The Need for a Test to Help Courts Make Sense of Off-campus Student Speech

I have recently begun preparing for a paper I will co-author and present with Dr. Amy Dagley at Education Law Association's annual conference in San Diego where we examine trends in adjudicated free speech lawsuits involving off-campus communication resulting in on-campus discipline. This preparation included reading Benjamin L. Ellison’s opinion published in 2010 (85 Notre Dame L. Rev. 809). What struck me in Ellison’s piece was the following statement, “A test is needed to mark the boundaries of free speech protection from school discipline over speech that originates off campus.”

Ellison reviewed what other scholars have written on the subject of a test and then offered his own ideas. I would like to summarize the tests Ellison included in his opinion:

Tuneski advocated for an intent-focused test that would permit on-campus discipline if the student’s off-campus communication was directed toward the school, students at school, or school officials. The obvious challenge with this test is proving intent.

Adamovich argued that the standard for government employee speech should be applied to students’ off-campus communications. Specifically, Adamovich identified four points in determining if a student can be punished for off-campus communication: 1) intent, 2) “the number of listeners, 3) the nexus between the student speech and school operations; 4) the level of disruption” caused by the speech. Brenton and Servance also argued for nexus-based tests.

Pike differentiates between active and passive student communication. Active communications include email, text messaging, tweets, and phone calls. Passive communications are web pages, blogs, and social networking profiles. Ultimately, Pike argued that school officials should only be able to limit active forms of student off-campus communication.

Finally, Ellison offered a test that focused on pure intent and location. By pure intent, Ellison suggested that if school officials can prove that the student told others about the off-campus communication or showed others at school a website then intent has been established.  This definition of off-campus speech could be applied to all types of communication – electronic, print, etc.  With location, Ellison suggested that once school officials establish intent then the location transfers from off-campus to on-campus.

With that superficial summary of the different tests, I am interested in hearing what EdJurists bloggers and readers think on this topic. In effect, I am wanting to transition from one-way communication to a more interactive two-way discussion. I am also a bit of a dreamer and I think it would be commendable if this community of legal scholars were to develop its own test that appropriately differentiated between off-campus speech that is completely protected by the First Amendment and off-campus speech that should result in on-campus consequences. I am of the opinion that, ultimately, a test related to off-campus communication must adhere to the guidelines established in the student speech trilogy (Tinker, Fraser, and Hazelwood).

I look forward to reading what others think on this subject.

Sanity with Zero-Tolerance (Finally)

I hate zero-tolerance policies. Always have. They are just wholly unnecessary, legally silly, probably discriminatory, generally bad for kids and, on top of all that, don't even work. 

So, to my delight, finally zero-tolerance seems to have the worst of it in policy circles lately. Credit to Arne Duncan and the U.S. DOE for releasing new guidance last week that tries to put the brakes on mandatory suspensions and expulsions. I think the Secretary has intelligent things to say in this release video:   

The bottom line is that the law entrusts principals and other school leaders with the discretion to make appropriate decisions toward novel situations amongst kids. These disciplinary decisions can be incredibly difficult with intense lobbying on all sides. Many tears are shed and sleepless nights suffered over how to appropriately discipline kids. But, that is the job. It is a core function of a school leader and the manifestation of the trust provided to that position in our society. To attempt locally to shirk that responsibility through the use of hastily adopted zero-tolerance policies is cowardly. The policy position may appear tough, but it actually speaks to the weakness of the proposer. 

I am glad to see the light at the end of the dark, dark tunnel of zero-tolerance. 

SnapChat is Sending Images to the Government

Our kids really need to know that. Like now. Our younger teachers do as well. In your next legal training on anything related to social media, you should mention this. I teach a pre-service law course starting next week; I am definitely going to mention this in there. 

I'm not a user of snapchat myself, but I know that many of our students are heavy users somewhat on the premise that whatever they send will go away quickly. Well, no so much. 

Details here. H/T: Bethany Smith

Cone of Shame

This happened last year and I somehow missed it: teacher permits "cone of shame" on students -- which is essentially a dog collar with a cone attached when the students misbehaved. Brought to my attention again by @sjciske. 

 Apparently, she was just transferred and not fired. Being a science teacher saved her. 

By the way, I'm not sure what is happening in Pasco County, FL, but they certainly seem to make the education law news a lot. 

