the middle portion of the party. Wendy testified before the tenure commission that dur- ing the party petitioner and Wendy would sometimes see each other and acknowledge each other’s presence with a smile. Wendy also reluctantly tes- tified before the tenure commission that she had seen a blonde-haired woman next to petitioner and later at the party, or at some later time, had asked petitioner if the woman was his wife. Petitioner’s wife testified before the board of education that she arrived at the party at about 8:30 p.m. and that she and her husband spent most of their time in the cement area down by the river, an area very near the derrick where the two students spent most of their evening.

Wendy also gave unrecanted testimony before the board of education that just before leaving the party, Mary was sitting in a police car with her arm around petitioner and at one point reached over and kissed him. Wendy said that both she and Mary drank beer during this time by the police car. Pe- titioner conceded before the tenure commission that just as he was leaving the party he saw the two students standing next to a police car drinking beer. Observing that the students were intoxicated, petitioner convinced a friend

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to drive the students home. Petitioner, two of his male friends, Mary and Wendy then left the party together in a car.

Thus, besides the direct testimony of Mary, who flatly asserted that she had smoked marijuana and had drunk beer in petitioner’s presence at the party, there was also testimony suggesting that petitioner maintained some visual contact with the students during the party and had spent at least some of his time near where the students were smoking and drinking. Under these circumstances, we cannot conclude that the tenure commission’s find- ing that the students drank beer and smoked marijuana in petitioner’s presence is not supported by substantial evidence.

* * *

Next, petitioner argues that the tenure commission improperly made its third finding regarding petitioner’s having driven Mary home alone after the party because he was never put on notice that taking the student home by it- self constituted a basis for a charge of wrongful conduct.

* * *

Based on petitioner’s own testimony, however, we believe that peti- tioner was, or should have been, well aware that taking Mary, a young, in- toxicated female student home alone in his car constituted, by itself, grounds for discipline. Petitioner stated that the students appeared intoxicated when they arrived at the party and were in even worse shape when he found them several hours later as he was leaving the party. Moreover, petitioner testified that on previous occasions, he had asked another driver’s training instructor to give Mary a ride home because he thought she had a “crush” on him. Pe- titioner also explained that on one occasion Mary had placed her head on his shoulder while his class was watching a movie. As noted previously, Wendy testified that at the end of the party Mary put her arm around peti- tioner and kissed him. Wendy gave unrecanted testimony that when peti- tioner’s friend, Michael Maxim, gave the two students and petitioner a ride to the social hall where petitioner had left his car, Mary kept her hand near the zipper of petitioner’s pants and that petitioner made no effort to remove it. Mary herself said that she and petitioner kissed passionately while riding in the back seat of Maxim’s car.

Given this factual scenario and the earlier findings of the board of edu- cation on this issue, petitioner was adequately put on notice that driving Mary home alone constituted by itself conduct supporting a charge of im- proper or wrongful conduct which could properly be considered in deciding whether a penalty would be appropriate.

* * *

For the foregoing reasons, the circuit court’s affirmance of the tenure commission’s ruling that petitioner’s discharge was based on reasonable and just cause is affirmed.

Affirmed.

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Notes

Dismissal was upheld of a tenured middle school teacher accused of “in- appropriate conduct.” The teacher had made repeated offensive sexual statements toward female students and placed his hand on a student’s back and snapped her bra strap. See Knowles v. Board of Education, 857 P.2d 553 (Colo. Ct. App. 1993).

Termination of a teacher who was tried by his school for sexual mis- conduct occurring twenty-four years earlier was upheld. The teacher ob- jected to the school publicizing his disciplinary conviction; however, the court in De Michele v. Greenburgh Central School District. No. 7 , 167 F.3d 784 (2d Cir. 1999) held that the public had a strong interest in protecting school children from a sexual predator and the public’s interest outweighed those of the teacher.

A teacher’s dismissal, based on a grand jury’s indictment for sexual misconduct with teenage pupils, was upheld. Although the teacher was not provided a hearing before the school board to refute the allegations of misconduct, the court ruled that the dismissal did not violate his right of due process. In the event that the school board brought the charges, the court held, the teacher would have been entitled to a hearing before the board. The court stated:

After the grand jury had acted, the issue for the board was not whether Moore had committed the acts charged by the girls or whether he was guilty or innocent under the indictments but whether the existence and pendency of the indictments justified his suspension and the refusal to act upon the matter of his contract renewal. (p. 1073)

See Moore v. Knowles, 482 F.2d 1069 (5th Cir. 1973). Revocation of the teaching certificate of a junior high school teacher,

accused of immorality because of her sexual misconduct with school-age children, especially a fifteen-year-old male student, was upheld in Howard v. Missouri State Board of Education, 913 S.W.2d 887 (Mo. Ct. App. 1996). In her defense, the teacher alleged that she was acting under the influence of either mental illness or medications associated with that illness and lacked the intent to commit any immoral act. In rejecting this defense, the court declared that it was not necessary to prove intent in order to revoke a teaching license for immorality.

VII. EMPLOYMENT DISCRIMINATION

Certain personnel practices that have an impact on racial minorities, women, pregnant women, religious groups, older persons, and people with disabilities have been challenged as being discriminatory. Although it has been argued that some of these practices may have reflected cus- tom and did not have an overt discriminatory intent when instituted,

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those directly affected by them have alleged that they were in fact dis- criminatory.

In addition to constitutional protections under the Fourteenth Amendment’s Equal Protection and Due Process Clauses, several federal statutes protect public school personnel against employment discrimina- tion. These statutes include Sections 1981 through 1983 of Title 42, United States Code; Title IX of the Education Amendments of 1972; the Americans with Disabilities Act of 1990 as amended and Section 504 of the Rehabili- tation Act of 1973; the Pregnancy Discrimination Act of 1978; and Title VII of the Civil Rights Act of 1964.* The Civil Rights Act of 1964 was the semi- nal legislative enactment of the movement to eradicate discrimination in the United States. Title VII, the section dealing with discrimination in both the public and private workplaces, provides in part:

SECTION 703

(a) It shall be an unlawful employment practice for an employer

(1) to . . . discriminate against any individual with respect to his com- pensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or applicants for employ- ment in any way which would deprive or tend to deprive any indi- vidual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, reli- gion, sex, or national origin.

(e) (1) it shall not be an unlawful employment practice . . . to hire and em- ploy employees . . . on the basis of . . . religion, sex, or national ori- gin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.

(h) It shall not be an unlawful employment practice . . . to use a bona fide seniority or merit system . . . provided that such differences are not the result of an intention to discriminate. . . . Nor shall it be an un- lawful employment practice . . . to give and to act upon the results of any professionally developed ability test, provided that such test, its administration, or action upon the results is not designed, intended, or used to discriminate.

(j) Nothing contained in this Title shall be interpreted to require any em- ployer. . . . to grant preferential treatment to an individual or to any group because of the race, color, religion, sex, or national origin of such individual or group on account of an imbalance which may exist between the percentage employed by any employer and the percent- age . .. in any community, State, section, or other area.

SECTION 706

(g) If the court finds that the [employer] has intentionally engaged in . . . an unlawful employment practice . . . the court . . . may order such af- firmative action as may be appropriate.

*See Appendix D for these statutes.

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A. Racial Discrimination

Racial discrimination against teachers has been a much-litigated issue since the Supreme Court’s decision in Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), in which de jure segregation was declared to be a violation of the Equal Protection Clause of the Fourteenth Amendment. Court-ordered desegregation plans subsequent to Brown often contain provisions effectively regulating the hiring, promotion, and dismissal of minority school personnel. Courts also may impose affirmative action plans on school districts that have violated Title VII.

Involimtary termination of black teachers in school systems that have been under court order to desegregate has resulted in severe action against offending school systems. Court action in such cases has included awarding monetary damages, back pay, and attorneys’ fees to minority plaintiffs; assessing court costs against defendant school districts; reinstat- ing personnel; freezing the hiring of white teachers; and requiring districts to report all personnel actions to the court for a specified time. Such severe judicial enforcement of desegregation remedies, coupled with the vigor- ous application of Title VII, has been effective in reducing discriminatory employment practices against black teachers.

Several Supreme Court decisions have addressed the limits of affir- mative action plans. Although not a decision dealing with educators, a six-to-three Supreme Court decision upheld the “last-hired-first-fired” principle as applied to Memphis firefighters. The Court asserted that se- niority systems, as long as they are unbiased, may not be disrupted to save the jobs of newly hired minority workers. The decision states: “It is inap- propriate to deny an innocent employee the benefits of his seniority in order to provide a remedy in a pattern or practice suit such as this.” Fire- fighters Local Union No. 1784 v. Stotts, 467 U.S. 561 (1984).

Additionally, the Supreme Court did not uphold a layoff plan that was part of a school district’s collective bargaining agreement. Although the plan called for retaining teachers by seniority, it also stipulated that minorities were not to be dismissed in proportions greater than their representation in the district. When, in accordance with the racially sensitive stipulation, white teachers were terminated instead of less-senior black teachers, the dis- placed white teachers claimed reverse discrimination. In its five-to-four de- cision, the Court agreed, holding that the policy was a violation of the nonminority teachers’ constitutional equal protection. Racial classifications such as that imposed by the policy were justified only when narrowly tai- lored to accomplish a compelling state purpose. However, the Court found that other, less intrusive, means were available to the district to accomplish its purposefor example, the adoption of hiring goals. Although the policy would have been allowable to remedy past de jure discrimination, no such

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finding had been made in court. See Wygant v. Jackson Board of Education, 476 U.S. 267 (1986).

A federal court rejected an affirmative action plan preferring minor- ity teachers over nonminority teachers when candidates to be laid off ap- peared to be equally qualified. Under this plan, a white female business education teacher was laid off instead of a black female teacher with the same seniority, solely on the basis of race. The court held that the board’s plan violated Title VII, was not adopted to remedy discrimination or the effects of past discrimination, was designed to promote racial diversity for the sake of educational purposes, unnecessarily trammelled nonminority interests, was devoid of goals and governed by the board’s whim, and im- posed job loss on tenured nonminority employees. See Taxman v. Board of Education of the Township of Piscataway, 91 F.3d 1547 (3rd Cir. 1996), cert. dis- missed, 522 U.S. 1010 (1997). Prior to the Supreme Court making its deci- sion, a settlement of $433,500 by the school board, 70 percent of which was paid by the Black Leadership Forum, preempted further Court review. Since the case dealt with the loss of a job, based solely on race, opponents of affirmative action claim that the settlement was effected to prevent a possible Supreme Court assault on both private and public affirmative ac- tion programs. Title VII of the Civil Rights Act of 1964 applies to both pri- vate and public employment.

A teacher ‘s union challenge to a teacher transfer policy designed to ensure that faculty reflected a systemwide racial balance was not upheld. In its decision, a federal appellate court contended that although the pol- icy was “race conscious,” it was “specific race neutral” and had no dis- parate impact. The court agreed that in “some instances, it will benefit or harm white teachers; in others, it will benefit or harm black teachers.” See Jacobson v. Cincinnati Board of Education, 961 F.2d 100 (6th Cir. 1992).

A Supreme Court decision involving cannery workers in Alaska, Wards Cove Packing Company v. Atonio, 490 U. S. 642 (1989), had a dramatic, if not chilling, effect on civil rights litigation. Prior to this decision, statis- tics revealing a racial imbalance between unskilled and more highly skilled positions were, in many instances, sufficient to make out a case of “disparate impact” under Title VII of the Civil Rights Act of 1964. Courts often ruled that disparate impact occurred when an identical standard was equally applied to all applicants or employees, but its application nega- tively affected some groups such as African Americans. This view was originally established in Griggs v. Duke Power Company, 401 U.S. 424 (1971), when the Court held that a facially neutral employment practice may be deemed to be violative of Title VII without evidence of an employer’s sub- jective intent to discriminate. The decision in Wards Cove significantly al- tered these notions by holding that statistics alone were not enough to prove discrimination, rather causation must be shown between an

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employment practice and the alleged disparity in hiring; although minori- ties may be disproportionately concentrated in unskilled positions, the rel- evant question is the size of the pool of minority candidates for the higher skilled positions; and the burden of proof is on the plaintiffs to show that employers engage in practices that disproportionately exclude minorities and women.

The Civil Rights Act of 1991 nullified or modified Supreme Court de- cisions such as Wards Cove and several others rendered in the late 1980s that had made it more difficult for workers to win antidiscrimination suits. Under this law, victims of employment bias based on race, sex, disability, religion, or national origin may collect limited compensatory and puni- tive damages. Damages had heretofore only been available to victims of discrimination based on race. Employment practices, under the Civil Rights Act of 1991, must be “job-related for the position in question and consistent with business necessity.” Another major purpose of the law was to return to the standard set by the Supreme Court prior to the Wards Cove decision, which required employers to prove that an employment standard that results in adverse impact is necessary for successful job performance.

Although accepting evidence that the school district’s overlookinga minority candidate’s teaching application was a mistake, a federal court of appeals held that evidence of nepotism and the practice of word-of-mouth hiring had a disparate impact on minorities and were violative of Title VII. See Thomas v. Washington County School Board, 915 F.2d 922 (4th Cir. 1990).

Title VII was employed by a black assistant principal who had been denied the position of director of vocational education in favor of a white applicant. In upholding the white applicant’s selection, a court recognized that superior qualifications were a valid, nondiscriminatory reason. See Clark v. Huntsville City Board of Education, 717 F.2d 525 (11th Cir. 1983). In another case involving Title VII, a white and more-senior social worker was not retained for her position as part of a reduction in force. In its hold- ing, a court declared that she had not been retained for the position solely because of her race and the school district’s desire to fill the position with its only black administrator. Additionally, the court averred that there had been no past discriminatory conduct by the school district in its hiring practices that would justify remedial, race-conscious affirmative action. See Cunico v. Pueblo School District, 917 F.2d 431 (10th Cir. 1990).

A high school band teacher who failed to have his contract renewed claimed that his discharge was racially discriminatory. Reasons for the nonrenewal included parental concern over disorder and inconsistency in the band program; failure to care for the band’s equipment and facilities; the program’s being loosely structured; failure to provide leadership or to command respect; and deficiency of organizational skills. The federal ap-

41-o. 2

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pellate court held that “the reasons asserted by the school district may have been based partly on subjective considerations, but they were premised on objective factual observations that clearly constitute legiti- mate reasons for not renewing the plaintiff’s contract.” See Tyler v. Hot Springs School District No. 6, 827 F.2d 1227 (8th Cir. 1987).

In some instances, teachers and other public school employees are urged not to enroll their children in private schools. A decision, in which a public school secretary was punished for sending her daughter to an all- white private school, stated that such action on the part of the school dis- trict violated her civil rights. See Fyfe v. Cur lee, 902 F.2d 401 (5th Cir. 1990),

cert. denied, 498 U.S. 940 (1990). Concern over excellence in the public schools has brought increased

attention to the quality of teachers and to the adequacy of teacher-training programs. One result of this concern has been the increased use of compe- tency testing of both prospective and practicing teachers, prior to their cer- tification, hiring, promotion, or retention. Such tests have raised racial discrimination issues because these tests have often had an impact dispro- portionate on racial minorities. It should be noted that Title VII specifically condones professionally developed employment tests when such tests are not used to discriminate.

To date, teacher competency tests have been challenged, primarily in southern states, on a variety of constitutional and statutory grounds, in- cluding alleged racially biased content and alleged failure sufficiently to validate the tests’ job relatedness. Courts have found that such testing ful- fills a legitimate state function, and they have upheld tests and cutoff scores that objective validation has shown to be indicative of actual job qualifications. The decision in United States v. South Carolina, 445 F. Supp. 1094 (S.C. 1977), upheld the use of the National Teacher Examination as a requirement for state certification, despite the fact that its use dispropor- tionately disqualified African Americans. And in United States v. LULAC, 793 F.2d 636 (5th Cir. 1986), the Texas Pre-Professional Skills Test, which college students were required to pass before scheduling more than six hours of professional education courses at any state college or university, was upheld. The testing of veteran teachers was upheld in Texas v. Project Principle, 724 S.W.2d 387 (Tex. 1987).

B. Sex Discrimination

Although not challenged on the basis of Title VII, Marshall v. Kirkland addresses the issue of sex-based discrimination in not hiring females for administrative and specialty positions. The decision depicts a once prevalent attitude about hiring females for other than classroom duties.

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MARSHALL v. KIRKLAND United States Court of Appeals, Eighth Circuit, 1979

602 F.2d 1282

HANSON, Senior District Judge. * *

Appellants’ complaint alleges gender-based discrimination. Women have predominated as teachers in Barton-Lexa School District by a ratio of between three and four to one. Evidence was presented to the district court which indicated that the assignment to “specialty” positions (a position with extra duties for which an increment in compensation was provided), and promotion to one of the three administrative positions in the district (principal of the elementary school, principal of the high school, and superintendent of the district) was influenced by the sex of the employee and statistically favored males with a concomitant differential in pay as be- tween men and women.

The district court concluded:

the plaintiffs have failed in their burden of presenting any testimony to the ef- fect that discrimination due to sex existed within a period of 3 years from the commencement of this litigation.

* * * Plaintiffs appeal from this determination that they failed to prove a prima facie case of sex discrimination.

* * * * * * The district court held that a prima facie case of unconstitutional

sex discrimination had not been made and that no rebuttable presumption arose. We conclude that the district court’s finding in this regard is clearly er- roneous and contrary to recently articulated constitutional principles with re- spect to the assignment of specialty personnel and promotion of teachers to adm inistrative positions.

