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SPRING 2008 NEWSLETTER
SCHOOL LAW UPDATE
by Joshua Skinner and John Husted
UNITED STATES SUPREME COURT
- Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, __ U.S. __, 127
S. Ct. 2738, 168 L. Ed. 2d 508 (June 28, 2007)
Students were denied equal protection under the U.S. Constitution, since school
districts, which did not operate legally segregated schools, improperly
classified students by race and relied upon the classification in making school
assignments in a non-individualized, mechanical way as a decisive factor.
The school districts in these cases voluntarily adopted student assignment plans
that rely upon race to determine which public schools certain children may
attend. The school districts classify children as white or nonwhite, black
or “other,” and use this classification when assigning and transferring students
so that the racial balance at the school falls within a predetermined range.
Incoming ninth graders could choose among the district’s high schools. If
too many students list the same schools, the district employs tie-breakers:
first, if the student already has siblings there, the second depends on the
racial composition, and the third is geographical proximity. Parents of
students denied assignment to particular schools under these plans because of
race contended that allocating children to different public schools based on
race violated the Fourteenth Amendment guarantee of equal protection. The
courts of appeals upheld the plans, and the Supreme Court reversed.
After determining that the parents’ group had standing, the Supreme Court
reviewed the action under strict scrutiny, and found the action was not narrowly
tailored to achieve a compelling government interest. Defendants’ plans
merely sought racial balance, an illegitimate objective. The facts in this
case were distinguished from Grutter v. Bollinger, 539 U.S. 306 (2003), where
race was only part of a highly individualized, holistic review of general
diversity for law school admissions.
- Morse v. Frederick, __ U.S. __, 127 S. Ct. 2618, 168 L. Ed. 2d 290 (June 25,
2007)
School officials did not violate the First Amendment by suspending a student who
refused to take down a pro-drug banner at a school-sponsored event. School
officials were entitled to take steps to safeguard those entrusted to their care
from speech that could reasonably be regarded as encouraging illegal drug use.
At a school-sanctioned and school-supervised event, a high school principal saw
some of her students unfurl a banner bearing the phrase “BONG HiTS 4 JESUS”.
The principal directed the students to take down the banner. This was
consistent with school policy. One student, Frederick, refused. The
principal confiscated the banner and suspended Frederick for 10 days. The
Ninth Circuit held that the principal’s actions violated the First Amendment,
finding that the school did not demonstrate that Frederick’s speech gave rise to
a risk of substantial disruption.
Though students do not shed their constitutional rights at the schoolhouse gate,
constitutional rights of students in public school are not automatically
coextensive with the rights of adults in other settings. Furthermore,
deterring drug use by schoolchildren is an important, perhaps compelling
interest, and Frederick’s speech was reasonably viewed as promoting illegal drug
use. The Supreme Court reversed the decision of the Ninth Circuit and held
that schools may take steps to safeguard those entrusted to their care from
speech that encourages illegal drug use.
- Tenn. Secondary Sch. Ath. Ass’n v. Brentwood Acad., __ U.S. __, 127 S. Ct.
2489, 168 L. Ed. 2d 166 (June 21, 2007)
Enforcing a rule prohibiting high school coaches from recruiting middle school
athletes does not violate the First Amendment.
The Tennessee Secondary School Athletic Association (TSSAA) regulates
interscholastic sports among its member public and private schools, which
includes the private school, Brentwood Academy. The TSSAA prohibits
schools from using undue influence to recruit students for their athletic
programs. Brentwood’s football coach violated the recruiting regulations.
TSSAA accordingly sanctioned Brentwood.
Though the First Amendment protects the right to publish truthful information
about the school and its athletics, and though it protects the school’s right to
persuade prospective students to enroll, Brentwood’s speech rights are not
absolute. It chose to join the TSSAA, a state actor with interests in the
well-being of student athletes and fair competition. The First Amendment does
not excuse a school from abiding by the same anti-recruiting rule that governed
the conduct of its sister schools as the athletic association’s rule discouraged
the sort of conduct that might lead to a variety of harms, any one of which
would detract from a high school sports league’s ability to operate efficiently
and effectively.