A Nice Video on Overcoming Bullying

I am a sucker for this kind of stuff. Passion. Art. Poetry. Combined into a beautiful message for kids that are facing challenges. There should be more of this. 

h/t Jayson Richardson

Texas: Legal to Force Students to Wear RFID Chip at School

A district court judge in San Antonio upheld the expulsion of a student at a magnet school for refusing to wear a RFID chip (radio frequency identification: the technology that allows for geographic tracking at all times, like the thing you can have implanted in your dog). Not surprisingly, the ACLU jumped into the case on the part of the student, arguing that this violated the students privacy and is an unacceptable step toward a surveillance society. 

The school argued that this is all harmless and that the chips were only used to locate students that are not in the classroom, but still in the school building (they said it cannot work outside the school building and would not be given to third parties). The district was convinced they were losing over a million dollars a year in state revenue because students were in hallways and not in classrooms. Further, as a magnet program, the student can return to their home school if she did not like the policy. 

A lively discussion already developed on twitter, but let's continue the conversation (with longer arguments) in the comments. I will put my thoughts in the comments also. 

So, pick a side. Are you okay with this policy and this ruling? 

H/T: This came from Jon Becker's twitter feed with the hashtag #SchoolLawWTF attached. Appropriate. 

The Right to Education in South Africa

I had the privilege of being able to travel to South Africa this summer to present a paper at a conference examining education under the South African Constitution, a constitution less than 20 years old at the moment.  To illustrate the "youth" of the constitution: while there, I had the opportunity to meet and dialogue with one of the "Framers," Justice Albie Sachs.  It was surreal to be able to do so after studying American constitutional law for a number of years. 

I will discuss a few features of the South African Constitution's approach to education in some upcoming posts, but I thought I would begin with the most basic difference between education as a constitutional matter in South Africa and education as a constitutional matter in the United States: education in South Africa is an explicit, individual constitutional right.  Section 29 of the South African Constitution's Bill of Rights declares that "Everyone has the right--to a basic education, including adult basic education; and to further education, which the state, through reasonable measures, must make progressively available and accessible."  The United States Constitution contains no language even hinting at such a right, and the American state constitutions--from which the voluminous case law on school finance and ostensible "education rights" emanates--are also devoid of such language (with the notable exception of the North Carolina Consitution). 

Yet, there are growing calls for the South African Constitutional Court to look to American school finance litigation in interpreting the education rights found in that country's constitution. My most recent article argues that the approach should be more nuanced, recognizing that (1) American school finance cases have never really enforced anything like an individual right to education, despite a good deal of rhetoric to the contrary; (2) the South African Constiution's "basic" education right is clearly an immediate, individual entitlement, and should be enforced as such, even through individually tailored remedies; and (3) the South African Constitution's "further" education right is much more legislative duty than individual right, and it therefore can be enforced similarly to the education clauses in American state constitutions. 

That said, my view is that American state supreme courts have been going about enforcing their own education clauses in precisely the wrong way, ignoring the fiduciary nature of the legislature's duty to provide for education.  Thus, I urge that the courts in both countries step back from their rights-based rhetoric and consider what it means to enforce a duty that does not correlate to the personal claim-right of any individual.  Check it out here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2142221 .

Just Don't Ban It (Again)

So, schools adopting social media policies is becoming very fashionable these days (ridiculously so, and lots of smart folks can tell you why, but whatever). New York City Schools is the latest to apparently be considering it. 

Here's the thing. I do not care all that much legally what you put in that policy, with one exception ... just don't ban anything. You cannot ban Facebook. You cannot ban Twitter. You cannot ban teachers from talking to kids outside of school. If the First Amendment says anything, it is that you can share your ideas without governmental interference when they have no legitimate reason to regulate. That a person is a teacher is not a legitimate reason to regulate all their speech, all the time. It isn't. Trust me. 

To show you, let's get conservative just because that is how our current Court leans. Let's say a school board wanted to ban a teacher from religious speech (participating in this prayer social website, for instance). Would that fly with the current court? No freaking way. None. Facebook is not different. Why? Well, look at this site - the Hawaii Catholic Youth and Adult Ministry Facebook Group. Can we ban teachers from talking to students on that site? No, we can't. They have both an expression and free exercise right to do so. Thus, we cannot ban Facebook. We also cannot ban teachers from talking to students on Facebook. Bans do not work in this space. There is just far, far too much constitutional history on the other side of that argument and way, way too many different scenarios that would be banned all in one fell swoop. 