Appellants do not distinguish the elements involved in a constitutional as opposed to a Title VII statutory claim of sex discrimination. The two ac- tions are different, however, as the Supreme Court has recently made clear. The evidence raises the question of whether defendants violated the right of female teachers, administrators, and applicants to equal protection of the law, a claim cognizable under 42 U.S.C. § 1983. Title VII is not involved.

As a general proposition, the equal protection clause of the Fourteenth Amendment, substantively inherent in the Fifth Amendment, grants to public employees “a federal constitutional right to be free from gender dis- crimination” unless a gender classification serves important governmental ob- jectives and is substantially related to the achievement of those objectives. * * *

In Feeney the Supreme Court elaborated on what constitutes “discrim- inatory purpose”: “It implies that the decisionmaker . . . selected or reaf- firmed a particular course of action at least in part ‘because of,’ not merely

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‘in spite of,’ its adverse effects upon an identifiable group.” If employment decisions or policies in the public employment area are made in part “be- cause it would accomplish the collateral goal of keeping women in a stereo- typic and predefined place,” the Constitution is violated. * * *

* * *

The record indicates that during the relevant years there were ten or eleven administrative and specialty positions. As noted, the administrative positions were the superintendent and the elementary and high school prin- cipals. The seven or eight specialty positions, which carried an increment in pay because of extra duties involved, consisted of various jobscoaching, physical education, counselor, agriculture and home economics teachers. The practice of the school district was that the three administrators usually came from the ranks of teachers, and the specialists were of course teachers compensated for extra duties.

With regard to the specialty positions, the home economics and girls’ physical education teacher positions were occupied by women during the rel- evant years, while the other specialty positions were filled by men. Women teachers outnumbered men by a ratio of three or four to one with the net result that all or nearly all male teachers in the district had specialty positions while the great majority of women did not. With regard to pay, the women specialty teachers received less than the males, though this evidence was poorly devel- oped. School board president W. F. Burney testified that lilt has . . . been the policy of the school to hire men” for coaching positions, * * * and he agreed “that the men always get specialty jobs and the women almost never get spe- cialty jobs.” * * * School superintendent Kirkland, prior to 1973 the principal at the high school and like Burney, a decisionmaker, agreed that the football, basketball, and track coaches had traditionally been men and that, with the ex- ception of the girls’ basketball coach (a special pay job established relatively recently), should continue to be men. * * * Kirkland candidly testified:

ITI here is no evidence, to indicate that only men could perform those jobs, but again, this is something that has been traditionally done in this Country and I concur with it.

* * * He also testified that men had previously taught girls’ physical educa- tion and that men would be capable of coaching girls’ basketball. In contrast, women were not qualified to coach male athletic teams because “I just feel that a man could do [a] better job of handling a group of young men like that, than a woman.” * * *

With respect to administrators, the evidence suggests that at the time of trial women were virtually disqualified from holding the position of high school principal and, as a consequence, superintendent. Mrs. Todd, the ele- mentary principal during the relevant years, was the lowest paid of the three administrators. In 1973 David Bagley, a high school teacher, was promoted to high school principal to replace Mr. Kirkland who assumed the duties of

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superintendent. Mrs. Todd was concededly better qualified than Bagley, * * * but was not considered for the job. Mrs. Todd testified and did not indicate any interest in the high school principal or superintendent positions. How- ever, Superintendent Kirkland did not indicate in his testimony that Todd’s lack of interest was a factor in failing to consider her for the position. Instead, he testified that Todd was not considered Iblecause with the situation we had, and the students we had, I felt that we needed a man for the job.” * * * Thereupon occurred the following colloquy between appellants’ counsel and Mr. Kirkland:

Q Now, fully explain that please. The situation you had and the students you had

A Because with high school students I feel that men are stronger disciplinari- ans than women are, and this particular instance I felt we needed a man in this position because part of the job was to be at athletic events, this sort of thing . . . to see that things . . . everything goes off as it should and I felt that a man could do a better job than a woman.

Q Well, what is the objective evidence that you have for arriving at the con- clusion that a woman can’t do those things?

A I don’t have any, Mr. Walker.

Q Is that just a natural bias?

A I suppose it is.* * *

Coupled with objective evidence showing a clear pattern of dispro- portionate gender representation in administrative and specialty positions, the testimony of school board president Burney and former principal and superin- tendent Kirkland strongly indicates that the sex of a teacher was an important part of assignment and promotion decisions in this area of the school district’s employment. At the very least, appellants made a prima facie showing that de- cisionmakers in the school district sought to maintain women teachers in a “stereotypic and predefined place” in the school district and the district court clearly erred in finding otherwise. * * * Indeed, the testimony of Burney and Kirkland would support a factual finding that the school district had a dis- cernible policy or practice of hiring only men (or women) for certain specific administrative or specialty jobs. Such a finding would raise the question of whether the non-neutral gender classification could be justified as bearing a close and substantial relationship to important governmental objectives. * * *

* * * The district court observed that the school district “presented substantial

testimony that no sex discrimination existed in the operation of the school system,” but the court did not elaborate in view of its finding on the prima facie issue. Accordingly, on remand the district court should, on the basis of the present record, determine (1) by appropriate order whether the named plaintiffs may sue as representative parties on behalf of the class of all female teachers and applicants; (2) if the cause may be maintained as a class action,

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whether the evidence of no sex discrimination referred to by the district court rebuts the presumption in favor of class-wide equitable relief * * * ; and (3) whether the presumption in favor of individual relief has been rebutted with respect to those women who testified. Judgment may then be entered on the district court’s supplemental findings and conclusions.

* * *

* * * We reverse the district court’s dismissal of the class and individual claims for relief predicated on alleged unconstitutional sex discrimination to the extent it relates to the assignment of female teachers to specialty posi- tions and promotion to administrative positions. We remand the cause to the district court for further proceedings consistent with this opinion.

Though the results here are mixed, because on this appeal appellants’ counsel has successfully established a prima face case of sex discrimination, we award costs on appeal to appellants including $500 in attorney fees. 42 U.S.C. § 1988.

* * *

Notes

Does Kirkland’s attitude about hiring females still prevail today? See Jepsen v. Florida Board of Regents, 610 F.2d 1379 (5th Cir. 1980) for

an action brought under Title VII. Title IX regulations were vague on the question of whether the

amendment covered employment practices of schools and colleges. A six- to-three decision by the United States Supreme Court reasoned that Con- gress had intended Title IX to cover employment. See North Haven Board of Education v. Bell, 456 U.S. 512 (1982).

In Grove City College v. Bell, 465 U.S. 555 (1984), the Supreme Court, referring to private institutions, declared that Title IX did not apply to schools and colleges as a whole but only to those parts of an institution that received federal aid directly. However, provisions of the Civil Rights Restoration Act of 1988 were designed to overturn the Grove City College decision. The act made it clear that if one part of an entity receives federal funds, then the entire entity is covered.

Title VII prohibits unequal treatment with respect to “conditions of employment.” Courts have construed “conditions” to include insulting and degrading treatment; therefore, Title VII applies to sexual harassment on the job.

In a decision involving a male teacher’s request for a one-year’s, child-rearing leave without pay under a collective bargaining agreement, a court held such a provision to contravene Title VII because it allowed such leave only for female teachers. However, the court held void that por- tion of the provision granting leave beyond the period of actual physical

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disability due to the pregnancy, childbirth, or related medical conditions. See Schafer v. Board of Education of Pittsburgh, 903 F.2d 243 (1990).

C. Pregnancy

A challenge to local school board policies that provided for mandatory leave at a particular time in a pregnancy and rules pertaining to reem- ployment after delivery has been heard by the United States Supreme Court. In its decision in Cleveland Board of Education v. La Fleur, 414 U.S. 632 (1974), the Court held that mandatory maternity termination provisions stating the number of months before anticipated childbirth violated the Due Process Clause of the Fourteenth Amendment. The court reasoned that arbitrary cutoff dates have no valid relationship to the state’s interest in preserving continuity of instruction, as long as the teacher is required to give substantial advance notice that she is pregnant. And the Court stated that the challenged provisions created a conclusive presumption that every teacher is physically incapable of continuing her duties at a specified time in her pregnancy. Additionally, the Court struck down the provision that a mother could not return to work until the next regular semester after her child was three months old.

Shortly after this decision, many court challenges were brought against policies pertaining to disability benefits, sick leave, and health in- surance involving pregnancy. The issue was addressed by the United States Supreme Court in a noneducator-related case, General Electric Com- pany v. Gilbert, 429 U.S. 125 (1976). Largely as a result of the Gilbert deci- sion, which upheld the exclusion of pregnancy-related disabilities from General Electric’s comprehensive disability plan, Congress passed the Pregnancy Discrimination Act, which went into effect in 1979.

This act is an amendment to Title VII. The Pregnancy Discrimination Act stipulates that employment discrimination “because of sex” or “on the basis of sex,” as prohibited by Title VII, includes discrimination “because of or on the basis of pregnancy, childbirth or related medical conditions.” Women so situated must be treated as other applicants or employees are: on the basis of their ability to work. Women may not be fired, be denied promotions, or be refused employment as a consequence of their being pregnant or having an abortion. They may not be forced to take leave while they still can work. They may not be required to exhaust their vaca- tion benefits prior to receiving sick leave or disability benefits, unless the same policy applies to other disabled employees. If other employees are entitled to resume their jobs after disability leave, so too are women who have been absent because of pregnancy. Usually, however, they have no guarantee of returning to their former positions or schools.

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In the area of fringe benefits, such as disability benefits, sick leave, and health insurance, the same principle applies. A woman unable to work for pregnancy-related reasons is entitled to disability benefits or sick leave on the same basis as employees unable to work for other temporary medical reasons. Also, any health insurance provided must cover expenses for pregnancy-related conditions on the same basis as coverage given for other medical conditions. However, health insurance for expenses result- ing from abortion is not required, except where the life of the mother would be endangered if the fetus were carried to term or where medical complications have arisen from such an abortion.

ECKMANN v. BOARD OF EDUCATION OF HAWTHORN SCHOOL DISTRICT

United States District Court, Northern District of Illinois, 1986 636 F. Supp. 1214

ROSZKOWSKI, District Judge. * * *

On June 6, 1982, plaintiff Jeanne Eckmann instituted this civil rights action against the Board of Education of Hawthorn School District No. 17 (the “School Board”) and various School Board members. Plaintiff sought compensatory and punitive damages for her allegedly unconstitutional dis- charge. * * *

* * *

The burden of proof instruction tendered to the jury in this case was drafted according to the dictates of Mount Healthy City Board of Education v. Doyle. * * *

* * *

Based on Mount Healthy, there are three burdens in a case of this sort. The teacher must first show some constitutionally protected conduct. Once this is established, the teacher carries the burden of showing that the pro- tected conduct was a “substantial” or “motivating” factor behind the school board’s conduct. Once the teacher carries these two burdens the school board must then show by a preponderance of the evidence that it would have taken its action even if the teacher had not engaged in the constitution- ally protected conduct. * * *

The constitutionally protected conduct plaintiff alleges motivated the School Board to fire her in this case was her out-of-wedlock pregnancy cou- pled with her decision to raise her child as a single parent. While plaintiff’s conduct is not protected by a specifically enumerated constitutional right, this court considered it to be covered by “substantive due process.”

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In Loving v. Virginia, * * * the Supreme Court held that the freedom to decide whom “to marry, or not marry . . . resides with the individual and cannot be infringed by the state.” In other words, it is improper for the state to interfere with a person’s decision to marry, or as it relates to this case, not to marry. The Supreme Court later stated that:

If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fun- damentally affecting a person as the decision whether to bear or beget a child.

Eisenstadt v. Baird (1972). The next year, in Roe v. Wade (1973), the Court held that the constitutional right to privacy “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Supreme Court precedent thus clearly shows that the individual’s decisions regarding marriage and child bearing are constitutionally protected from improper state infringement. * * * Under the overwhelming weight of this authority, it is beyond question that plaintiff had a substantive due process right to con- ceive and raise her child out of wedlock without unwarranted state (School Board) intrusion.

In its motion for a JNOV (judgment notwithstanding the verdict), the School Board does not contest that plaintiff’s out-of-wedlock pregnancy and her decision to raise her son as a single mother are protected by substantive due process. Rather, the School Board focuses its attack on whether plaintiff showed that her conduct in fact motivated the Board when discharging her. In a nutshell, the School Board’s position is that:

In this case a review of all of the evidence taken as a whole, in the light most favorable to the plaintiff without speculation or drawing unreasonable infer- ences which conflict with undisputed facts clearly shows that beyond any doubt the Defendant School Board would have taken the same action against the Plaintiff if the language referencing immorality had never been included in the documentation. * * *

To support its position, the School Board states that “[elvery witness called by the Plaintiff or the Defendant testified that the Board would have taken the same action even without the immorality language.” * * *

This court agrees with the School Board that each Board member specifically testified that plaintiff would have been terminated even if she had not been pregnant. This court also agrees that each Board member testi- fied that the only reason charges of “immorality” were included in plaintiff’s “Notice to Remedy,” “Letter of Dismissal” and the accompanying Bill of Par- ticulars, was on advice of the Board’s lawyer. The Board’s lawyer confirmed this testimony. This court also recalls the numerous defense witnesses that testified as to “the cruelty, abuse, disregard and other difficulties that they had with [plaintiff] from 1979 until the time of dismissal.” * * *

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What the School Board overlooks however * * * is that plaintiff did pre- sent evidence that her supposed “immorality” was the motivating factor for her discharge.

For example, plaintiff submitted the “Notice to Remedy” given her by the School Board. The Notice listed numerous charges of deficiencies in plaintiff’s teaching abilities and stated that there were 11 matters that could be remedied. One such charge was:

Your conduct in becoming pregnant outside the state of marriage has dimin- ished your ability to teach and the ability of your students to learn their lessons from you.

The Notice then cautioned plaintiff “not to engage in such conduct in the future.” Plaintiff also presented Administrative Law Judge Sidney Mogul’s writ-

ten report ordering her reinstatement with full back pay. The issue in front of ALJ Mogul was whether the School Board could prove by a preponderance of the evidence that plaintiff was guilty of “negligence, insubordination, cru- elty and immorality” as charged in the “Letter of Dismissal.” Following a lengthy hearing, ALJ Mogul issued a twenty-five page decision in which he found that:

(1) “In support of the charge that the Teacher is an unfit role model, the Board has failed to show that the Teacher proselytized pupils or that the fact of childbirth out of wedlock had any substantial effect upon the Teacher’s stu- dents.”

(2) “The Board has shown no evidence of significant harm to students, faculty or school, resulting from the Teacher’s unwed motherhood.” and,

(3) “There is no evidence in the record that the Teacher was an immoral per- son. On the contrary, the record indicates that she was an eminently moral person, a religious person and staunch in her beliefs.”

All Mogul went on to note that “were it not for her pregnancy and childbirth out of wedlock, this dismissal would probably not have taken place,” and that “the charges of negligence, insubordination or incompe- tency were purely embellishments to soften the effect of the Board’s reliance upon its charge of immorality.” * * *

* * * Also submitted was evidence to the effect that following the Notice to

Remedy in July of 1981, the School Board voted to cut plaintiff’s pay and in- structed the superintendent to tell her that she could no longer manage the student council, coach the cheerleaders, organize school fund raisers or trips, or participate in graduation exercises. All of these restrictions were im- posed because she was a mother.

Plaintiff also submitted an evaluation written by Board member Ed O’Brien to the effect that she was doing fine at school and that the quality of the teaching in her classroom was excellent. Plaintiff never received this

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evaluation. Mr. O’Brien mailed it to Board Attorney Weiler for approval. At- torney Weiler simply filed the letter away.

The School Board makes much of the fact that the immorality language was only used at the suggestion of Attorney Weiler. While this may have rel- evance with regard to the good faith of the Board members, the School Board as an entity enjoys no such immunity. * * *

juries are not required to determine cases merely by weighing the number of witnesses and volume of testimony presented by each side. Were this so, the School Board would clearly have carried the day. Juries are al- lowedindeed it is their taskto judge the credibility of witnesses and they are free to believe or disbelieve testimony as they see fit. The fact that the jury in this case chose to discredit the Board member’s self-serving testimony and credit plaintiff’s admittedly less-voluminous evidence does not require that its verdict be set aside.

* * *

Since the verdict in this case depended in large part upon the credibil- ity of the Board member’s testimony and since plaintiff presented sufficient evidence to support a jury verdict contrary to this testimony, the School Board’s motion for a J NOV must be denied.

* * * While the exact dollar amount of compensatory damages re- quested by plaintiff’s counsel is somewhat confusing, he never asked for an amount even approaching $2,000,000. This court is fully aware that plaintiff is not limited to the amount of damages requested in argument. The amount awarded however must bear at least some relationship to the evidence pre- sented at trial. In this court’s opinion, $750,000 will more than adequately serve to compensate plaintiff for the injuries she suffered in this case. The damage award against the School Board is remitted accordingly.

* * *

Notes and Questions

Several other courts have ruled similarly to Eckmann. See Ponton v. New- port News School Board, 632 F. Supp. 1056 (Va. 1986); Avery v. Homewood City Board of Education, 674 F.2d 337 (5th Cir. 1982); Cochran v. Chidester School District, 456 F. Supp. 390 (Ark. 1978); Brown v. Bathke, 566 F.2d 588 (8th Cir. 1977); New Mexico State Board of Education v. Stoudt, 571 P.2d 1186 (N.M. 1977); Andrews v. Drew Municipal Separate School District, 507 F.2d 611 (5th Cir. 1975); and Drake v. Covington County Board of Education, 371 F. Supp. 974 (Ala. 1974).

