Midwest Education Law

A federal district court in ruled yesterday that a Missouri school district must stop blocking web content geared toward the lesbian, gay, bisexual and transgender (LGBT) communities through use of its network filtering software. In Parents, Families, and Friends of Lesbians and Gays Inc. v. Camdenton R-III School District, plaintiffs claimed that the school district "implemented internet filtering software that systematically blocks websites expressing a positive viewpoint toward LGBT individuals, in violation of PFLAG's freedom of expression under the First Amendment." The software permits users to block internet content by content categories, such  as pornography, advertising, and “sexuality.” The sexuality category automatically blocked sites offering LGBT-positive information, including those maintained by PFLAG and others, which plaintiffs alleged constituted unlawful viewpoint discrimination. The school district argued that the filtering software was necessary in order to comply with Children's Internet Protection Act's (“CIPA”) 47 U.S.C. § 254(h)(6)(B)(i), a federal statute requiring schools to protect children using school computers from viewing visual depictions that are obscene, child pornography, or harmful to minors.

 

The court was not persuaded, finding that the school district intentionally discriminatied against plaintiffs based on their viewpoint, largely because the district continued using what the court deemed a substandard content filter, URL Blacklist, depsite plaintiffs' objections and complaints from the ACLU. The court noted that URL Blacklist automatically categorized any LGBT friendly site under the block category of "sexuality," while allowing access to anti-LGBT sites which it categorized as "religious." The court found that the content blocker amounted to a "blunt instrument" that "systematically targets the highest-quality informational sites that express a positive viewpoint toward LGBT individuals," while actually failing to block up to 30% of CIPI prohibited sites. The court also concluded that other filtering systems are available that "are much more effective" at filtering out pornography "and do so without burdening websites that express a positive viewpoint toward LGBT individuals." In addition, the court rejected the district's argument that allowing students to request that sites be unblocked did not remedy the issue, because such requests were "not truly anonymous," and a cumbersome procedure could deter students seeking access to the gay-positive sites. "Students may be deterred from accessing websites expressing a positive view toward LGBT individuals either by the inconvenience of having to wait 24 hours for access or by the stigma of knowing that viewpoint has been singled out as less worthy by the school district and the community," the judge said.

The U.S. Court of Appeals for the Eighth Circuit today affirmed the trial court's grant of summary judgment in favor a school district and against tenth grade student who was suspended for sending "instant messages" to various friends in which the plaintiff talked about bringing a gun to school and committing acts of violence.  The case, D.J.M. v.  Hannibal Public School Dist., can be found here. 

The messages in question were sent by DJM through his home computer to various friends (who were also using their home computers), including messages to a female student, CM. Although CM initially believed DJM to be joking, she became concerned at the increasingly threatening nature of DJM's messages and alerted a school administrator, who in turn contacted police. DJM was taken into juvenile custody and later suspended for the balance of the school year.  DJM and his parents sued the School District under Section 1983, alleging that the School District had violated the First Amendment because the instant messages in question were not "school speech."

Rejecting this claim, the court held that true threats are not protected by the First Amendment and here the school district was given enough information that it reasonably feared DJM had access to a handgun and was thinking about shooting specific classmates.  In light of the district's obligation to protect its students and reasonable concerns created by other school shooting incidents, the district did not violate DJM's First Amendment rights by notifying the police about the messages and subsequently suspending him after he was placed in juvenile detention.  The action was also appropriate under the school's authority to prevent a "substantial disruption" of school activities.  The court also found that the district court did not abuse its discretion in remanding DJM's state law claim for administrative relief to Missouri state court after it dismissed his Section 1983 claims.

In part due to the rapid rise in popularity of social networking cites like Facebook, new questions have emerged about the extent of a school district's authority to regulate student speech that occurs off-campus. Up to now,  the prevailing view has been that schools may discipline off campus speech which bears sufficient relation to the school environment, even if that speech does not cause “substantial disruption”under Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). However, this may no longer be the case following two recent decisions by the U.S. Court of Appeals for the Third Circuit.

Last week, in two closely followed cases , the Third Circuit ruled that school districts may regulate off-campus student speech only where the speech poses a “poses a significant threat of substantial disruption.” Affirming its earlier ruling in one case and reversing in part the other, the court found that the schools in each case exceeded their authority and violated the First Amendment when they disciplined students for postings made on social networking sites.

InSnyder v. Blue Mountain School District,the district court originally upheld a school’s 10-day suspension of a14-year-old for her creation of a “profanity-laced” mock profile of her middle school principal on the social networking site MySpace.  Reaching the opposite result, the lower court inLayshock v. Hermitage School District found that another school district’s discipline of a 17-year-old student for a similar posting on MySpace violated the student’s First Amendment rights. The MySpace postings in both cases were created after school hours, off campus and using non-school computers. On appeal, both cases where affirmed,prompting the Third Circuit to hear the case a second time en banc to resolve the panel split.  

Using Tinker as a guidepost, the majority opinion in Blue Mountain found that school districts may discipline students for off-campus behavior only if it presents a significant likelihood of causing substantial disruption. The court found there was no such likelihood because the website parody was viewable only to a select number of the student’s friends and that, although “indisputably vulgar,” the student’s speech was nonetheless protected by the First Amendment. Similarly, in Layshock, the court found that the school district failed to show that the offensive internet posting created any on-campus disruption, concluding that “[i]t would be an unseemly and dangerous precedent to allow the state, in the guise of school authorities, to reach into a child’s home and control his/her actions there to the same extent” that it can when the child “participates in school sponsored activities.”