Now, you can choose to block these things on your school Internet, that's fine. You can encourage responsibility. You can institute discipline measures for disruptions. You can, well ... be creative. But, banning teachers from using social media in anyway is a step to far, constitutionally speaking. 

The Case of High Heels and the First Amendment

Well, I have already written a few pages as a result of this story ... so wanted to pass it along (video is not embedding well, so click link to see the story). 

Thoughts? 

Just to kick it off ... I'm okay with the regulation in this case. I'll say more after people lambast me for that position. 

Whatever you think about this case, it is a wonderful teaching tool and I hope some of you use this scenario in your classes. 

H/T to @jonbecker for bringing it to my attention.

Stop Strip Searching. Stop it.

School administrators - stop strip searching. Stop. Don't do it again. 

Sch. Law Profs - stop telling your students they can strip search. I don't care what narrow legal exception exists, there is so little to be gained outside of an immediate threat (i.e. a gun). 

It is stupid and unnecessary and nearly always ends poorly (and with lawsuits). 

Here is the latest: 

P.S. - Isn't it a bit ironic that the person fired in this case for doing the search was named Redding? Poetic, a bit, isn't it. 

Washington's School Finance Decision

Last month, the Washington Supreme Court issued its decision in McCleary v. State, --- P.3d ----, 2012 WL 19676, Case No. 84362-7 (Wash. 2012), the culmination of three decades of litigation, legislation, and more litigation over the state’s school funding system.  The Court struck down the state financing system, but stepped back from ordering the state legislature to take any specific legislative action to fix the system.  The Court exercised such restraint for two reasons.  First, like other courts in similar situations, the Washington Court recognized the troubling separation of powers implications of a direct, injunctive remedial order against the legislature to enact legislation.  Second, the Court considered 2009 legislation that had been passed since the suit began and held that, if fully funded, the system laid out by this legislation would pass constitutional muster.  The Court retained jurisdiction over the case, apparently to see that the legislation in question would be fully funded in the coming years. 

I have said before in my scholarship that Washington’s Supreme Court is one of the more interesting in the country in the area of school finance because, rather than issuing under-theorized accounts of rights to education as other state courts have, Washington’s Court, in its initial school finance decision (Seattle School District No. 1 v. State, 90 Wash. 2d 476, 585 P.2d 71 (Wash. 1978)), carefully derived from the education duty provision in its state constitution a correlative individual right to an education held by each Washington resident child.  In McCleary, the Court reaffirmed this holding from Seattle and used it as the justification for stringent judicial review of the legislature’s past actions, particularly its actions in cutting expenditures on certain budgetary items and forcing these expenditures to be funded through less-reliable local sources.  A few general principles emerge from the decision:

First, the Court developed a way to review budgetary cuts for their rationality that is, I think, either new or newly explicit among school finance cases.  The Court explained that, where the legislature cuts part of the education budget, it may not justify such a cut based on lack of funds availability alone (clearly a garden-variety rational basis that would justify cuts to any other budget item).  Rather, the legislature must justify all cuts to the education budget with education-related reasons, in effect adopting some of Helen Hershkoff’s earlier proposed metrics for constitutional review of affirmative rights.  The upshot of this innovation is that something more than a rational basis is required.  The required standard seems to be more of a “rational direction” test—Is the cut or expenditure decision rationally directed at the constitutionally prescribed goal (“ample support” for education, in Washington’s case)? 

Second, the Court reversed the lower court’s order that the legislature commission a study of the true cost of providing an adequate education, a familiar, almost pro forma remedy that every school finance plaintiff group seeks these days.  In my view, this was a very sound reversal.  The legislature, in the preceding years, had commissioned several such studies, each at a cost of over 1 million dollars.  The problem was not the state’s failure to determine what a “basic education” costs, but the failure to fund it fully once determined. 

Third, the Court's decision revealed that evidence of inequality is far more important to judges in adequacy cases than evidence of the overall quality of the system, especially in the form of test scores and other outputs (echoing portions of recent work by James Ryan).  Although the Court defined the basic content of a sufficient education by referencing the state content standards, the chief problem the Court saw with the legislature's existing program was that localities were required (with varying levels of effort based on local property wealth) to fund large portions of the achievement of the stated standards.  That's an equity analysis, not an adequacy analysis. 