In a seven-to-two decision, the Court established that an insurance plan violated the 1964 Civil Rights Act and the Pregnancy Discrimination

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Act because it offered full hospitalization benefits to husbands of female workers but excluded pregnancy from the full coverage offered to the wives of male workers. The decision stated that under the plan “husbands of female employees receive a specified level of hospitalization coverage for all conditions; the wives of male employees receive such coverage ex- cept for pregnancy-related conditions.. . . The 1978 act makes clear that it is discriminatory to treat pregnancy-related conditions less favorably than other medical conditions.” Therefore, the plan “unlawfully gives married male employees a benefit package for their dependents that is less inclusive than the dependency coverage provided to married female employees.” See Newport News Shipbuilding and Dry Dock Company v. Equal Employment Opportunity Commission, 462 U.S. 669 (1983).

A U.S. Court of Appeals for the Fifth Circuit recognized that a Florida teacher ‘s decision to breast-feed her baby had some constitutional dimensions. In its decision, the court contended that the teacher’s right to breast-feed her baby could be limited if this practice interfered with im- portant educational interests that were furthered by the rules that prohib- ited teachers from bringing their children to work with them for any reason. See Dike v. School Board of Orange County, 650 F.2d 783 (5th Cir. 1981). In 1993, Florida became the first state in the nation to pass legisla- tion guaranteeing a woman’s right to breast-feed her baby in public. The law forbids the arrest of a breast-feeding mother for obscenity, lewdness, or public nudity.

Two other Court decisions addressed issues related to pregnancy. In California Federal Savings and Loan Association v. Guerra, 479 U.S. 272 (1987), a six-to-three decision, the Court upheld a California law granting four months of unpaid maternity leave to pregnant workers and guaranteeing that they could return to their former jobs. However, a unanimous Supreme Court decision upheld a Missouri law that did not provide either reinstate- ment or unemployment benefits to a woman who left her job because of pregnancy. Under the law, benefits were available only to those who left work for job-related reasons. Layoffs or illnesses caused by a job were con- sidered job-related; pregnancy was not. See Wimberly v. Labor and Industrial Relations Commission of Missouri, 479 U.S. 511 (1987).

A federal district court held that a single teacher had a constitutional right to become pregnant by artificial insemination. Denying her this right, the court reasoned, would be sex discrimination under Title VII. See Cameron v. Board of Education of Hillsboro, Ohio City School District, 795 F.Supp. 228 (Ohio 1992).

A private school’s dismissal of a teacher for engaging in nonmarital sex was upheld in Boyd v. Harding Academy of Memphis, Inc., 88 F.3d 410 (6th Cir. 1996). Although the teacher alleged she was dismissed because she was pregnant, which would have been a violation of Title VII, the school

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maintained her dismissal was based on violation of the extramarital sex policy for which both men and women had been dismissed over the years.

D. Religious Discrimination

Title VII of the Civil Rights Act of 1964 provides in part that an employer must “reasonably accommodate to an employee’s . . . religious obser- vances or practice without undue hardship on the conduct of the em- ployer’s business.” In Ansonia Board of Education v. Philbrook, 479 U.S. 60 (1986), the Court considered a teacher’s request to use, for religious pur- poses, his allotment of “necessary personal business” leave. The teacher’s collective-bargaining agreement allowed three days of paid religious leave and three days of paid personal business leave; religious observances were not included among the enumerated reasons for taking a leave of absence for personal business. The school board required the teacher to take un- paid leave for all religious observances exceeding three days. Upholding the board, the Court declared the policy to be a “reasonable accommoda- tion” under Title VII.

Most states have laws that, like Title VII, require employers to ac- commodate employees’ religious practices. However, a point exists at which such accommodation may violate the Establishment Clause of the United States Constitution’s First Amendment. The Supreme Court struck down a Connecticut statute that allowed employees to absent themselves from work on any day that they claimed as their Sabbath. The Court found that the statute imposed on employers the absolute duty to conform their business practices to the religious practices of their employees. The statute allowed no exceptions, for example, in the event of a teacher’s claiming a Friday Sabbath. The Court concluded that the law’s primary effect was the advancement of a particular religious practice. See Estate of Thornton v. Cal- dor, Inc., 472 U.S. 703 (1985).

Pennsylvania’s “Garb Statute” was challenged under Title VII by a Muslim teacher who had the conviction that Muslim women should, when in public, cover their entire body except for the hands and face. A federal appellate court upheld the school district’s refusal to allow her to wear such dress. The court ruled that the preservation of an atmosphere of religious neutrality in the public schools is a compelling state interest jus- tifying statutes prohibiting teachers from wearing religious garb while teaching. The court concluded that it would have imposed an “undue hardship” on the school system to accommodate the teacher. See United States v. Board of Education for the School District of Philadelphia, 911 F.2d 882 (3rd Cir. 1990). However, a lower court held that a person who was not given a job because she wore head coverings, in keeping with her religious faith, during the interview was religious discrimination. The sought-after position was for a third-grade counselor with a private corporation pro-

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viding services to nonpublic school students under a contract with a pub- lic school district. The court reasoned that Pennsylvania’s religious garb statute was inapplicable because third-grade students would not recog- nize the head coverings as indicating the applicant’s Muslim faith. The fact that the head coverings would offend the religious sensibilities of per- sons affiliated with parochial schools was also insufficient in bringing this issue under the statute. See EEOC v. READS, Inc., 759 F. Supp. 1150 (Pa. 1991). Oregon laws that disallowed the wearing of religious dress while teaching and that provided for suspension and teaching certificate revoca- tion have also been upheld. In this instance, the teacher wore the white clothes and turban of a Sikh Hindu. See Cooper v. Eugene School District No. 4J, 301 Or. 358, (1986), appeal dismissed, 480 U.S. 942 (1987). “Garb” in such statutes is often defined as any dress, mark, emblem, or insignia indicating a teacher’s membership in or adherence to a religious order, sect, or de- nomination. Would such a definition include a cross, crucifix, Star of David, hairstyle, or yarmulke?

A federal appellate court struck down a requirement that teachers at the private Kamehameha School be Protestant. The court reasoned that ex- cept for the school’s religious education teachers (who had a “bona fide occupational qualification” under Title VII), other teachers at the school provided instruction in the traditional secular way and there was nothing to suggest that adherence to the Protestant faith was essential to the per- formance of that job. The interpreted section of Title VII stated:

. it shall not be an unlawful employment practice for an employer to hire and employ employees … on the basis of his religion … in those certain in- stances where religion . . . is a bona fide occupational qualification reason- ably necessary to the normal operation of that particular business or enterprise. (p. 465)

See EEOC v. Kamehameha Schools/Bishop Estate, 990 F.2d 458 (9th Cir. 1993), cert. denied, 510 U.S. 963 (1993).

Teachers’ use of school facilities for religious meetings has also come under judicial purview. An Indiana school-district policy that banned reli- gious meetings of teachers on school property, before the teachers were to report for duty, was upheld. See May v. Evansville-Vanderburgh School Cor- poration, 787 F.2d 1105 (7th Cir. 1986).

E. Age Discrimination

Under the Age Discrimination in Employment Act (ADEA) of 1967 and its amendments,* it is unlawful for an employer to discriminate against any employee or potential employee on the basis of age except “where age is a

*See Appendix D for material pertaining to this legislatiorc) 0 i3

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bona fide occupational qualification reasonably necessary to the normal operation of the particular business, or where the differentiation is based on reasonable factors other than age.” As originally passed in 1967, the act did not apply to the federal government, to the states and their political subdi- visions, or to private employers with fewer than twenty-five employees. In 1974, however, Congress extended the act’s substantive prohibitions to em- ployers having at least twenty workers and to the federal and state govern- ments and, thus, to public school employees.

Coverage of the act is limited to employees within a specified range of ages. An important effect of the range’s upper limit is to define the min- imum age for mandatory retirement. Coverage in 1967 was limited to workers between the ages of forty and sixty-five. Amendments of 1978 raised the upper limit to age seventy and removed the cap entirely for fed- eral workers. Amendments of 1986 removed the cap for tenured faculty in higher education in 1994.

However, in Kimel v. Florida Board of Regents, 528 U.S. 62 (2000), the United States Supreme Court declared the ADEA unconstitutional as ap- plied to the states, including state public educational institutions. In Kimel, university employees filed suit against the Florida Board of Regents, claiming age discrimination in violation of the ADEA. In defending against these claims, the State asserted immunity from suit under the Eleventh Amendment. Because of the complex interaction of the Eleventh and Fourteenth Amendments in the Court’s analysis in Kimel, this decision resulted in some initial misunderstandings regarding the current status of age discrimination laws. But a careful reading of Kimel clearly establishes that absent a voluntary state waiver of immunity, employees of state agen- cies, including public school employees, can no longer sue under the ADEA. State employees in most states are still protected by state statutes prohibiting age discrimination. However, coverage under some states’ statutes may be less comprehensive than under the ADEA. Because the Court’s decision in Kimel was based on Eleventh Amendment state immu- nity, the ADEA still applies to federal agencies, as well as private busi- nesses with 20 or more employees, including private schools. Does your state have legislation prohibiting age discrimination in employment? If so, does coverage under your state statute differ from coverage under the ADEA?

Courts have generally held that those teaching beyond a specified re- tirement age do so on a year-to-year basis. In addressing this issue, the South Dakota Supreme Court in Monnier v. Todd County Independent School District, 245 N.W. 2d 503 (S.D. 1976) has contended that:

after a school district has adopted a mandatory retirement policy, teachers within that district who attain the age of retirement specified in the policy

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are no longer entitled to the benefits of the continuing contract law. By its very terms the concept of mandatory retirement is inconsistent with the con- cept of continuing contract rights. . . . (p. 505)

VIII. TEACHER BARGAINING

A wide range of practices exists among the fifty states pertaining to school employment relations. These practices vary from states that either have no statutory provisions or prohibit collective bargaining to those that man- date bargaining and allow teachers to strike. Although the majority of states have statutory provisions addressing issues surrounding school em- ployment relations, several states rely on the authority of case law, and a handful of states rely on attorney general opinions.

In those states having statutes pertaining to school employment rela- tions, provisions vary considerably. Some leave teacher negotiation or bargaining rights to the discretion of local school boards, whereas others provide bargaining rights that compare favorably with those held by em- ployees in the private sector. The range of issues addressed in the various statutes include whether or not there are exclusive bargaining rights for one teacher group, which groups may be included in the bargaining unit, dues checkoff, the establishment of agency shops, service fees, the scope of bargaining, impasse procedures, and strike provisions.

According to National Education Association data, approximately 70 percent of the states have statutes providing for good-faith bargaining be- tween local school boards and bargaining groups. Alabama and Maryland have statutes requiring that a school board “meet and confer” with repre- sentatives of employee organizations. In contrast, North Carolina and Texas prohibit bargaining by statute, and Georgia and Virginia prohibit the practice by court order.

Virtually all of the states with collective bargaining legislation re- quire supervisory personnelindividuals above the assistant principal levelto be in separate bargaining units. In some of these states, statutory provisions or local policies exclude supervisory personnel from the collec- tive bargaining process entirely.

The right of public school teachers to strike is a highly controversial subject. Not all statutory school employment provisions address the issue of strikes. According to National Education Association statistics, several states (Alaska, Hawaii, Illinois, Minnesota, Ohio, Oregon, Pennsylvania, and Wisconsin) have statutory provisions that allow teachers to strike under certain conditions. Statutes in approximately half of the states specifically prohibit strikes by teachers, and in some instances penalties for striking are specified.

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An important and often litigated issue for teachers who do not wish to join a union has to do with the collection of and uses of compulsory union dues. This issue is addressed in Lehnert v. Ferris Faculty Association.

LEHNERT v. FERRIS FACULTY ASSOCIATION

Supreme Court of the United States, 1991 500 U. S. 507

JUSTICE BLACKMUN announced the judgment of the Court and deliv- ered the opinion of the Court * * *

This case presents issues concerning the constitutional limitations, if any, upon the payment, required as a condition of employment, of dues by a nonmember to a union in the public sector.

Michigan’s Public Employment Relations Act (Act), Mich. Comp. Laws §§ 423.201 et seq. (1978), provides that a duly selected union shall serve as the exclusive collective-bargaining representative of public employees in a particular bargaining unit. The Act, which applies to faculty members of a public educational institution in Michigan, permits a union and a govern- ment employer to enter into an “agency shop” arrangement under which employees within the bargaining unit who decline to become members of the union are compelled to pay a “service fee” to the union.

Respondent Ferris Faculty Association (FFA), an affiliate of the Michi- gan Education Association (MEA) and the National Education Association (N EA), serves, pursuant to this provision, as the exclusive bargaining repre- sentative of the faculty of Ferris State College in Big Rapids, Mich. Ferris is a public institution established under the Michigan Constitution and is funded by the State. * * * Since 1975, the FFA and Ferris have entered into succes- sive collective-bargaining agreements containing agency shop provisions. Those agreements were the fruit of negotiations between the FFA and re- spondent Board of Control, the governing body of Ferris. * * *

Subsequent to this Court’s decision in Abood v. Detroit Board of Edu- cation, in which the Court upheld the constitutionality of the Michigan agency-shop provision and outlined permissible uses of the compelled fee by public-employee unions, Ferris proposed, and the FFA agreed to, the agency-shop arrangement at issue here. That agreement forced all employ- ees in the bargaining unit who did not belong to the FFA to pay a service fee equivalent to the amount of dues required of a union member. Of the $284.00 service fee for 1981-1982, the period at issue, $24.80 went to the FFA, $211.20 to the MEA, and $48.00 to the NEA.

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Following a partial settlement, petitioners took an appeal limited to the claim that the District Court erred in holding that the costs of certain dis- puted union activities were constitutionally chargeable to the plaintiff faculty members. Specifically, petitioners objected to the District Court’s conclusion that the union constitutionally could charge them for the costs of (1) lobby- ing and electoral politics; (2) bargaining, litigation, and other activities on behalf of persons not in petitioners’ bargaining unit; (3) public relations ef- forts; (4) miscellaneous professional activities; (5) meetings and conventions of the parent unions; and (6) preparation for a strike which, had it material- ized, would have violated Michigan law.

* * * It was not until the decision in Abood that this Court addressed the

constitutionality of union-security provisions in the public-employment con- text. There, the Court upheld the same Michigan statute which is before us today against a facial First Amendment challenge. At the same time, it deter- mined that the claim that a union has utilized an individual agency-shop agreement to force dissenting employees to subsidize ideological activities could establish, upon a proper showing, a First Amendment violation. In so doing, the Court set out several important propositions:

First, it recognized that “No compel employees financially to support their collective-bargaining representative has an impact upon their First Amendment interests.” * * * Unions traditionally have aligned themselves with a wide range of social, political, and ideological viewpoints, any num- ber of which might bring vigorous disapproval from individual employees. To force employees to contribute, albeit indirectly, to the promotion of such positions implicates core First Amendment concerns. * * *

Second, the Court in Abood determined that, as in the private sector, compulsory affiliation with, or monetary support of, a public-employment union does not, without more, violate the First Amendment rights of public employees. Similarly, an employee’s free speech rights are not unconstitu- tionally burdened because the employee opposes positions taken by a union in its capacity as collective-bargaining representative. * * *

In this connection, the Court indicated that the considerations that jus- tify the union shop in the private contextthe desirability of labor peace and eliminating “free riders”are equally important in the public-sector work- place. Consequently, the use of dissenters’ assessments “for the purposes of collective bargaining, contract administration, and grievance adjustment,” * * * approved under the Railway Labor Act (RLA) is equally permissible when authorized by a State vis-d-vis its own workers.

Third, the Court established that the constitutional principles that pre- vent a State from conditioning public employment upon association with a political party, see Elrod v. Burns, * * * or upon professed religious allegiance, see Torcaso v. Watkins, * * * similarly prohibit a public employer “from

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requiring [an employee] to contribute to the support of an ideological cause he may oppose as a condition of holding a job” as a public educator. * * *

* * * Thus, although ihe Court’s decisions in this area prescribe a case-by-case

analysis in determining which activities a union constitutionally may charge to dissenting employee’s, they also set forth several guidelines to be followed in making such determinations. Hanson and Street and their progeny teach that chargeable activities must (1) be “germane” to collective-bargaining activity; (2) be justified by the government’s vital policy interest in labor peace and avoiding “free riders”; and (3) not significantly add to the burdening of free speech that is inherent in the allowance of an agency or union shop.

* * *

The Court of Appeals determined that unions constitutionally may sub- sidize lobbying and other political activities with dissenters’ fees so long as those activities are “pertinent to the duties of the union as a bargaining rep- resentative.” * * * In reaching this conclusion, the court relied upon the in- herently political nature of salary and other workplace decisions in public employment. “To represent their members effectively,” the court concluded, “public sector unions must necessarily concern themselves not only with ne- gotiations at the bargaining table but also with advancing their members’ in- terests in legislative and other ‘political’ arenas.” * * *

This observation is clearly correct. Public-sector unions often expend considerable resources in securing ratification of negotiated agreements by the proper state or local legislative body. * * * Similarly, union efforts to ac- quire appropriations for approved collective-bargaining agreements often serve as an indispensable pre-requisite to their implementation. * * * It was in reference to these characteristics of public employment that the Court in Abood discussed the “somewhat hazier” line between bargaining-related and purely ideological activities in the public sector. * * * The dual roles of government as employer and policymaker in such cases make the analogy between lobbying and collective bargaining in the public sector a close one.

This, however, is not such a case. Where, as here, the challenged lob- bying activities relate not to the ratification or implementation of a dis- senter’s collective bargaining agreement, but to financial support of the employee’s profession or of public employees generally, the connection to the union’s function as bargaining representative is too attenuated to justify compelled support by objecting employees.