- Winkelman v. Parma City
Sch. Dist., __ U.S. __, 127 S. Ct. 1994, 167 L. Ed. 2d 904 (May 21, 2007)
Parents enjoy rights under the Individuals with Disabilities Education Act
(“IDEA”), and, as a result, they can prosecute IDEA claims on their own behalf
without the assistance of counsel.
The parents of Jacob Winkelman, an autistic student, challenged the school
district’s proposed Independent Education Plan (IEP) for Jacob that would have
put him in the public elementary school. They availed themselves of the
administrative review provided by the IDEA. They filed a complaint without
an attorney alleging, among other things, that the school district failed to
provide Jacob with a free appropriate public education. The court of
appeals dismissed their claim stating that, under the IDEA, they needed to
obtain counsel for their son. The Winkelman’s appealed.
The Supreme Court held that the IDEA gives parents an individual right to
administrative action. Since the parents bring the claim in their own
right, they are permitted to act without counsel and dismissal was improper.
FIFTH CIRCUIT
- Ponce v. Socorro Indep. Sch. Dist., 508 F.3d 765 (5th Cir. November 20, 2007)
Student speech that threatens a Columbine-style attack on a school is not
protected by the First Amendment because such speech poses a direct threat to
the physical safety of the school population.
The administrators at a public school learned that one of their students was
keeping a journal in which he recounted engaging in a wide variety of violent
neo-Nazi activities against other individuals and in which he indicated that he
would commit a Columbine-style attack on the school, probably at graduation.
The student was suspended and the administrators recommending placing him in
alternative education. The student’s parents transferred him to a private
school and brought suit on his behalf alleging a violation of his rights under
the First Amendment.
The district court held that the school district’s conduct violated the
student’s First Amendment rights under the standard enunciated in Tinker v. Des
Moines Indep. Sch. Dist., 393 U.S. 503 (1969). The Fifth Circuit reversed
the decision of the district court and held that the appropriate standard in
this case was enunciated by the Supreme Court in Morse v. Frederick, 127 S. Ct.
2618 (2007), not Tinker. Whereas the Tinker requirement that the district
prove a material and substantial disruption in order to regulate protected
speech remains the norm, speech advocating a harm that is demonstrably grave and
that derives that gravity from the “special danger” to the physical safety of
students arising from the school environment is unprotected by the First
Amendment.
- Alvin Indep. Sch. Dist. v. A.D., 503 F.3d 378 (5th Cir. October 4, 2007)
To qualify for special education services under the Individuals with
Disabilities Education Act (IDEA), a student must both (1) have a qualifying
disability and (2) “by reason thereof, need special education and related
services.” In evaluating whether a student meets the second requirement,
the school district does not look to whether the student’s qualifying disability
affects his educational performance, but whether, under the unique facts and
circumstances of the case, the student needs special education services by
reason of the qualifying disability.
A.D., a student in Alvin ISD, suffered from Attention Deficit Hyperactivity
Disorder (ADHD) and began having behavioral problems in seventh and eighth
grade. During that time, A.D. was experiencing various familial
circumstances of a stressful nature and began to abuse alcohol. A.D.’s
mother requested that Alvin ISD provide A.D. with special education services.
Throughout this time period, A.D.’s academic performance was average or above
average. Alvin ISD denied the request for special education services.
The district court granted Alvin ISD’s motion for summary judgment, holding that
A.D. did not qualify for special education services because it was not by reason
of his ADHD that he needed special education and related services. On
appeal, A.D. contended that the district court erred and should have looked to
whether or not his ADHD adversely affected his educational performance.
The Fifth Circuit rejected A.D.’s argument, noting that the IDEA provides a
“basic floor” of educational opportunities to disabled children and does not
require school districts to “maximize the potential of each handicapped child.”
Instead, the district court properly considered the unique facts and
circumstances of the case in finding that A.D. was not entitled to special
education services under the IDEA.
The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.
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Harper & Martinson P.C.. All rights reserved. You may reproduce materials
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