These are what I view to be the positive developments in the case, but there were also a couple of negative—or at least disappointing—trends that generally exist in the school finance cases that were adopted and continued in this case.  First, the Court engaged and adopted its prior holding that the education duty set forth in the state constitution is a duty that falls equally on all branches of state government.  Courts around the country have seized on non-specific language in their education articles to justify judicial review of legislative policy priority weighing by holding similarly.  Simply put, if the duty rests on all three branches, then no branch deserves any deference, especially not total deference.  But this makes absolutely no sense in practice.  A duty, to be meaningful, must be enforceable.  Given that principle, what if some group of residents is unsatisfied with the Court’s resolution of this matter?  Since the duty rests equally on the Court’s shoulders, may that group now sue the Court for violating the duty?  Will the Court be the ultimate judge in this case?  I think it is preferable for courts to justify judicial reveiw without confusing the governmental actor that bears the burden of an affirmative constitutional duty. 

Second, although the Washington Court did an admirable job in Seattle of using the scholarship of Wesley Newcomb Hohfeld to derive a defensible conception of an individual positive right to education from the affirmative duty set forth in the state constitution, it approached the McCreary case without any regard to individual harm whatsoever.  In short, individual rights were meaningless—other than rhetorically—in the decision process.  I continue to believe that recognizing individual rights, but failing to consider individual harms and individual remedies, does violence to the idea of rights in general. 

There’s lots more to say about this important decision, but these are my first impressions.  I welcome comments, corrections, addenda, etc. 

McCarthy on Student First Amendment Rights and Cyberbullying

My mentor and titan of the field of education law, Martha McCarthy, rarely makes video appearances. So, we have to treasure the few that we have. Recently, she was installed as the new Presidential Professor at Loyola Marymount University. As part of the introduction, she gave an hour or so lecture on student expression issues, particularly online expression and cyberbullying. It is a great watch for the content, but it is an even better watch to get a sense of her teaching ability. As you can see from the video, it was a fantastic learning experience to have studied under her. 

Hugging and Other Crimes Against Humanity

This story got a lot of play today where a middle school student was suspended for a mutual hug of his best friend, a female classmate. Here was the rationale: 

“We cannot make an opinion or judgment call on whether a hug is appropriate or not. It’s very difficult to police that on campus,” Christine Davis, the  public information officer for Brevard County Public Schools, told ABC News.

Davis said the school puts policies and procedures in place to help keep the students  focused on learning.

Really? If you can't make a call between an appropriate hug and an inappropriate hug you should be fired. It tells me that you don't know kids and that you don't know their lives. Is it harder to make all those judgment calls? Sure. But, that's what you get paid to do, so stop shirking your responsiblity through made-up policies (no law requires anything like this). 

Want to know why our school systems can't produce the passionate, dedicated, emotionally committed leaders of the next century ... it's because we feel we have to sanitize our schools and students away from such crimes against humanity as hugs between friends.  

When (it's probably not an if) these questionable school leaders lose their jobs ... "no hug for you." 

State Court Funding Symposium

I want to announce to our readers an upcoming event at the Universiy of Kentucky College of Law that has implications for education law.  The event, jointly sponsored by the Kentucky Law Journal, the American Bar Association, and the Center for State Courts, is a symposium on the funding of state courts, many of which are currently in what can best be described as a resource crisis.  Here is a link to the schedule of events on September 23-24, which include Keynote addresses by both Dean Erwin Chemerinsky of the UC-Irvine School of Law and current ABA President (and UK Law grad) Bill Robinson. 

Now, what does this have to do with education law?  Well, two major things.  First, as with almost all categories of law, the majority of education related disputes are resolved in state judicial systems.  A funding crisis in those systems will inevitably lead to a crisis in educational dispute resolution.  Second, as many of you know, to the extent that "education rights" exist in our system, these rights are primarily state constitutional rights.  Where state judicial systems are hampered, the development of these rights is also hampered.  The issue of state court funding is therefore a vital one for those interested in education policy and law. 

I encourage anyone with an interest in these issues of access to justice (and the ability to be in beautiful Lexington, KY this Friday and Saturday) to attend the symposium. 

Missouri: Enter the ACLU

Well, this was just a matter of time. The ACLU is suing the state of Missouri against their Facebook law. 

Actually, you have to give the ACLU some credit lately. They are also watching schools for limiting some speech by blocking certain websites in a discriminatory fashion. Just in Missouri this last week the ACLU got a consortium of districts to unblock some pro-LGBT sites that they had been blocking. 