* * *

Labor peace is not especially served by allowing such charges be- cause, unlike collective-bargaining negotiations between union and man- agement, our national and state legislatures, the media, and the platform of public discourse are public fora open to all. Individual employees are free to petition their neighbors and government in opposition to the union which represents them in the workplace. Because worker and union cannot be said

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to speak with one voice, it would not further the cause of harmonious indus- trial relations to compel objecting employees to finance union political ac- tivities as well as their own.

Similarly, while we have endorsed the notion that nonunion workers ought not be allowed to benefit from the terms of employment secured by union efforts without paying for those services, the so-called “free-rider” con- cern is inapplicable where lobbying extends beyond the effectuation of a collective-bargaining agreement. The balancing of monetary and other policy choices performed by legislatures is not limited to the workplace but typically has ramifications that extend into diverse aspects of an employee’s life.

Accordingly, we hold that the State constitutionally may not compel its employees to subsidize legislative lobbying or other political union activities outside the limited context of contract ratification or implementation.

* * * The essence of the affiliation relationship is the notion that the parent

will bring to bear its often considerable economic, political, and informational resources when the local is in need of them. Consequently, that part of a local’s affiliation fee which contributes to the pool of resources potentially available to the local is assessed for the bargaining unit’s protection, even if it is not actually expended on that unit in any particular membership year.

* * *

We therefore conclude that a local bargaining representative may charge objecting employees for their pro rata share of the costs associated with otherwise chargeable activities of its state and national affiliates, even if those activities were not performed for the direct benefit of the objecting em- ployees’ bargaining unit. This conclusion, however, does not serve to grant a local union carte blanche to expend dissenters’ dollars for bargaining activi- ties wholly unrelated to the employees in their unit. The union surely may not, for example, charge objecting employees for a direct donation or interest- free loan to an unrelated bargaining unit for the purpose of promoting employee rights or unionism generally. Further, a contribution by a local union to its parent that is not part of the local’s responsibilities as an affiliate but is in the nature of a charitable donation would not be chargeable to dis- senters. There must be some indication that the payment is for services that may ultimately enure to the benefit of the members of the local union by virtue of their membership in the parent organization. And, as always, the union bears the burden of proving the proportion of chargeable expenses to total expenses. * * * We conclude merely that the union need not demon- strate a direct and tangible impact upon the dissenting employee’s unit.

* * *

The Court of Appeals found that the union could constitutionally charge petitioners for the costs of a Preserve Public Education (PPE) program designed to secure funds for public education in Michigan, and that portion

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of the MEA publication, the Teacher’s Voice, which reported these activities. Petitioners argue that, contrary to the findings of the courts below, the PPE program went beyond lobbying activity and sought to affect the outcome of ballot issues and “millages” or local taxes for the support of public schools. Given our conclusion as to lobbying and electoral politics generally, this fac- tual dispute is of little consequence. None of these activities was shown to be oriented toward the ratification or implementation of petitioner’s collective- bargaining agreement. We hold that none may be supported through the funds of objecting employees.

Petitioners next challenge the Court of Appeals’ allowance of several activities that the union did not undertake directly on behalf of persons within petitioners’ bargaining unit. This objection principally concerns NEA “program expenditures” destined for States other than Michigan, and the ex- penses of the Teacher’s Voice listed as “Collective Bargaining” and “Litiga- tion.” Our conclusion that unions may bill dissenting employees for their share of general collective-bargaining costs of the state or national parent union is dispositive as to the bulk of the NEA expenditures. The District Court found these costs to be germane to collective bargaining and similar support services and we decline to disturb that finding. No greater relation- ship is necessary in the collective-bargaining context.

This rationale does not extend, however, to the expenses of litigation that do not concern the dissenting employees’ bargaining unit or, by exten- sion, to union literature reporting on such activities. * * *

The Court of Appeals determined that the union constitutionally could charge petitioners for certain public-relations expenditures. In this connec- tion, the court said: “Public relations expenditures designed to enhance the reputation of the teaching profession . . . are, in our opinion, sufficiently re- lated to the unions’ duty to represent bargaining unit employees effectively so as to be chargeable to dissenters.” * * * We disagree. * * *

* * * The District Court and the Court of Appeals allowed charges for

those portions of the Teachers’ Voice that concern teaching and education generally, professional development, unemployment, job opportunities, award programs of the MEA, and other miscellaneous matters. Informa- tional support services such as these are neither political nor public in na- ture. Although they do not directly concern the members of petitioners’ bargaining unit, these expenditures are for the benefit of all and we dis- cern no additional infringement of First Amendment rights that they might occasion. In short, we agree with the Court of Appeals that these expenses are comparable to the de minimis social activity charges approved in Ellis. * * *

The Court of Appeals ruled that the union could use the fees of object- ing employees to send FFA delegates to the MEA and the NEA conventions and to participate in the 13E Coordinating Council, another union structure.

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Petitioners challenge that determination and argue that, unlike the national convention expenses found to be chargeable to dissenters in Ellis, the meet- ings at issue here were those of affiliated parent unions rather than the local, and therefore do not relate exclusively to petitioners’ unit.

We need not determine whether petitioners could be commanded to support all the expenses of these conventions. The question before the Court is simply whether the unions may constitutionally require petitioners to sub- sidize the participation in these events of delegates from the local. We hold that they may. That the conventions were not solely devoted to the activities of the FFA does not prevent the unions from requiring petitioners’ support. We conclude above that the First Amendment does not require so close a connection. Moreover, participation by members of the local in the formal activities of the parent is likely to be an important benefit of affiliation. * * *

The chargeability of expenses incident to preparation for a strike which all concede would have been illegal under Michigan law, * * * is a provoca- tive question. At the beginning of the 1981-1982 fiscal year, the FFA and Fer- ris were engaged in negotiating a new collective-bargaining agreement. The union perceived these efforts to be ineffective, and began to prepare a “job action” or, in more familiar terms, to go out on strike. These preparations en- tailed the creation by the FFA and the MEA of a “crisis center’ or “strike head- quarters.” * * *

* * * Petitioners can identify no determination by the State of Michigan that

mere preparation for an illegal strike is itself illegal or against public policy, and we are aware of none. Further, we accept the rationale provided by the Court of Appeals in upholding these charges that such expenditures fall “within the range of reasonable bargaining tools available to a public sector union during contract negotiations.” * * *

In sum, these expenses are substantively indistinguishable from those appurtenant to collective-bargaining negotiations. The District Court and the Court of Appeals concluded, and we agree, that they aid in those negotia- tions and enure to the direct benefit of members of the dissenters’ unit. Fur- ther, they impose no additional burden upon First Amendment rights. The union may properly charge petitioners for those costs.

It is so ordered. * * *

Notes

As seen in this decision, Michigan employs an agency shop arrangement under which union membership is not mandatory; however, nonunion members must pay a “service fee” to the union. Although under state law

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there may be differences between the public and private sectors, generally under a “closed shop,” union membership is a condition of employment, and under an “open shop” union membership and related activities may be restricted or not allowed.

In addition to Abood v. Detroit Board of Education, 431 U.S. 209 (1977) mentioned in Lehnert, another Court decision, Chicago Teachers Union Local No. 1 v. Hudson, 475 U.S. 292 (1986), addressed fair procedures governing a union’s collection of agency fees from nonmembers. In its decision, the Court held that the Constitution requires (1) an adequate explanation of the basis for the fee; (2) a reasonably prompt opportunity to challenge, be- fore an impartial decision maker, the amount of the fee; and (3) an escrow for the amounts reasonably in dispute while such a challenge is pending.

Educators in states without collective bargaining, negotiation, or even “meet and confer” legislation usually find the Lehnert decision star- tling in its description of union activity. For instance, such educators often have no notion of the “free-rider” problem discussed in the decision.

IX. POLITICAL ACTIVITIES

Not many states have addressed the issue of whether restrictions should be placed on the political activities of public school teachers. Although several states have statutes covering the political candidacy of public school employees, most of the statutory provisions are far from compre- hensive.

Four significant legal issues are involved when a public school em- ployee becomes a candidate for public office or campaigns for other polit- ical candidates and issues. These issues are (1) the school employee’s First Amendment rights of freedom of expression and association, (2) incom- patibility of office provisions, (3) conflict-of-interest provisions, and (4) nepotism provisions.

Although a public school employee has the First Amendment right to run for public office, a distinction must be made between the employee’s right to run for public office and the right to continue school employment while holding public office. Well-settled case law has established that a public school employee may not simultaneously hold a public office and his or her school employment if this is against (1) incompatibility-of-office provisions, (2) conflict-of-interest provisions, and (3) provisions providing for the tripartite separation of the divisions of government. Courts have consistently held that these provisions represent a compelling state need that justifies infringements on the school employee’s political rights.

Under state incompatibility-of-office and conflict-of-interest provi- sions, courts have established that public school employees may not main- tain their employment while holding office on (1) their employing board

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of education or (2) any governmental body, or while holding an office that has supervisory powers over their employing school district. However, in the absence of statutory prohibitions, public school employees may serve on a board of education that is not their employing board.

Whether public school employees may maintain their employment and serve in the state legislature depends on the conflict-of-interest statute covering the state’s legislators. In those states that prohibit legis- lators from having a direct or indirect interest in any contract dependent upon funds appropriated while they serve in the legislature, school em- ployees may not be able to continue school employment. However, in states that do not have this type of statutory provision, courts have held that the school employee may serve in the legislature but that it is reason- able for the board of education to require the employee to take an unpaid leave of absence while so serving. Under incompatibility-of-office provi- sions, courts have held that there is no incompatibility between local school employment and serving in the state legislature. However, some courts have held that it is incompatible for employees of the state univer- sity system to serve simultaneously in the legislature and hold their uni- versity jobs.

Under state nepotism provisions, a school employee’s continued em- ployment may be in jeopardy when a relative is elected to his or her em- ploying board of education. Or the board member’s continuation in office may be in jeopardy if he or she has relatives who are employed by the school board. Some state courts, under general nepotism statutes, do not strictly apply nepotism provisions to certificated school personnel. These courts have applied the rationale that state certification requirements and teacher tenure acts prevent nepotism practices in the hiring of school em- ployees. On the other hand, where an education statute addresses nepo- tism issues on the part of members of a board of education, the courts strictly apply the language of such a statute.

A public vocational school district’s antinepotism policy that pre- vented a married couple from working together at the same school was challenged in Montgomery v. bur, 101 F.3d 117 (6th Cir. 1996). In its decision, the court held that the policy did not violate the teachers’ First Amendment associational rights. The court declared that the policy was rationally related to legitimate goals, including avoiding friction if the marriage broke down, promoting collegiality among teachers, minimizing the friction caused by married teachers who have a “you and I against the world” mentality and easing the task of managers. Interestingly enough, the antinepotism policy did not apply to couples who were simply living together.

Public school employees have the First Amendment right to cam- paign for other political candidates and issues; however, this right is not absolute. Courts have held that these types of activities (1) may not take place during working hours, (2) may not take place in the classroom,

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(3) may not interfere with the school employee’s job performance, and (4) are not permissible if the employee uses his or her position of employment to influence the outcome of a political election. Further, courts have held that these activities can be restricted if they result in material disruption of the normal administrative operations of the school system.

A school district policy that prohibited teachers from engaging in po- litical activities on district property at any time, thereby preventing off- duty employees from soliciting votes at official polling places located on school property, was held to violate the teachers’ First Amendment rights. The court, in Castle v. Colonial School District, 939 F. Supp. 458 (Pa. 1996), held that the views of the employees on the merits of candidates for the school board involved matters of “public concern.” The court asserted that the school district’s alleged interests, such as disruption of the educational process, protecting voters from undue influence, and avoiding the appear- ance of official endorsement of candidates, did not outweigh the teachers’ freedom-of-speech interests.

Although school employees become actively involved in school board elections in some states, the Kentucky Supreme Court upheld legis- lation that prohibited employees of local school districts from taking part in the management of any political campaign for school board and that forbade school board candidates from soliciting or accepting any political assessment, contribution, or service of any employee of the school district. The legislation had been enacted to cleanse public education of political patronage and influence. See State Board for Elementary and Secondary Edu- cation v. Howard, 834 S.W. 2d 657 (Ky. 1992).

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CHAPTER FIVE

School Desegregation

A Supreme Court decision in 1896 established the “separate but equal” doctrine regarding public facilities and services used by Negroes. This de- cision, Plessy v. Ferguson, established a legal basis for segregated public facilities and services, thereby ushering in the era of de jure segregation in America. Where there were no state statutory or constitutional provisions pertaining to segregation, Plessy enabled custom to be affirmed by also providing a legal basis for dual school systems in which black and white students were segregated. Although generally associated with the South- ern states, dual school systems were operated in several non-Southern states. Under the dual school system, black students in a community at- tended segregated schools, which were staffed solely by black teachers, and white students attended schools exclusively for whites. Little or no interaction of any kind took place between the schools serving black stu- dents and those attended by white students. Such de jure segregation, which had its most rigid codification and practice in the Southern public schools, had the force of the law behind it because it was mandated by state constitutional and/or statutory provisions and official local school policies.

A 1954 United States Supreme Court decision, Brown v. Board of Education, reversed the Plessy doctrine as it pertained to public schools by declaring that in the field of education the doctrine of “separate but equal” had no place. This landmark reversal by the Supreme Court held de jure public school segregation to be unconstitutional. Since this deci- sion, courts have had a veritable stream of cases brought before them in which they have had to determine whether alleged segregative policies in Southern schools, non-Southern schools, and private schools were un- constitutional.

This chapter’s primary objective is to provide a historical perspective to public school desegregation. Paramount to gaining such a perspective is

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an understanding of the concept of de jure segregation, which provided the courts with a legal mechanism to attack racial segregation in the public schools. Employing this stratagem resulted in the earliest desegregation efforts focusing almost entirely in the Southern public schools. Addition- ally, this analysis includes revealing the progress of the dramatic influence of the federal courts, particularly the United States Supreme Court, for two decades in attempting to effect desegregation to more recent times when the Court no longer provides a consistent sympathetic ear for further de- segregation efforts.

Plessy V. Ferguson poignantly describes the then prevalent state view of inferiority in which black Americans were held. The decision clearly reveals the official stamp of de jure separation placed between the races a century ago, a view that prevailed for nearly six decades until over- turned by the dramatic Brown decisions.

I. HISTORICAL PERSPECTIVE

A. Separate but Equal Doctrine

PLESSY v. FERGUSON Supreme Court of the United States, 1896

163 U.S. 537

MR. JUSTICE BROWN, after stating the case, delivered the opinion of the court.

This case turns upon the constitutionality of an act of the General As- sembly of the State of Louisiana, passed in 1890, providing for separate rail- way carriages for the white and colored races. * * *

The first section of the statute enacts “that all railway companies carry- ing passengers in their coaches in this State, shall provide equal but separate accommodations for the white, and colored races, by providing two or more passenger coaches for each passenger train, or by dividing the passenger coaches by a partition so as to secure separate accommodations: Provided, That this section shall not be construed to apply to street railroads. No per- son or persons shall be admitted to occupy seats in coaches other than the ones assigned to them on account of the race they belong to.”

By the second section it was enacted “that the officers of such passen- ger trains shall have the power and are hereby required to assign each pas- senger to the coach or compartment used for the race to which such passenger belongs; any passenger insisting on going into a coach or com- partment to which by race he does not belong, shall be liable to a fine of twenty-five dollars, or in lieu thereof to imprisonment for a period of not more than twenty days in the parish prison, and any officer of any railroad

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insisting on assigning a passenger to a coach or compartment other than the one set aside for the race to which said passenger belongs, shall be liable to a fine of twenty-five dollars, or in lieu thereof to imprisonment for a period of not more than twenty days in the parish prison; and should any passenger refuse to occupy the coach or compartment to which he or she is assigned by the officer of such railway, said officer shall have power to refuse to carry such passenger on his train, and for such refusal neither he nor the railway company which he represents shall be liable for damages in any of the courts of this State.”

The third section provides penalties for the refusal or neglect of the of- ficers, directors, conductors and employees of railway companies to comply with the act, with a proviso that “nothing in this act shall be construed as ap- plying to nurses attending children of the other race.” The fourth section is immaterial.

The information filed in the criminal District Court charged in sub- stance that Plessy, being a passenger between two stations within the State of Louisiana, was assigned by officers of the company to the coach used for the race to which he belonged, but he insisted upon going into a coach used by the race to which he did not belong. Neither in the information nor the plea was his particular race or color averred.

The petition for the writ of prohibition averred that petitioner was seven- eighths Caucasian and one-eighth African blood; that the mixture of colored blood was not discernible in him, and that he was entitled to every right, priv- ilege and immunity secured to citizens of the United States of the white race; and that, upon such theory, he took possession of a vacant seat in a coach where passengers of the white race were accommodated, and was ordered by the conductor to vacate said coach and take a seat in another assigned to per- sons of the colored race, and having refused to comply with such demand he was forcibly ejected with the aid of a police officer, and imprisoned in the parish jail to answer a charge of having violated the above act.

The constitutionality of this act is attacked upon the ground that it con- flicts both with the Thirteenth Amendment of the Constitution, abolishing slavery, and the Fourteenth Amendment, which prohibits certain restrictive legislation on the part of the States.

1. That it does not conflict with the Thirteenth Amendment, which abolished slavery and involuntary servitude, except as a punishment for crime, is too clear for argument. Slavery implies involuntary servitudea state of bondage; the ownership of mankind as a chattel, or at least the control of the labor and services of one man for the benefit of another, and the absence of a legal right to the disposal of his own person, property and services. * * *

* * * A statute which implies merely a legal distinction between white and

colored racesa distinction which is founded in the color of the two races,

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and which must always exist so long as white men are distinguished from the other race by colorhas no tendency to destroy the legal quality of the two races, or reestablish a state of involuntary servitude. Indeed, we do not un- derstand that the Thirteenth Amendment is strenuously relied upon by the plaintiff in error in this connection.

2. By the Fourteenth Amendment, all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are made citizens of the United States and of the State wherein they reside; and the States are forbidden from making or enforcing any law which shall abridge the privi- leges or immunities of citizens of the United States, or shall deprive any per- son of life, liberty or property without due process of law, or deny to any person within their jurisdiction the equal protection of the laws.

The proper construction of this amendment was first called to the at- tention of this court in the Slaughter-house cases, 16 Wall. 36, which in- volved, however, not a question of race, but one of exclusive privileges. The case did not call for any expression of opinion as to the exact rights it was in- tended to secure to the colored race, but it was said generally that its main purpose was to establish the citizenship of the negro; to give definitions of citizenship of the United States and of the States, and to protect from the hos- tile legislation of the States the privileges and immunities of citizens of the United States, as distinguished from those of citizens of the States.

The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions based upon color, or to en- force social, as distinguished from political equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even re- quiring, their separation in places where they are liable to be brought into contact do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the compe- tency of the state legislatures in the exercise of their police power. The most common instance of this is connected with the establishment of separate schools for white and colored children, which has been held to be a valid exercise of the legislative power even by courts of States where the political rights of the colored race have been longest and most earnestly enforced.

One of the earliest of these cases is that of Roberts v. City of Boston, 5 Cush. 198, in which the Supreme Judicial Court of Massachusetts held that the general school committee of Boston had power to make provision for the instruction of colored children in separate schools established exclusively for them, and to prohibit their attendance from the other schools. * * * lt was held that the powers of the committee extended to the establishment of sep- arate schools for children of different ages, sexes and colors, and that they might also establish special schools for poor and neglected children, who have become too old to attend the primary school, and yet have not ac- quired the rudiments of learning, to enable them to enter the ordinary

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schools. Similar laws have been enacted by Congress under its general power of legislation over the District of Columbia, * * * as well as by the leg- islatures of many of the States, and have been generally, if not uniformly, sus- tained by the courts. * * *

Laws forbidding the intermarriage of the two races may be said in a technical sense to interfere with the freedom of contract, and yet have been universally recognized as within the police power of the State. * * *

The distinction between laws interfering with the political equality of the negro and those requiring the separation of the two races in schools, the- atres and railway carriages has been frequently drawn by this court. Thus in Strauder v. West Virginia, it was held that a law of West Virginia limiting white male persons, 21 years of age and citizens of the State, the right to sit upon juries, was a discrimination which implied a legal inferiority in civil so- ciety, which lessened the security of the right of the colored race, and was a step toward reducing them to a condition of servility. Indeed, the right of the colored man that, in the selection of jurors to pass upon his life, liberty and property, there shall be no exclusion of his race, and no discrimination against them because of color, has been asserted in a number of cases. * * *

* * *

So far, then, as a conflict with the Fourteenth Amendment is con- cerned, the case reduces itself to the question of whether the statute of Louisiana is a reasonable regulation, and with respect to this there must nec- essarily be a large discretion on the part of the legislature. In determining the question of reasonableness it is at liberty to act with reference to the estab- lished usages, customs and traditions of the people, and with a view to the promotion of their comfort, and the preservation of the public peace and good order. Gauged by this standard, we cannot say that a law which autho- rized or even requires the separation of the two races in public conveyances is unreasonable, or more obnoxious to the Fourteenth Amendment than the acts of Congress requiring separate schools for colored children in the Dis- trict of Columbia, the constitutionality of which does not seem to have been questioned, or the corresponding acts of state legislatures.

We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it. The argument necessarily assumes that if, as had been more than once the case, and is not unlikely to be so again, the colored race should become the dominant power in the state legislature, and should enact a law in precisely similar terms, it would thereby relegate the white race to an inferior position. We imagine that the white race, at least, would not acquiesce in this assumption. The argument also assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the negro except by an enforced commingling of the two races.

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We cannot accept this proposition. If the two races are to meet upon terms of social equity, it must be the result of natural affinities, a mutual apprecia- tion of each other’s merits and a voluntary consent of individuals. * * * Leg- islation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation. If the civil and political rights of both races be equal one cannot be inferior to the other civilly or po- litically. If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane.

It is true that the question of the proportion of colored blood necessary to constitute a colored person, as distinguished from a white person, is one upon which there is a difference of opinion in the different States, some holding that any visible admixture of black blood stamps the person as be- longing to the colored race, * * * others that it depends upon the preponder- ance of blood, * * * and still others that the predominance of white blood must only be in the proportion of three-fourths. * * * But these are questions to be determined under the laws of each State and are not properly put in issue in this case. Under the allegations of his petition it may undoubtedly become a question of importance whether, under the laws of Louisiana, the petitioner belongs to the white or colored race.

The judgment of the court below is, therefore,

Affirmed.

MR. JUSTICE HARLAN dissenting. * * *

* * * [Me have before us a state enactment that compels, under penal- ties, the separation of the two races in railroad passenger coaches, and makes it a crime for a citizen of either race to enter a coach that has been as- signed to citizens of the other race.

* * *

However apparent the injustice of such legislation may be, we have only to consider whether it is consistent with the Constitution of the United States.

* * *

In respect of civil rights, common to all citizens, the Constitution of the United States does not, I think, permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights. Every true man has pride of race, and under appropriate circumstances when the rights of others, his equals before the law, are not to be affected, it is his privilege to express such pride and to take such action based upon it as to him seems proper. But I deny that any legislative body or judicial tribunal may have regard to the race of citizens when the civil rights of those citi- zens are involved. Indeed, such legislation, as that here in question, is in- consistent not only with that equality of rights which pertains to citizenship,

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National and State, but with the personal liberty enjoyed by every one within the United States.

The Thirteenth Amendment does not permit the withholding or the de- privation of any right necessarily inhering in freedom. It not only struck down the institution of slavery as previously existing in the United States, but it prevents the imposition of any burdens or disabilities that constitute badges of slavery or servitude. It decreed universal civil freedom in this country. This court has so adjudged. But that amendment having been found inadequate to the protection of the rights of those who had been in slavery, it was fol- lowed by the Fourteenth Amendment, which added greatly to the dignity and glory of American citizenship, and to the security of personal liberty, by declaring that “all persons born or naturalized in the United States, and sub- ject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside,” and that “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property with- out due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.” These two amendments, if enforced according to their true intent and meaning, will protect all the civil rights that pertain to freedom and citizenship. Finally, and to the end that no citizen should be de- nied, on account of his race, the privilege of participating in the political control of his country, it was declared by the Fifteenth Amendment that “the right of the citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color or previous condition of servitude.”

These notable additions to the fundamental law were welcomed by the friends of liberty throughout the world. They removed the race line from our governmental systems. They had, as this court has said, a common purpose, namely, to secure “to a race recently emancipated, a race that through many generations has been held in slavery, all the civil rights that the superior race enjoys.” They declared, in legal effect, this court has further said, “that the law in the States shall be the same for the black as for the white; that all per- sons, whether colored or white, shall stand equal before the laws of the States, and, in regard to the colored race, for whose protection the amend- ment was primarily designed, that no discrimination shall be made against them by law because of their color.” We also said: “The words of the amend- ment, it is true, are prohibitory, but they contain a necessary implication of a positive immunity, or right, most valuable to the colored racethe right to exemption from unfriendly legislation against them distinctively as colored exemption from legal discriminations, implying inferiority in civil society, lessening the security of their enjoyment of the rights which others enjoy, and discriminations which are steps towards reducing them to the condition of a subject race.” It was, consequently, adjudged that a state law that ex- cluded citizens of the colored race from juries, because of their race and

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however well qualified in other respects to discharge the duties of jurymen, was repugnant to the Fourteenth Amendment. * * *

* * *

It was said in argument that the statute of Louisiana does not discrimi- nate against either race, but prescribes a rule applicable alike to white and colored citizens. But this argument does not meet the difficulty. Every one knows that the statute in question had its origins in the purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to ex- clude colored people from coaches occupied by or assigned to white per- sons. Railroad corporations of Louisiana did not make discrimination among whites in the matter of accommodation for travellers. The thing to accom- plish was, under the guise of giving equal accommodation for whites and blacks, to compel the latter to keep to themselves while travelling in railroad passenger coaches. No one would be so wanting in candor as to assert the contrary. The fundamental objection, therefore, to the statute is that it inter- feres with the personal freedom of citizens. * * * If a white man and a black man choose to occupy the same public conveyance on a public highway, it is their right to do so, and no government proceeding alone on grounds of race can prevent it without infringing the personal liberty of each.

* * *

The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth and power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty. But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In re- spect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no ac- count of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved. It is, therefore, to be regretted that this high tribunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a State to regulate the en- joyment by citizens of their civil rights solely upon the basis of race.

In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott case. It was adjudged in that case that the descendants of Africans who were imported into this country and sold as slaves were not included nor intended to be included under the word “citizens” in the Constitution, and could not claim any of the rights and privileges which that instrument provided for and ensured to citizens of the United States; that at the time of the adoption of the Constitution they were “considered as a subordinate and inferior class of be- ings, who had been subjugated by the dominant race, and, whether emanci- pated or not, yet remained subject to their authority, and had no rights or

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privileges but such as those who held the power and the government might choose to grant them.” * * * The recent amendments of the Constitution, it was supposed, had eradicated these principles from our institutions. But it seems that we have yet, in some of the States, a dominant racea superior class of citizens, which assumes to regulate the enjoyment of civil rights, common to all citizens, upon the basis of race. The present decision, it may well be apprehended, will not only stimulate aggressions, more or less brutal and irritating, upon the admitted rights of colored citizens, but will encour- age the belief that it is possible, by means of state enactments, to defeat the beneficent purposes which the people of the United States had in view when they adopted the recent amendments of the Constitution, by one of which the blacks of this country were made citizens of the United States and of the States in which they respectively reside, and whose privileges and immuni- ties, as citizens, the States are forbidden to abridge. Sixty millions of whites are in no danger from the presence here of eight millions of blacks. The des- tinies of the two races, in this country, are indissolubly linked together, and the interests of both require that the common government of all shall not per- mit the seeds of race hate to be planted under the sanction of law. What can more certainly arouse race hate, what more certainly create and perpetuate a feeling of distrust between these races, than state enactments, which, in fact, proceed on the ground that colored citizens are so inferior and de- graded that they cannot be allowed to sit in public coaches occupied by white citizens? That, as all will admit, is the real meaning of such legislation as was enacted in Louisiana.

* * *

There is a race so different from our own that we do not permit those belonging to it to become citizens of the United States. Persons belonging to it are, with few exceptions, absolutely excluded from our country. I allude to the Chinese race. But by the statute in question, a Chinaman can ride in the same passenger coach with white citizens of the United States, while citi- zens of the black race in Louisiana, many of whom, perhaps, risked their lives for the preservation of the Union, who are entitled, by law, to partici- pate in the political control of the State and nation, who are not excluded, by law or by reason of their race, from public stations of any kind, and who have all the legal rights that belong to white citizens, are yet declared to be criminals, liable to imprisonment, if they ride in a public coach occupied by citizens of the white race. * * *

* * * I do not deem it necessary to review the decisions of state courts to

which reference was made in argument. Some, and the most important, of them are wholly inapplicable, because rendered prior to the adoption of the last amendment of the Constitution, when colored people had very few rights which the dominant race felt obliged to respect. Others were made at a time when public opinion, in many localities, was dominated by the

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institution of slavery; when it would not have been safe to do justice to the black man; and when, so far as the rights of blacks were concerned, race prejudice was, practically, the supreme law of the land. Those decisions can- not be guides in the era introduced by the recent amendments of the supreme law, which established universal civil freedom, gave citizenship to all born or naturalized in the United States and residing here, obliterated the race line from our systems of governments, National and State, and placed our free institutions upon the broad and sure foundation of the equality of all men before the law.

* * *

For the reasons stated, I am constrained to withhold my assent from the opinion and judgment of the majority.

Notes and Questions

It was during the Reconstruction period that Southern states adopted so- called Jim Crow laws under which white and black Americans were re- quired to use such separate public facilities as toilets, water fountains, and recreational facilities. In some instances, these laws required using sepa- rate telephone booths, gambling tables, Bibles for swearing in witnesses, cemeteries, theaters, and restaurants. The segregative intent of these laws was to prevent contact between white and black Americans.

Justice Harlan’s dissenting opinion has proven to be prophetic. As we shall see, it is an example of how a dissent’s rationale, in time, may be adopted as a majority view. Justice Harlan, a Kentuckian, was considered a strong defender of civil liberties and is remembered as the “great dis- senter.”

As used in the Plessy decision, what did the term equal in “separate but equal” mean? Did it mean that facilities and services would be equal to those provided white Americans, or did it mean services and facilities af- forded black Americans should be equal? Could “equal” have had any other meaning than the latter one because at the time of the decision whites dominated political, economic, and social life?

Given the racial attitudes of that day, some argue that a contrary de- cision in Plessy would have been widely flouted, thereby weakening the status of the Court as an institution. Do you think it possible that the Court would take such a factor into consideration in rendering a decision?

The Court drew a distinction between “social” and “political” equal- ity. Is the key to this distinction the involvement of state action? Do you agree that the Constitution should protect only “political” equality?

It was not until 1927 that the Court specifically extended the Plessy doctrine to public education. See Gong Lum v. Rice, 275 U.S. 78 (1927).

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B. De/ure Public School Segregation Unconstitutional (Brown I)

Several United States Supreme Court decisions dealing with higher edu- cation segregative practices successfully eroded the Plessy doctrine before it received a mortal blow from Brown v. Board of Education. In one of these cases, a black law school applicant challenged a policy under which he had to attend an out-of-state law school because his home state did not have a “separate” law school for black students. The Court held that such an arrangement did not meet the “separate but equal” doctrine. See Mis- souri ex rel. Gaines v. Canada, 305 U.S. 337 (1938). In another decision, Sweatt v. Painter, 339 U.S. 629 (1950), the Court contended that “separate” law schools in Texas were not “equal” to those attended by white law students. In its decision, the Court not only compared tangible factors between racially segregated law schools but also compared such intangible factors as prestige, faculty reputation, and experience of the administration.

Decisions such as Gaines, Sweatt, and others set the stage for a chal- lenge to the de jure segregative practices in the primary and secondary public schools. This challenge was presented in Brown, and the Court de- clared that segregation in public education was a denial of the Fourteenth Amendment’s guarantee of the equal protection of the laws.

BROWN v. BOARD OF EDUCATION OF TOPEKA

Supreme Court of the United States, 1954 347 U.S. 483

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court. These cases come to us from the States of Kansas, South Carolina, Vir-

ginia, and Delaware. They are premised on different facts and different local conditions, but a common legal question justifies their consideration to- gether in this consolidated opinion.

In each of the cases, minors of the Negro race, through their legal rep- resentatives, seek the aid of the courts in obtaining admission to the public schools of their community on a nonsegregated basis. In each instance, they had been denied admission to schools attended by white children under laws requiring or permitting segregation according to race. This segregation was alleged to deprive the plaintiffs of the equal protection of the laws under the Fourteenth Amendment. In each of the cases other than the Delaware case, a three-judge federal district court denied relief to the plaintiffs on the so-called “separate but equal” doctrine announced by this Court in Plessy v. Ferguson. Under that doctrine, equality of treatment is accorded when the

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races are provided substantially equal facilities, even though these facilities be separate. In the Delaware case, the Supreme Court of Delaware adhered to that doctrine, but ordered that the plaintiffs be admitted to the white schools because of their superiority to the Negro schools.

The plaintiffs contend that segregated public schools are not “equal” and cannot be made “equal,” and that hence they are deprived of the equal protection of the laws. Because of the obvious importance of the question presented, the Court took jurisdiction. Argument was heard in the 1952 Term, and reargument was heard this Term on certain questions propounded by the Court.

Reargument was largely devoted to the circumstances surrounding the adoption of the Fourteenth Amendment in 1868. It covered exhaustively consideration of the Amendment in Congress, ratification by the states, then existing practices in racial segregation, and the views of proponents and op- ponents of the Amendment. This discussion and our own investigation con- vince us that, although the sources cast some light, it is not enough to resolve the problem with which we are faced. At best, they are inconclusive. The most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among “all persons born or naturalized in the United States.” Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments and wished them to have the most limited effect. What others in Congress and the state legislatures had in mind cannot be determined with any degree of certainty.

An additional reason for the inconclusive nature of the Amendment’s history, with respect to segregated schools, is the status of public education at that time. In the South, the movement toward free common schools, sup- ported by general taxation, had not yet taken hold. Education of white chil- dren was largely in the hands of private groups. Education of Negroes was almost nonexistent, and practically all of the race were illiterate. In fact, any education of Negroes was forbidden by law in some states. Today, in con- trast, many Negroes have achieved outstanding success in the arts and sci- ences as well as in the business and professional world. It is true that public school education at the time of the Amendment had advanced further in the North, but the effect of the Amendment on Northern States was generally ig- nored in the congressional debates. Even in the North, the conditions of pub- lic education did not approximate those existing today. The curriculum was usually rudimentary; ungraded schools were common in rural areas; the school term was but three months a year in many states; and compulsory school attendance was virtually unknown. As a consequence, it is not sur- prising that there should be so little in the history of the Fourteenth Amend- ment relating to its intended effect on public education.