You can think what you want of the ACLU and there has been occassions where I have disagreed with their positions, but for now the ACLU seems to be on the side of proper and healthy technology integration in schools. 

A (lack of) Nationwide Student Protest

Just wondering why it hasn't happened yet. It is sort of the rage all across the planet now, with some specifically about education policy, in case you didn't know, and it just seems like it is time here. Students are organizing stuff like flash mobs at universities all across the country (here is ours), so I am a little surprised there are not organized protests for well ... anything whatsoever. Clearly the technology makes organizing something like this so simple, it just seems like something would have triggered such a public display of outrage by now. 

Just an observation. Curious as to your thoughts on why ...

"Abbott XXI" and the State Constitutional End Game

The New Jersey Supreme Court has just issued what is, under my best count, its twenty-first opinion in the ongoing school finance litigation, Abbott v. Burke.  The total opinion (including the majority and separate opinions) is 215 pages, so an analysis will be forthcoming, but not today. 

Essentially, though, this is a remedial opinion reaffirming that the court meant what it said in its last remedial opinion about the levels of funding required in the target districts, meaning that the state legislature's recent deep cuts to education spending are violative of the state constitution.  The opinion ends with the court ordering the appropriation of an additional $500 million to the "Abbott districts" (the property-poor districts at the center of the suit in its current posture). 

I think this opinion is likely to hasten the constitutional confrontation that has been inevitable in New Jersey since the beginning of this 20-year saga.  The court here is nearing a constitutional "end game," where the elected legislators know that they will lose their jobs if they raise taxes to preserve school funding, but the court is basically trapped into demanding exactly that action based on its prior rulings.  If neither side blinks, then what?  Jailing individual legislators for contempt of court if they vote the wrong way? 

Our Heavenly Father ... Can We Hang Religious Banners in Schools?

A new one out of Rhode Island. I think the local politician is cute in this one. 

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With the ACLU in against them on this one ... I don't love their chances. 

New Title IX Guidance

The DOE has released new Title IX guidance. Here is the official DOE Page.

Just from a quick scan, the thing that stands out to me is the focus on the language "sexual violence" instead of "sexual harassment."

 Sexual harassment of students, which includes acts of sexual violence, is a form of sex discrimination prohibited by Title IX. In order to assist recipients, which include school districts, colleges, and universities (hereinafter “schools” or “recipients”) in meeting these obligations, this letter explains that the requirements of Title IX pertaining to sexual harassment also cover sexual  violence, and lays out the specific Title IX requirements applicable to sexual violence.  Sexual harassment of students, which includes acts of sexual violence, is a form of sex discrimination prohibited by Title IX. In order to assist recipients, which include school districts, colleges, anduniversities (hereinafter “schools” or “recipients”) in meeting these obligations, this letter1explains that the requirements of Title IX pertaining to sexual harassment also cover sexual violence, and lays out the specific Title IX requirements applicable to sexual violence.

I'm not sure the purpose of this, whether this was just meant to cover a small component of Title IX, or to try to redirect the broader discussion (hopefully just the former). Either way, I don't really like the move. Title IX is much broader than just what comes to mind when we hear the term "sexual violence." Additionally, I think more clarification is needed on the harassment part than on the violence part. I feel practitioners are pretty good at distinguishing and punishing violence, but not so good at distinguishing and punishing harassment. There is far too much sexual violence, don't get me wrong, so focusing on that is a worthwhile endeavor and much of the guidance seems aimed at prevention procedures. But, I hope this is not going to take the spotlight away from the harassment and bullying components of Title IX - which still need a lot of clarification. 

Thanks to Jason Block (who you will be hearing a lot more from over the next couple years) for the tip. 

You can see some of our comments on the last DOE guidance on bullying here - plus, why I love ELA.

Race to Nowhere

For those folks that live relatively close to Lexington, tonight the P20 Innovation Lab is hosting a free screening of the new movie Race to Nowhere. More details on the showing are here. You can view a trailer here. I'll be moderating a panel discussion after the movie. My friend Ellen Usher (a rising superstar in the learning motivation ranks) is organizing the screening and also participating in the panel. Joining the panel are Wayne Lewis, John Thelin, & Huajing Xiu Maske. 

I've viewed the movie already, but you'll have to come to the screening to get my (and my friends) thoughts. I'll update this post later with details. I'm looking forward to this one.