In the first cases in this Court construing the Fourteenth Amendment, decided shortly after its adoption, the Court interpreted it as proscribing all

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state-imposed discriminations against the Negro race. The doctrine of “sep- arate but equal” did not make its appearance in this Court until 1896 in the case of Plessy v. Ferguson, supra, involving not education but transportation. American courts have since labored with the doctrine for over half a century. In this Court, there have been six cases involving the “separate but equal” doctrine in the field of public education. In Cumming v. County Board of Ed- ucation, 175 U.S. 528, and Gong Lum v. Rice, 275 U.S. 78, the validity of the doctrine itself was not challenged. In more recent cases, all on the grad- uate school level,, inequality was found in that specific benefits enjoyed by white students were denied to Negro students of the same educational qual- ifications. Missouri ex rel. Gaines v. Canada, 305 U.S. 337; Sipuel v. Okla- homa, 332 U.S. 631; Sweatt v. Painter, 339 U.S. 629; McLaurin v. Oklahoma State Regents, 339 U.S. 637. In none of these cases was it necessary to re- examine the doctrine to grant relief to the Negro plaintiff. And in Sweatt v. Painter, supra, the Court expressly reserved decision on the question whether Plessy v. Ferguson should be held inapplicable to public education.

In the instant cases, that question is directly presented. Here, unlike Sweatt v. Painter, there are findings below that the Negro and white schools involved have been equalized, or are being equalized, with respect to build- ings, curricula, qualifications and salaries of teachers, and other “tangible” factors. Our decision, therefore, cannot turn on merely a comparison of these tangible factors in the Negro and white schools involved in each of the cases. We must look instead to the effect of segregation itself on public education.

In approaching this problem, we cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Fergu- son was written. We must consider public education in the light of its full de- velopment and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools de- prives these plaintiffs of the equal protection of the laws.

Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great ex- penditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later profes- sional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to suc- ceed in life if he is denied the opportunity of an education. Such an oppor- tunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.

We come then to the question presented: Does segregation of chil- dren in public schools solely on the basis of race, even though the physical

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facilities and other “tangible” factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does.

In Sweatt v. Painter, supra, in finding that a segregated law school for Negroes could not provide them equal educational opportunities, this Court relied in large part on “those qualities which are incapable of objective mea- surement but which make for greatness in a law school.” In Mc Laurin v. Oklahoma State Regents, supra, the Court, in requiring that a Negro admit- ted to a white graduate school be treated like all other students, again re- sorted to intangible considerations: “. . . his ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession.” Such considerations apply with added force to children in grade school and high schools. To separate them from others of similar age qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. The effect of this separation on their educa- tional opportunities was well stated by a finding in the Kansas case by a court which nevertheless felt compelled to rule against the Negro plaintiffs:

“Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law: for the policy of separating the races is usually interpreted as de- noting the inferiority of the negro group. A sense of inferiority affects the moti- vation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to retard the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racially in- tegrated school system.”

Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority. Any language in Plessy v. Ferguson contrary to this finding is rejected.

We conclude that in the field of public education the doctrine of “sep- arate but equal” has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment. This disposition makes unnecessary any discus- sion whether such segregation also violates the Due Process Clause of the Fourteenth Amendment.

Because these are class actions, because of the wide applicability of this decision, and because of the great variety of local conditions, the formulation of decrees in these cases presents problems of considerable complexity. On reargument, the consideration of appropriate relief was necessarily subordi- nated to the primary questionthe constitutionality of segregation in public education. We have now announced that such segregation is a denial of the equal protection of the laws. * * *

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Notes and Questions

Brown may be one of the most significant decisions rendered by the United States Supreme Court. By declaring de jure segregation in the public schools unconstitutional, the decision had reverberations far beyond schools. It was a catalyst that forced Americans to examine many forms of government-condoned separation of the races.

It should be emphasized that the consolidated opinion in Brown ad- dressed de jure segregation in the public schools. Constitutional and statu- tory provisions in South Carolina, Virginia, and Delaware and statutory provisions in Kansas required the segregation of black and white students. Consequently, Brown applied only to those states having government- imposed segregation at the time of the decision. It did not have applicabil- ity to de facto segregated public schools outside the South.

The decision was widely criticized by those opposed to desegregation and applauded by those who were for it. Criticism on legalistic grounds fo- cused on the fact that the Court relied on sociological evidence to establish the negative effect of segregation on black students rather than relying on precedent. In this regard, the Court was influenced by the work of Gunnar Myrdal, a Swedish sociologist and economist, who had written An American Dilemma: The Negro Problem and Modern Democracy, which was published in 1944. The Court’s employing such data raises the question of precisely which factors should be taken into consideration when attempting to deter- mine whether or not persons have received the “equal protection of the laws” guaranteed by the Fourteenth Amendment to the Constitution.

Proponents of “judicial activism” argued that because the executive and legislative branches were apparently unwilling to address this issue, it was the duty of the judiciary to ensure that all persons, in this instance black Americans, receive their constitutional rights. Opponents of the de- cision contended that nine appointed judges, as opposed to elected offi- cials, should not have the power to institute such fundamental social change. Which view do you hold?

C. Implementation (Brown II)

Brown discussed the broad issue of public school segregation and de- clared de jure segregation to be unconstitutional. However, the decision did not provide a remedy for those whom it affected. As the Court stated:

Because these are class actions, because of the wide applicability of this deci- sion, and because of the great variety of local conditions, the formulation of decrees in these cases presents problems of considerable complexity. (p. 495)

Therefore, the Court addressed this question in a separate opinion in Brown II.

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BROWN v. BOARD OF EDUCATION OF TOPEKA

Supreme Court of the United States, 1955 349 U.S. 294

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court. These cases were decided on May 17, 1954. The opinions of that date,

declaring the fundamental principle that racial discrimination in public edu- cation is unconstitutional, are incorporated herein by reference. All provisions of federal, state, or local law requiring or permitting such discrimination must yield to this principle. There remains for consideration the manner in which relief is to be accorded.

Because these cases arose under different local conditions and their disposition will involve a variety of local problems, we requested further ar- gument on the question of relief. * * *

These presentations were informative and helpful to the Court in its con- sideration of the complexities arising from the transition to a system of public education freed of racial discrimination. The presentations also demonstrated that substantial steps to eliminate racial discrimination in public schools have already been taken, not only in some of the communities in which these cases arose, but in some of the states appearing as amici curiae, and in other states as well. Substantial progress has been made in the District of Columbia and in the communities in Kansas and Delaware involved in this litigation. The defendants in the cases coming to us from South Carolina and Virginia are awaiting the decision of this Court concerning relief.

Full implementation of these constitutional principles may require so- lution of varied local school problems. School authorities have the primary responsibility for elucidating, assessing, and solving these problems; courts will have to consider whether the action of school authorities constitutes good faith implementation of the governing constitutional principles. Be- cause of their proximity to local conditions and the possible need for further hearings, the courts which originally heard these cases can best perform this judicial appraisal. Accordingly, we believe it appropriate to remand the cases to those courts.

In fashioning and effectuating the decrees, the courts will be guided by equitable principles. Traditionally, equity has been characterized by a prac- tical flexibility in shaping its remedies and by a facility for adjusting and rec- onciling public and private needs. These cases call for the exercise of these traditional attributes of equity power. At stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondis- criminatory basis. To effectuate this interest may call for elimination of a va- riety of obstacles in making the transition to school systems operated in accordance with the constitutional principles set forth in our May 1 7, 1954, decision. Courts of equity may properly take into account the public interest in the elimination of such obstacles in a systematic and effective manner. But

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it should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them.

While giving weight to these public and private considerations, the courts will require that the defendants make a prompt and reasonable start toward full compliance with our May 17, 1954, ruling. Once such a start has been made, the courts may find that additional time is necessary to carry out the ruling in an effective manner. The burden rests upon the defendants to establish that such time is necessary in the public interest and is consistent with good faith compliance at the earliest practicable date. To that end, the courts may consider problems related to administration, arising from the physical condition of the school plant, the school transportation system, per- sonnel, revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a nonracial basis, and revision of local laws and regulations which may be necessary in solving the foregoing problems. They will also consider the ad- equacy of any plans the defendants may propose to meet these problems and to effectuate a transition to a racially nondiscriminatory school system. During this period of transition, the courts will retain jurisdiction of these cases.

The judgments below, except that in the Delaware case, are accord- ingly reversed and the cases are remanded to the District Courts to take such proceedings and enter such orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially nondis- criminatory basis with all deliberate speed the parties to these cases. The judgment in the Delaware caseordering the immediate admission of plain- tiffs to schools previously attended only by white childrenis affirmed on the basis of the principles stated in our May 17, 1954, opinion, but the case is remanded to the Supreme Court of Delaware for such further proceedings as that Court may deem necessary in light of this opinion.

It is so ordered.

Notes and Questions

Did Brown II temper the original decision by employing such an impre- cise standard as “all deliberate speed”? In this regard, Justice Frankfurter suggested: “Nothing could be worse from my point of view than for this court to make an abstract declaration that segregation is bad and then to have it evaded by tricks.” Would the establishment of a specific time frame, for instance, have been enforceable?

In addition to not setting a time frame, why do you believe the Court did not offer specific desegregation guidelines to the lower courts that were effecting desegregation? Do Brown I and Brown II provide sufficient instructions and guidance from the Supreme Court to the lower federal

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courts for the latter to have effected desegregation adequately? Because the Court did not provide a test for compliance with the desegregation rul- ing, what criteria would one use to determine if a school system was in compliance with Brown I?

II. EARLY DESEGREGATION IN THE SOUTH

Under the Brown II formula, local school authorities were given the pri- mary responsibilities for fashioning desegregation plans. Lower-level fed- eral courts were to determine whether such plans constituted good-faith implementation of the principles enunciated in Brown I. However, the Court’s abstract doctrine, lack of clear guidance, and imprecise time frame, especially in those areas of the South where there was considerable ani- mosity to the decision, all contributed to attempts at delay if not outright noncompliance with Brown I.

Consequently, lower federal courts in the South were inundated with school desegregation cases. Some of these cases represented resistance in complying with Brown I on the part of local school systems, yet in other instances local authorities were thwarted in their attempt to desegregate by state-level action. An example of this latter problem, which gained na- tionwide notoriety at the time, is the events in Little Rock, Arkansas. Here, the local school system had made good-faith efforts to desegregate; how- ever, the governor ordered the national guard to prevent black students from entering the school to which they had been assigned. Under the cir- cumstances, the local authorities sought a postponement of the desegrega- tion plan by citing preservation of the public peace. In addressing this issue, the Supreme Court, in Cooper v. Aaron, 358 U.S. 1 (1958), declared that although the Court was sympathetic to the authorities’ good-faith ef- forts that had been hindered by state action, desegregation of the schools could not be postponed.

In Virginia, that state’s compulsory-education laws were repealed, and school attendance was made a matter of local option. Prince Edward County closed its schools, and private schools for whites-only were oper- ated in their place with state and county assistance. The Supreme Court rejected such a course in Griffin v. County School Board of Prince Edward County, 377 U.S. 218 (1964), by instructing the local district court to require the authorities to levy taxes, thereby raising funds to reopen and operate a nondiscriminatory public school system such as those in other Virginia counties.

A so-called freedom-of-choice plan was another method school sys- tems employed to comply with the necessity to desegregate. Under such a plan, parents had the choice of determining which school their children would attend, with the result that there was often little or no actual deseg- regation within a school system. This issue was addressed in Green v.

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County School Board of New Kent County, 391 U.S. 430 (1968) by the United States Supreme Court. In not ruling freedom-of-choice out as a desegrega- tion tool, the court stated:

Although the general experience under “Freedom of Choice” to date has been such as to indicate its ineffectiveness as a tool of desegregation, there may well be instances in which it can serve as an effective device. Where it offers real promise of aiding a desegregation program to effectuate conver- sion of a state-imposed dual system to a unitary, nonracial system there might be no objection to allowing such a device to prove itself in operation. On the other hand, if there are reasonable available other ways, such for illustration as zoning, promising speedier and effective conversion to a uni- tary, nonracial school system, “freedom of choice” must be held unaccept- able. (p. 440-441)

In a per curiam opinion one year after Green, the Court declared that with respect to continued operation of racially segregated schools, the standard of “all deliberate speed” was no longer constitutionally permis- sible and that school districts must immediately terminate dual school systems based on race or color. See Alexander v. Holmes County Board of Education, 396 U.S. 19 (1969).

In its next major desegregation decision, the Court in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971), defined the scope of the duty to eliminate the dual school system. The decision repre- sented another example of the Supreme Court’s continued effort to render decisions that unequivocally reflected its desire to eliminate the dual school system. The unanimous decision ruled that the dismantling of the dual school system could be accomplished by: assigning teachers to achieve a particular degree of faculty desegregation; ensuring that future school construction and abandonment would not perpetuate or reestablish a dual system; scrutinizing one-race schools to ensure that the racial com- position did not result from present or past discriminatory action; altering attendance zones and employing pairing and grouping of noncontiguous zones to counteract past segregation; and although not requiring it, em- ploying bus transportation as a constitutionally permissible method of dismantling the dual system. Would the path to eliminating de jure segre- gation have been smoother if Brown I had contained such guidelines?

III. DESEGREGATION IN THE NON-SOUTH

Continued and successful desegregation efforts in the Southern states clearly revealed the lack of similar efforts in many non-Southern states where public school racial segregation existed. The legitimate question was often raised, of why one section of the country was required to deseg- regate its schools, yet obviously segregated school systems continued to operate in the northern and western portions of the United States. From a

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legal standpoint, a partial answer to this question was the Supreme Court’s reliance on the distinction between de jure and de facto segregation.

As has been noted, the presence of constitutional and/or statutory provisions and local policies mandating segregated schools in the South- ern states made it possible to address this form of state-sanctioned de jure segregation. Segregated school systems existed outside the South, and al- though such segregation was not always based on officially stated state or local policy, in some areas it had been. Several non-Southern states had statutes authorizing separate but equal public schools, and although even- tually repealed, such statutes remained on the books in New York until 1938, in Wyoming until 1954, and in Indiana until 1959. The presence of such statutes established persistent patterns of segregated schools that were not always easily changed.

Segregation outside the South existed for other reasons. In some in- stances, long-standing “customs” were present at the local level, which also contributed to racial attitudes and resultant segregated schools. Per- haps the most significant force, however, contributing to segregated schools outside the South resulted from housing patterns, which in some areas found black Americans living in neighborhoods and attending schools populated solely by blacks. Such de facto segregation was often based on housing patterns that allegedly were not the result of direct state action. Because the Supreme Court had not considered de facto segregation a violation of the Brown I edict, non-Southern public schools that were segregated on that basis were not immediately challenged in the courts. However, in time, segregative practices of non-Southern school systems were examined by the judiciary. One of the contentions made against seg- regated non-Southern school systems was that they had engaged in a form of de jure segregation, perhaps not as blatant as in the South, but neverthe- less resulting in impermissible racial discrimination.

Although United States Supreme Court decisions dealing with South- ern school segregation had a certain consistency and unanimity in attempt- ing to eradicate de jure segregation, the same may not be said for the Court’s decisions regarding non-Southern school segregation. These differences may be seen by examining the often split Court decisions dealing with such issues as intentional segregation and interdistrict integration.

A. Intentional Segregative Action

Desegregation litigation in the two decades after Brown I focused primarily on dismantling dual-school systems, for the most part, in the rural South. During the mid-1970s, however, school desegregation entered its “second generation,” and the locus of school desegregation efforts shifted outside the South and to the nation’s large urban centers. In decisions involving Dayton and Columbus, Ohio, the United States Supreme Court revealed a contin-

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ued reliance on the de jure/de facto distinction. The Court maintained that if racially segregated dual school systems were operated at the time of Brown I in 1954, boards of education had an “affirmative duty” not to engage in ac- tions that would have impeded the desegregation process. See for instance, Columbus Board of Education v. Penick, 443 U.S. 449 (1979).

In a decision involving Denver, Colorado, the Court held that

a finding of intentionally segregative school board actions in a meaningful portion of a school system, as in this case, creates a presumption that other segregated schooling within the system is not adventitious. It establishes, in other words, a prima facie case of unlawful segregative design on the part of school authorities, and shifts to those authorities the burden of proving that other segregated schools within the system are not also the result of intention- ally segregative actions. Keyes v. School District No. 1, 413 U.S. 189, 208 (1973).

Keyes was the first case of a school system without a history of state- mandated racial assignment before the Supreme Court.

B. Interdistrict Integration

As a result of increasing white flight from urban areas to the suburbs, it be- came increasingly difficult to keep urban schools desegregated because there simply were not enough white students. As a result, many urban school districts became virtually all black and/or Hispanic. In response to such a situation in Detroit, a federal district court ordered a metropolitan integration remedy that, in effect, would have required the consolidation with the Detroit school system of 53 independent school districts sur- rounding the city that had historically been administered as separate units into a vast new super-school district. At the time, many parents who had moved from Detroit to the often more affluent suburbs, with school sys- tems that they considered to be considerably better than inner-city schools, faced the prospect of their children being bused long distances to per- ceived inferior and often dangerous schools. Many of these parents vowed to fight this court order. When the issue came before the United States Supreme Court in Milliken v. Bradley, 418 U.S. 717 (1974) (Milliken I), a five- to-four decision, the Court declared

The record before us, voluminous as it is, contains evidence of de jure segre- gated conditions only in the Detroit schools; indeed, that was the theory on which the litigation was initially based and on which the District Court took evidence. * * * With no showing of significant violations by the 53 outlying school districts and no evidence of any Interdistrict violation or effect, the court went beyond the original theory of the case as framed by the pleading and mandated a metropolitan area remedy. To approve the remedy ordered by the court would impose on the outlying districts, not shown to have com- mitted any constitutional violation, a wholly impermissible remedy based on a standard not hinted at in Brown I and Brown II or any holding of this Court. (p. 745)

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On remand, the district court approved a desegregation plan that in- cluded educational components in the areas of reading, in-service teacher training, testing, and counseling. Costs were to be borne by both the De- troit School Board and the state. The Supreme Court upheld the lower court’s action and stated that such a remedy was reasonable in the light of past acts of de jure segregation. See Milliken v. Bradley, 433 U.S. 267 (1977) (Milliken II).

Many observers consider Milliken I as marking an end to the United States Supreme Court’s unwavering support of desegregation efforts. Sub- sequent to this decision, the Court has been viewed decreasingly as a friendly and receptive forum for achieving school desegregation.

The plight of an urban school system similar to the one described in Milliken was addressed by Connecticut’s supreme court in Sheff V. O’Neill, 678 A.2d 1267 (Conn. 1996). In that decision, the court found that there was an extreme concentration of poor children in Hartford’s schools, that Hart- ford students scored last on the state’s standardized tests, and that al- though statewide there were 26 percent minority students, Hartford schools had 95 percent minority students; the court held the state’s school districting and attendance statutes unconstitutional. The court found that Hartford students suffered from unconstitutional segregation and that dis- parities in racial and ethnic composition of the city’s schools in compari- son with surrounding school districts violated their constitutional right for equal educational opportunity. The court noted that the state had ample notice of ongoing trends toward racial and ethnic isolation in the public schools, and whether or not the legislature created or intended to create the conditions that led to racial and ethnic isolation did not relieve state of- ficials of their responsibility to provide effective remedies. The court an- nounced that the legislature was required to take affirmative responsibility to remedy segregation in the public schools regardless of whether the seg- regation occurred de jure or de facto.

In Sheff v. O’Neill, the Connecticut Supreme Court describes in detail the state’s speedy and thorough attempt to remedy the conditions de- scribed in the earlier Sheff decision.

SHEFF V. O’NEILL Supreme Court of Connecticut, 1999

733 A.2d 925

AURIGEMMA, J. On July 9, 1996, the Connecticut Supreme Court issued its decision in

this case, Sheff v. O’Neill, 238 Conn. 1, 678 A.2d 1267 (1996), in which it held that students in the Hartford public schools were racially, ethnically and economically isolated and that, as a result, Hartford public school students

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had not been provided a substantially equal educational opportunity under the state constitution, * * *

The court clearly recognized that the state had not intentionally segre- gated racial and ethnic minorities in the Hartford public school system. But it also recognized that the state had created local school districts, which it identified as the most important factor contributing to the concentration of racial and ethnic minorities in Hartford. * * *

Although the court noted that “according to the findings of the trial court, poverty, and not race or ethnicity, is the principal causal factor in lower educational achievement of Hartford students”; its holding implicitly recognized a strong causal relationship between racial and ethnic isolation and lower educational achievement.

* * *

The court did not order judicial intervention to remedy the racial, ethnic and economic isolation existing in the Hartford public schools. Instead, the court directed the trail court to issue a declaratory judgment and to retain ju- risdiction in order to give the legislature the opportunity to act. Specifically, the court directed “the legislature and the executive branch to put the search for appropriate remedial measures at the top of their respective agendas.” * * *

The state’s response to the Supreme Court’s decision was swift. On July 25, 1996, Governor John Rowland issued Executive Order No. 10, creating the education improvement panel (the panel), which was charged to “explore, identify and report on a broad range of options for reducing racial isolation in our state’s public schools, improving teaching and learning, enhancing a sense of community and encouraging parental involvement.” * * *

* *

Within five months of receiving the final report of the panel, the Con- necticut legislature had passed Public Acts 1997, No. 97-290, entitled “An Act Enhancing Educational Choices and Opportunities.” This legislation was aimed at reducing racial, ethnic and economic isolation, as well as improv- ing the quality of education throughout the statewith an emphasis on im- proving urban education.

The first section of * * * the statute which defines the “educational in- terests of the state,” to include the reduction of “racial, ethnic and economic isolation,” to impose a duty on each school district to “provide educational opportunities for its students to interact with students and teachers from other racial, ethnic and economic backgrounds. .. .” * * *

Section 2 of Public Act 97-290 provided that school boards could re- duce racial, ethnic and economic isolation by using programs or methods such as: “(1) lnterdistrict magnet school programs; (2) charter schools; (3) in- terdistrict after-school, Saturday and summer programs and sister-school projects; (4) intradistrict and interdistrict public school choice programs; (5) interdistrict school building projects; (6) interdistrict program collaboratives for students and staff; (7) minority staff recruitment; (8) distance learning

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through the use of technology; and (9) any other experience that increases awareness of the diversity of individuals and cultures.”

Interdistrict cooperative programs are school sponsored programs in which students from different school districts participate together in a diverse array of educational experiences. These programs, funded largely by the state, bring urban and suburban students together in the context of quality educational experiences. * * *

In order to receive state funding, interdistrict programs must promote di- versity as well as academic improvement. The state department of education operates a competitive process in which local school districts or Regional Ed- ucational Service Centers submit written proposals for such programs.* * *

* * *

Interdistrict magnet schools are created by two or more districts com- bining their ideas, skills and resources to create a new school centered around a unique or unusual theme, specifically designed to foster both excel- lence in academics and the reduction of racial, ethnic or economic isolation. Interdistrict magnet schools existed prior to the Supreme Court’s decision. Since, by definition, a magnet school is made up of students from different districts, however, both the state and the plaintiffs have recognized the mag- net school as an excellent method of reducing racial, ethnic and economic isolation.

Overall, state spending on magnet schools will be $17.5 million dol- lars for fiscal year 1998-99, representing an increase in excess of $7 million over the spending level for fiscal year 1997-98. * * *

* * *

If a magnet school is housed in a new building, the state provides 100 percent funding for the construction of the building. In order to receive the state construction money, the districts must commit to the new school for at least twenty years. * * *

The state department of education has a division which includes em- ployees who meet regularly with those planning new interdistrict magnet schools. They provide guidance and assistance in the development process, including supplying a “nuts and bolts” set of guidelines for the process. The founders of a proposed magnet school must submit a detailed “operations plan” which is carefully scrutinized. * * *

The structure for the operational funding of interdistrict magnet schools is designed to encourage racial and ethnic diversity. Magnet schools are re- warded through financial incentives for accomplishing the greatest diversity in the racial and ethnic makeup of their student bodies. * * * If the districts participating in the magnet school send no more than 30 percent of the stu- dents to the school, then the magnet school receives 90 percent of the foun- dation level for each pupil from each such district.As the percentage from the sending district rises above the 30 percent threshold, the operational re- imbursement decreases correspondingly. This funding formula provides a strong financial incentive to the founders of magnet schools to seek to have

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three or more districts involved in the magnet school, with each contributing less than 30 percent of the students. Since the school must show it will re- duce racial and/or ethnic isolation, this funding formula ensures participa- tion of both urban and suburban districts in appropriate proportions while avoiding the pitfalls and possible legal challenges of having raced based quotas. As with the interdistrict cooperative grants, by July, 2000, the law will prohibit more than 80 percent of the students in a magnet school from coming from any one district.

The state has provided a further financial incentive for local districts to participate in magnet schools. The sending districts are permitted to count the students they are sending to the magnet school in their student counts for education cost sharing purposes. For example, if West Hartford sent seven children to the Montessori magnet school in Hartford in 1998, it would re- ceive the same amount in education cost sharing monies from the state as it would if the students remained in West Hartford schools. Obviously, under this formula, the sending district could secure substantial state funds in ex- cess of those normally received for education. Transportation funding is also available for students who do not live in the district in which the school is lo- cated at the level of $1200 per student.

* * *

Like magnet schools, charter schools are conceived and implemented by local educators and parents. Charter schools arise from an entrepreneur- ial approach to providing education and use a unique, autonomous gover- nance structure. They can be created quickly, but if they fail to meet their educational mission, they can also be dismantled quickly through the state’s revocation or nonrenewal of their charters. Typically, they are small in size, with smaller class sizes, and the stakeholders and founder of the school take on full accountability and responsibility for the school. * * * Charter schools generally center around a particular theme and adopt innovative approaches to education. * * *

The establishment of a charter school is a competitive process. Prospective founders of such a school must respond to a state request for proposals, which requires spelling out in detail the parameters of the pro- posed school. Legislation concerning charter schools predated Public Act 97-290. Public Act 97-290, however, amended the law governing the estab- lishment and operation of charter schools to require the consideration of the reduction of racial, ethnic and economic isolation as a factor in approving new state or local charter schools or in renewing the charters of existing schools. * * *

* * *

In addition to changing the substantive requirements of charter school approval to reduce racial and ethnic isolation, the state has increased charter school funding significantly. Six million dollars has been allocated for 1997-98 and nine million for 1998-99, with the concomitant increase in the number of authorized seats.

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Section 2 of Public Act 97-290 also listed minority staff recruitment as one method whereby schools could attempt to alleviate racial, ethnic and economic isolation. There is no dispute that increasing the diversity of school staff and adMinistrators, including minority representation in teacher preparation programs, can play a role in the reduction of racial and ethnic isolation. * * * each local or regional board of education must now develop and implement 6 written plan for minority staff recruitment, along with re- porting requirements. In addition, legislation in 1998 added additional funds to the Connecticut state universities and the University of Connecticut for scholarships for future minority educators. * * *

* * * Under the new Choice Program, beginning first in the Hartford, New

Haven and Bridgeport areas, and then later throughout the state, districts must report to their respective Regional Educational Service Centers seats available for students from other districts to allow interdistrict attendance. Project Concern, which operated in the Hartford area until this school year, has been folded into this program. Three million dollars has been allocated for the Choice Program from the 1998-99 school year alone, as compared to just $900,000 for Project Concern in the year before the Supreme Court’s de- cision in this case. * * *

. Under the Choice Program, all students are free to apply, and un- like Project Concern, special education students and students with limited English proficiency are not turned away. The Latino participation rate in the Choice Program has already exceeded the “best” years of Project Concern.

If a Choice Program student needs special education, the receiving dis- trict must provide the services and if the cost of the services exceeds the $2000 per student the district receives from the state, the sending district picks up that extra cost. The student is also the responsibility of the receiving district for all disciplinary purposes.

* * *

The state is providing several incentives to encourage local districts to offer seats in the Choice Program. Any school district that builds a school fa- cility that includes extra room for the interdistrict transfer of students will re- ceive funds from the state in an amount that is 10 percent higher than the district’s normal reimbursement rate. * * *

. . . The concept of the lighthouse school came about as a result of a number of legislators describing the need to enable educators to improve the quality of a school in a district to the degree that it would attract students from across the district, and, eventually, from other school districts. A light- house school can be the predecessor of an interdistrict magnet school.

The executive and legislative branches of this state both acted very ex- peditiously to comply with the Supreme Court’s order. Governor Rowland is- sued Executive Order No. 10, which created the education improvement

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panel, just sixteen days after the Supreme Court’s decision issued. In the fol- lowing six month period, Governor Rowland and the legislative leadership appointed twenty-one citizens to the panel. Those citizens devoted many days in discussion, deliberations and information gathering and issued the final report of the panel on January 22, 1997. Within five months after it re- ceived that report, the Connecticut legislature passed Public Act 97-290. Notwithstanding the speed with which the legislature acted to pass that leg- islation, the legislation was not cursory, but rather, was a comprehensive, carefully drafted, and well funded plan.

* * * In order to determine the efficacy as well as the timeliness of the state’s

response to the Supreme Court’s decision, it is necessary to consider the al- ternative remedies available to the state in its attempts to reduce racial, eth- nic and economic isolation in Hartford schools. The remedies fall into two basic categories: voluntary and mandatory.

The measures mandated by Public Act 97-290 and the other legislation referred to above are voluntary. * * *

* * *

The second type of desegregation remedy is mandatory. * * * The term “mandatory reassignment” is, essentially, a synonym for “forced busing.”

Christine Rossell, Ph.D., an expert witness called by the defendants, presented convincing testimony that mandatory reassignment would not have the effect sought by the plaintiffs, and would in fact, be counterpro- ductive. Unlike Orfield, whose testimony was not based on any statistical re- search, Rossell has conducted extensive empirical studies of the effects of various types of desegregation plans. Stating that she previously had been a proponent of mandatory reassignment, she testified that her views changed when her empirical studies began to indicate that mandatory reassignment of white students to minority schools did, in fact, produce significant white enrollment loss or “white flight” from those schools.

Rossell testified that mandatory reassignment plans are only mandatory for the poorest people in a school district: “Everybody else has a choice. Poor people have to go where they’re reassigned by some court or govern- ment agency who says you must go there. The rest of us can put our kids in private schools. We can move to another school district and we do. So even though these plans were implemented with the best of intentions and you have to understand that I supported them in the early years. Even though they were implemented with the best of intentions, the problem is they’re mandatory for only the poorest people in the school district.”

Rossell testified that the state’s approach is to implement a state-wide remedy that is based on the premise that voluntary integration is more likely to produce a lasting integration and will have more positive social effects and that this will be enhanced by their equal emphasis on improving educa- tional quality for all children. Her research shows that a voluntary approach

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to school desegregation is the most effective approach and it will produce the most lasting integration. In other words, according to Rossell, in the area of school desegregation, slow and steady wins the race.

Rossell predicted that if white suburban students were manditorily assigned to Hartford, Hartford public schools would experience a white en- rollment loss of approximately 45 to 50 percent.

* * *

The rapid rate of desegregation that the plaintiffs seek can only be ac- complished through a mandatory reassignment plan. Based on the evidence presented at the hearing, this court finds that voluntary plans are generally superior to mandatory ones because they promote integration of more last- ing duration with a minimum of opposition and disruption. * * *

Voluntary integration plans make particular sense in situations where, as here, the past segregation was de facto and not de jure. * * *

* * *

The plaintiffs have sought court intervention before the state has had an opportunity to take even a “second step” in the remedial process. The state has acted expeditiously and in good faith to respond to the decision of the Supreme Court in this case. It has devised a comprehensive, interrelated, well funded set of programs and legislation designed to improve education for all children, with a special emphasis on urban children, while promoting diverse educational environments. The legislative and executive branches should have a realistic opportunity to implement their remedial programs be- fore further court intervention. This will not only satisfy the Supreme Court’s desire to be sensitive to the “constitutional authority of coordinate branches of government”; but will also allow any educational reform plan to gain grassroots popular support which is crucial to the success of any plan. The best way to achieve popular support is not to impose a judicially mandated remedial plan, but to encourage Connecticut’s populace as a whole, both di- rectly and through their elected representatives, to solve the problems facing the state’s schools.

For the reasons set forth above, this court finds that the state has com- plied with the decision of the Supreme Court.

IV. CURRENT DESEGREGATION ISSUES

A. Release from Court Order

Many school systems across the United States were placed under federal court supervision in order to remedy past discrimination. In fact, by the mid-1990s there were approximately four hundred formerly segregated local school systems under some form of federal court jurisdiction. The issue of when such supervision should end, in addition to being exten-

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sively litigated over the years, has increasingly become highly charged emotionally and politically. Consequently, two United States Supreme Court decisions in the early 1990s provided educators with useful guid- ance. The four-to-three decision in Board of Education of Oklahoma City Public Schools v. Dowell, 498 U.S. 237 (1991), addresses an injunction’s ter- mination. It reveals the Court’s views regarding the use of the term “uni- tary,” the importance of local control, and that court supervision was intended to be a temporary measure. Freeman v. Pitts, 503 U.S. 467 (1992), an eight-to-zero decision, held that federal district courts have the discre- tion to withdraw their supervision over formerly segregated school sys- tems incrementally and are not responsible for segregation based on demographic changes in student population. Freeman required the follow- ing test to determine whether a school system had attained unitary status:

[W]hether there has been full and satisfactory compliance with the decree in those aspects of the system where supervision is to be withdrawn; whether retention of judicial control is necessary or practicable to achieve compliance with the decree in other facets of the school system; and whether the school district has demonstrated, to the public and to the parents and students of the once disfavored race, its good-faith commitment to the whole of the court’s decree and to those provisions of the law and the Constitution that were the predicate for judicial intervention in the first instance. (p. 491)

Kansas City has had a long history of school desegregation litigation beginning in 1985. At issue, in what was to become extensive litigation, was an extremely controversial plan that has been considered to be the most ambitious desegregation program in the country. The program con- sisted of a capital improvements plan to rectify the decay in the schools’ physical facilities, numerous quality education programs, and a far-reaching magnet school plan. The goals of the remedial programs were to compen- sate the former victims of segregation by improving the education given them; to enhance the programs so as to reverse the white-flight pattern, winning back white students from private and suburban schools and thus ending the racial isolation of the former victims; and to use the magnet schools as a way of bringing about voluntary redistribution of students within the Kansas City schools. A federal appellate court originally held that the state of Missouri had to provide funding for the Kansas City de- segregation program in Jenkins v. Missouri, 807 F.2d 657 (8th Cir. 1986) (Jenkins I), cert. denied, 484 U.S. 816 (1987), and in Missouri v. Jenkins, 495 U.S. 33 (1990), the Court held that the school system could be ordered to levy taxes in excess of statutory limitations to pay for desegregation reme- dies. In Missouri v. Jenkins, 515 U.S. 70 (1995) (Jenkins III), the Court chal- lenged the notion that the state should indefinitely be required to fund remedial “quality education” programs until national norms were met. In instructing the lower court, the Supreme Court articulated a standard for unitary status that required a showing of “compliance in good faith with

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the desegregation decree since it was entered” and that the “vestiges of past discrimination have been eliminated to the extent possible.” The Court reminded the lower court that on remand, an important end pur- pose, in addition to remedying violations, was the restoration of control of the school system to state and local authorities.

After Jenkins III, the state of Missouri and the Kansas City School Board entered into an agreement under which the state would pay the school district $320 million over three years and be released from any further obligation in the desegregation litigation in 1999. This agreement was upheld in Jenkins v. Missouri, 959 F. Supp. 1151 (Mo. 1997) (Jenkins VIII), aff’d, 122 F.3d 588 (8th Cir. 1997) (Jenkins XIV). The Jenkins XIV deci- sion also declared that the school district still had not remedied the “achievement gap vestige” and had not remedied four of the Green factors: student assignment, faculty and staff assignments, transportation, and facilities.

A lengthy decision in Brown v. Board of Education of Topeka, 892 F. 2d 851 (10th Cir. 1989) (Brown III), a progeny of the landmark school desegre- gation case, had pronounced the Topeka schools not to be a racially uni- tary system because the school district had exercised a form of benign neglect by insufficiently attending to desegregation efforts. However, in 1992, the United States Supreme Court vacated and remanded this deci- sion for further consideration in the light of Dowell and Freeman. On reflec- tion, the federal appellate court reinstated its original opinion in full and entered an additional opinion. The court argued that the facts underlying Brown III were far different from those before the Supreme Court in Dowell and Freeman because the Topeka school board had not fulfilled its affirma- tive duty in the areas of student and faculty/staff assignments. See Brown v. Board of Education of Topeka, 978 F.2d 585 (10th Cir. 1992)(Brown IV), denied sub nom. Unified School District No. 501 v. Smith, 509 U.S. 903 (1993). Finally, in Brown v. Unified School District No. 501, 56 F.Supp.2d 1212 (Kan. 1999), the court declared:

After careful consideration, the court has no reservation in finding that: de- fendant has complied in good faith with the mandates of the court over a reasonable period of time; the vestiges of past discrimination in the school district have been eliminated to the extent practicable; and defendant has demonstrated a good faith commitment to the law and the Constitution which presages no future need for judicial intervention. (p. 1214)

Cleveland schools were released from further remedial obligations in Reed v. Rhodes, 1 F. Supp2d 705 (Ohio 1998). In its decision, the court de- clared that socioeconomic factors were the primary cause of disparities in achievement on reading tests between blacks and other students. The court also declared that it was “not convinced the voluminous remedial orders issued in this case benefitted the students . . . to the degree that all Parties and the Court had hoped.”

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B. Race-Related Placement

Many school systems, which may or may not have been under court order, attempt to have their community’s diversity reflected in classes, schools, and/or enrichment programs. In their attempt to accomplish such diver- sity, school systems have employed admissions schemes to ensure that members of minority groups are properly represented. These schemes have included magnet schools, preferences, set-asides, underrepresenta- tion racial balancing, racial quota, controlled choice, and weighted lottery. In recent years, these schemes have been legally challenged by white stu- dents who are denied access to a neighborhood school or an enrichment program, although they have higher scores than minority students who have been accepted.

In many of the cases, courts use the strict scrutiny standard in their constitutional analysis. Under this standard, a disputed racial policy must further a compelling government interest and be narrowly tailored to serve that interest. Courts have had great diffichlty in defining a concept such as diversity and exactly what constitutes a compelling state interest; therefore, courts often assume, without deciding, that diversity may be a compelling state interest. Once that threshold is crossed, decisions are based on whether a disputed admissions policy is sufficiently narrowly tailored to pass constitutional muster. If racial balancing is a factor in an admissions policy, courts find the policy unconstitutional. These cases are quite fasci- nating. For many years, school desegregation cases were concerned with ensuring that blacks were not discriminated against, in these cases, whites are alleging discrimination. To date, the Supreme Court has not resolved the question of whether diversity is a compelling state interest.

1. Magnet Schools Magnet schools have an accelerated, enriched, or specialized cur-

riculum. Acceptance is often extremely competitive and is determined by meeting established criteria. They are only feasible in relatively larger school systems, and they were not originally designed to effect desegrega- tion efforts. When used as a desegregation scheme, however, their empha- sis has been to entice white suburban students to remain in the school system or be willing to attend magnet schools located in the inner city. Controversy and attendant legal problems have arisen when white stu- dents with higher scores are denied access and students, because of their race or ethnicity, with lower scores are accepted.

A policy under which a white first grader was denied entry into a magnet school because of “impact on diversity”his neighborhood school was already losing whiteswas not upheld. In its decision, the court in Eisenberg v. Montgomery County Public Schools, 197 F.3d 123 (4th Cir. 1999), denied 529 U.S. 1019 (2000), contended that had he been African

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American, Asian American, or Hispanic he would have been able to attend the magnet school. The court held that the school system was engaging in unconstitutional racial balancing, which is not a narrowly tailored remedy; therefore, race could not be considered in granting or denying transfer to the magnet school. Although race-based classifications have been toler- ated to correct past constitutional violations, the court explained, this did not apply here. The school system had never been under court order to de- segregate and had voluntarily dismantled its formerly segregated system after Brown.

A race-based admission policy used by the Boston Latin School, a prestigious public school, was challenged in Wessmann v. Gittens, 160 F.3d 790 (1st Cir.1998). An original admissions policy required that at least 35 percent of an entering class be composed of African American and His- panic students. Although a 1987 court decision had declared that the quota was no longer necessary because unitariness had been achieved in student assignment, the 35 percent quota continued to be implemented until 1996. Under a subsequent admissions plan, a standardized test was given and applicants had to score in the top 50 percent of the overall qualified appli- cant pool. Half of the available slots were given to those applicants who ranked highest, and the other half were given to the remaining pool of qualified applicants in rank order based on the overall proportion of blacks, whites, Hispanic, Asian, and Native American of all the qualified applicants. This suit came about when white applicants were denied ad- mission who had a higher composite score than the minority students who were accepted. In its decision, the court stated “any program which in- duces schools to grant preferences based on race and ethnicity is constitu- tionally suspect,” and examined the policy using the strict scrutiny standard. In its decision, the court held that the race conscious admission policy failed the strict scrutiny test and was therefore invalid under the Equal Protection Clause. In its analysis, the court acknowledged that there was no clear legal definition regarding what exactly constituted a legiti- mate government interest when a classification is based on race. The court agreed that the schools had achieved unitary status years ago and that no “causal connection” between past discriminatory conduct and present ef- fects were shown.

In San Francisco, after years of contentious litigation, the San Fran- cisco schools, the National Association for the Advancement of Colored People, and Chinese American students (the parties) put their differences aside and submitted a stipulated settlement for court approval. The parties thought it best to work out an agreement among themselves rather than continue litigation. A suit by Chinese American students had been con- templated that sought to end the use of racial quotas such as the 40 percent ceiling that had been set for any ethnic group at such prestigious institu- tions as Lowell High School. In this instance, Chinese American students

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were being discriminated against because of their overrepresentation. The settlement was approved in San Francisco NAACP v. San Francisco Unified School District, 59 ESupp.2d 1021 (Cal. 1999). In addressing student as- signment, the court stated:

In fact, the settlement expressly acknowledges that, in assigning students to the schools of the SFUSD, “state and federal law provide that district officials may consider many factors, including the desire to promote residential geo- graphic, economic, racial and ethnic diversity in all SFUSD schools.” The settlement merely precludes the SFUSD from using race or ethnicity as the primary or predominant consideration in determining student admis- sions. . . .” (p. 1034)

The terms of the settlement provided that it will terminate no later than December 31, 2002, subject to court approval.

A school system may continue to use a policy of considering race, however, in assigning students to magnet schools when a school system is still under court order. Although the Charlotte-Mecklenburg school system had achieved integration in its faculty and staff, extracurricular activities, and student discipline practices, the court held, in Belk v. Char- lotte-Mecklenburg Board of Education, 233 F.3d 232 (4th Cir. 2000), that seg- regation continued to exist in student assignments, school locations, transportation policies, and student achievement levels. Therefore, the court concluded, employing a magnet school program that considered race in student assignment was not unconstitutional. The race-sensitive method of student selection that was employed, the court reasoned, “was undertaken both to remedy the effects of past desegregation and to com- ply with governing court orders,” and therefore, “did not and could not violate the Constitution.”

2. Weighted Lottery Tuttle v. Arlington County School Board, 195 F.3d 698 (4th Cir. 1999)

held that using a weighted lottery, under which each applicant’s lottery number was weighted, so that applicants from underrepresented groups had a better chance of being selected, was unconstitutional. The school system’s goals for using this scheme were (1) to prepare and educate stu- dents to live in a diverse, global society by reflecting the diversity of the community and (2) to help the school board serve the diverse groups of students in the district, including those from backgrounds that suggest they may come to school with educational needs that are different from or greater than others. Diversity was defined by using three equally weighted factors: (1) whether the applicant was from a low-income or spe- cial family background, (2) whether English was the applicant’s first or second language, and (3) the racial or ethnic groups to which the applicant belonged. Because the case dealt with racial classification, the court ap- plied the strict scrutiny standard under which the admissions policy must

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serve a compelling governmental interest and be narrowly tailored to achieve that interest. In its holding the court declared, “Until the Supreme Court provides decisive guidance, we will assume, without so holding, that diversity may be a compelling governmental interest and proceed to examine whether the Policy is narrowly tailored to achieve diversity.” In holding the admissions policy unconstitutional because it was not nar- rowly tailored, the court determined that the policy had no logical ending period, granted special treatment to certain minority groups, and unduly burdened people outside of specific minority groups. The court declared, “We find it ironic that a Policy that seeks to teach young children to view people as individuals rather than members of certain racial and ethnic groups classified those same children as members of certain racial and eth- nic groups.”

V. EPILOGUE

As public education enters the twenty-first century, a cross-current of forces appears to be operating on the desegregation landscape. The federal judiciary can no longer be relied on to assist in furthering historic desegre- gation measures. Large-scale, costly desegregation efforts in inner-city school systems have not brought about desired results. T’here is little pub- lic support for traditional public school desegregation efforts, especially busing, which is now often viewed as a major reason for bringing about white flight. Observers argue that large urban school systems, after years of desegregation efforts, appear to be undergoing resegregation rather than further desegregation. And, these days, black students have been re- placed by white students who claim discrimination because they are ex- cluded from prestigious public schools that have quotas to ensure diversity.

The Brown I decision set off an avalanche of civil-rights decisions and legislation that gave black Americans equality before the law, not only in education but also in such areas as public accommodation, housing, and voting. However, almost fifty years after the decision, the educational racial scene is not all that its proponents had hoped it would be. Such court-ordered efforts as numerical quotas and forced busing of students, in too many instances, have not had the desired effect, and, unfortunately, in many instances, increased racial tension.

Although the South went from being completely segregated to being the least segregated area in the United States, this accomplishment is di- minishing. According to a 1997 report for the Harvard Project on School Desegregation, Southern states, which have had an enviable record in de- segregating their school systems, are resegregating and following a na- tional trend of blacks attending poor and inferior schools while their white counterparts attend affluent and superior schools. Inner-city schools in-

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creasingly have become totally “minority” because of the flight of whites and middle-class blacks. The report further states that schools in the Mid- west and Northeast remain the most segregated between black and white students, and in the West segregation between white and Hispanic stu- dents is growing.

Efforts such as magnet schools, which have been widely touted, have had spotty success in desegregation efforts. The ambitious court-ordered program of heavily funded magnet schools in Kansas City did not achieve its original goal of drawing significant numbers of white students from the suburbs. After the full program had been in place for two years, a 1994 Harvard study revealed relatively small academic and racial gains. Ele- mentary students made “modest” gains in academic achievement, yet half the students entering high school did not graduate. The percent of minor- ity students in the district climbed slightly from 73.5 percent to 74.8 per- cent between 1986 and 1993. In 2000, Kansas City schools were characterized by the director of the Council of the Great City Schools as being “an island of incompetence in a sea of indifference.” As a result of the district’s dismal scholastic record, the state of Missouri has revoked its accreditation, and the district has been placed in danger of being broken up or taken over by the state if there is no improvement. Total expenses for the two-decade court-ordered desegregation program, which after 1999 no longer received state funding, reached nearly two billion dollars.

Several mid- and late-1990s legal events may have an important im- pact on the future of public school desegregation. In one instance, a federal appellate court, in Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996), cert. denied, 518 U.S. 1033 (1996), held that a state university law school could no longer consider race or ethnicity when admitting students. Although deal- ing specifically with law school admission, the decision has the potential to affect other higher education affirmative action admissions policies. The Hopwood decision has direct applicability only in Texas, Louisiana, and Mississippi, but it has spawned similar suits in other states. In another de- segregation setback, California voters passed Proposition 209 in 1996, a measure providing that the “state shall not discriminate against, or grant preferential treatment to any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” Proposition 209 effectively ended affirmative action in California’s public sector, and the Supreme Court’s refusal to review a lower court’s upholding of the measure provides a pos- itive signal to other states contemplating a similar measure. See Coalition for Economic Equity v. Wilson, 122 F.3d 692 (9th Cir. 1997), cert. denied, 522 U.S. 963 (1997). In 1998, Washington State voted for a similar measure to eliminate state-sponsored affirmative action.

The fostering of the notion of “diversity” is increasingly being at- tacked. Proponents who foster the diversity notion argue that an institution

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should attempt to reflect the racial and/ or ethnic makeup of the cornmu- nity. Opponents argue that by emphasizing diversity over merit too often results in academic programs being watered down. Race-based admission programs designed to further diversity, when challenged by white stu- dents, are consistently struck down by the courts.

A half-century after Brown I, two views on opposite ends of the desegregation continuum may be illuminating in describing the desegre- gation landscape as the twenty-first century begins. Dinesh D’Souza, au- thor of The End of Racism, argues that attempting to effect desegregation through judicial involvement and antidiscriminatory legislation “has failed.” He further contends that the major problem facing blacks today is no longer racism but “destructive and pathological cultural patterns of be- havior” within the subculture of the black underclass. He contends that while discrimination still exists, it is “rational discrimination”; namely, whites rationally choose to steer clear of that pathological subculture. Gary Orfield, director of the Harvard Project on School Desegregation, dis- agrees with D’Souza’s assessment. He cites the profound transformation of Southern society due to the full implementation of desegregation ef- forts. Orfield believes that the lack of judicial support in the non-South in implementing desegregation remedies has essentially stopped the deseg- regation process nationwide. He thinks that desegregation gains made since Brown will increasingly be lost.

Given this climate surrounding desegregation efforts, especially in the inner cities, do you agree that there is a possibility of public school de- segregation efforts returning full circle to “separate but equal” again?

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CHAPTER SIX*

Individuals with Disabilities and the Law

As the United States Congress recognized in its 1997 reauthorization of the Individuals with Disabilities Education Act (IDEA), disabilities are a nat- ural part of the human experience, and should in no way diminish the right of individuals to participate in or contribute to society. With appro- priate educational services, children with disabilities, like all other chil- dren, can be prepared to lead productive, independent, adult lives to the maximum extent possible. But prior to the passage of laws protecting chil- dren with disabilities, many of these children were excluded from public schools or were not receiving appropriate educational services. The pre- vailing educational philosophy held that children with disabilities that prevented them from conforming to ordinary cognitive, physical, or hy- giene standards did not belong in regular public schools. The burden of educating these children remained primarily with their families, who often lacked sufficient resources to provide appropriate educational ser- vices. Educational services that were available to these children were often provided in segregated facilities, preventing these children from interact- ing with their nondisabled peers. Congress found that before the enact- ment of the landmark Education for All Handicapped Children Act of 1975 (Public Law 94-142), a million children with disabilities were entirely excluded from public schools, and more than half of the children with dis- abilities in the United States were not receiving appropriate educational services.

Following the United States Supreme Court’s mandate to racially de- segregate schools in Brown v. Board of Education, advocates for individ- uals with disabilities championed desegregated education for children with disabilities. Based on legal theories rooted in Brown, dozens of cases

*This chapter was written by John Dayton, J.D., Ed.D., an associate professor in the Depart- ment of Educational Leadership, College of Education, the University of Georgia.

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were filed nationwide alleging that children with disabilities were being excluded from public schools and denied equal protection and due process rights. Two of these cases, Pennsylvania Association for Retarded Children (PARC) v. Pennsylvania, 343 F. Supp. 279 (E.D. Pa. 1972), and Mills v. Board of Education of the District of Columbia, 348 F. Supp. 866 (D.C. 1972) resulted in landmark decisions recognizing educational rights for children with disabilities. In PARC, a federal district court held that mentally re- tarded students ages six through twenty-one should be provided with ac- cess to a free public education, and that children with disabilities should be placed in regular classrooms when possible or in special classes when necessary. In Mills, another federal district court extended this doctrine to all school-age children with disabilities, holding that they must be pro- vided with a free and adequate public education.

Legislation protecting the rights of individuals with disabilities was also passed by the United States Congress. Some of the earliest federal leg- islation included the Elementary and Secondary Education Act of 1965, and Title VI, which was a 1966 amendment to that Act. In 1970, Title VI was repealed and replaced by the Education of the Handicapped Act. This Act created a Bureau of Education for the Handicapped and brought in- creased national attention to the concerns of students with disabilities. This early legislation did not provide for “mainstreaming” or a “free ap- propriate public education,” but it established the groundwork for future legislation concerning these issues. In 1973, Congress passed Section 504 of the Rehabilitation Act, prohibiting discrimination against handicapped persons in programs receiving federal funds. In 1975, Congress passed Public Law 94-142, the Education for All Handicapped