Yesterday, in a closely divided 5-4 decision, the United States Supreme Court ruled for the first time that police must take into account a child's age in deciding whether to give a “Miranda warning” advising them of their constitutional rights, including the right to remain silent.  You can find the Court's opinion in J.D.B. v. North Carolina here.Speaking for the majority, Justice Sotomayor stressed that children, particularly in the school setting, “will often feel bound to submit to police questioning when an adult in the same circumstances” would not. The Court noted that a student required by law to attend school, and who is subject to disciplinary action for disobedience, might well believe that he or she must answer all police questions.

The dissenting opinion complained that the Court is abandoning the objective,bright-line rule of Miranda, which is undeniably true.  Yet,because the Court gave virtually no guidance as to at what age Miranda warnings should be given or precisely how an investigating officer should factor in age when making this decision, the practical effect may be that, out of an abundance of caution, law enforcement will give warnings to anyone who doesn’t appear close to eighteen years of age.

Exactly one year ago today, we blogged about the federal district court's decision in Victory Through Jesus Sports Ministry Foundation v. Lee's Summit School District.  Victory challenged a policy that permitted youth and community groups closely affiliated with the school district the unlimited opportunity to have their informational flyers sent home with students, but which allowed other outside groups such as Victory only three distributions per year. Victory contended the flyer policy created an unlimited public forum and that providing it less access than other groups violated the First Amendment. Following a bench trial, the district court rejected this argument, finding that the school district's "backpack flyer" program did not create a public forum under the First Amendment and that the restrictions were a reasonable response to an otherwise unmanageable number of distribution requests.

Victory appealed and, on May 20, 2011, the U.S. Court of Appeals for the Eighth Circuit affirmed the judgment below. (The opinion can be found here and, for those interested, an audio recording of the oral argument is  available as well.) The three judge panel agreed with the district court's conclusion that the flyer policy did not create a public forum open to all. This may seem an obvious point. However, while the use of school premises by religious groups is fairly well defined under the Equal Access Act, the law regarding the application of the First Amendment to speech that takes place in a non-physical forum is opaque at best. Some courts have indeed found that a school district can create a public forum by agreeing to distribute flyers for outside groups, thus risking constitutional liability if they exclude anyone for almost any reason.

It is also worth noting that, in addition to rejecting Victory's public forum argument, the Court found that the school district’s restrictions were reasonable because the policy provided for an alternative avenue of communication by posting the flyer information on the school district’s website. Finally, the panel rejected Victory's facial challenge to the policy based on the argument that policy gives school district officials “unbridled discretion” to grant or deny access, leading to suppression of free speech. 

Today the U.S. Court of Appeals for Eighth Circuit issued its decision in C.B. v. Special School District No. 1, affirming the district court's finding that the school district failed to provide FAPE, but reversing the lower court's ruling that the school district was not required to reimburse the parents for the cost of private tuition.  The district court previously held that the parents' enrollment of C.B. in Groves Academy, a private school serving predominately learning disabled students, was not an appropriate placement, because it did not present the "least restrictive" learning environment. The district court reasoned that the IDEA expresses a preference for children with disabilities to be educated in the “[l]east restrictive environment,” and provides that “[t]o the maximum extent appropriate,” children with disabilities should be educated with children who are not disabled."  Because ninety percent of the students at Groves had IEPs, the district court observed that it offered education in an environment that was largely restricted to students with disabilities. The district court found that the special education program available in the public schools “offered educational services similar to Groves but in a less restricted environment,” that C.B. benefitted from the social opportunities available in the general educational environment, and that the evidence did not establish that C.B. required “a totally segregated, private school environment” to make educational progress. The court accordingly found that Groves was not an “appropriate” placement under the IDEA.

Rejecting this reasoning, the Eighth Circuit stated that "[a] less restrictive environment is the ideal, but C.B.’s move to Groves after years of frustration in the public schools is a far cry from “the apparently widespread practice of relegating handicapped children to private institutions or warehousing them in special classes” that concerned Congress. We thus join the Third and Sixth Circuits in concluding that a private placement need not satisfy a least-restrictive environment requirement to be “proper” under the Act." (Citations omitted).  As a result, the Court of Appeals held that the parents were entitled to reimbursement of tuition expenses for C.B.

In June, we reported on a groundbreaking study on the possible genetic causes of autism.  Another recent scientific paper, published in the Archives of General Psychiatry and reported in this month's issue of Scientifc American, suggests further evidence of a genetic marker for autism might be found through studying hereditary "oculomotor deficits" (eye movement disorders) that appear with statistically significant frequency in close relatives to those with autism.  These deficits are subtle, often asymptomatic and not clinically remarkable, but as the study reports, seem to provide some further indication of a genetic component to autism.

Recent changes in the law require school districts in the state of Missouri to develop a policy on the use of seclusion and restraint, as well as other responses to emergency or crisis situations, in which student and/or educator safety is at risk.  Section 160.263, Mo. Rev. Stat., mandates that all school districts must adopt a written, comprehensive policy, covering the spectrum of behavioral interventions ranging from "time-outs" to physical restraint, no later than July 1, 2011.  Last week, the Missouri Department of Elementary and Secondary Education published its Model Policy on Seclusion and Restraint.  The Model Policy should provide a useful starting point, but given that this is an area rife for litigation and the fact Congress is pondering its own restraint/seclusion legislation (House Bill 4247, the "Keeping All Students Safe Act," which is awaiting passage in the Senate), there is as yet no one-size-fits-all solution.

The National Alliance of Charter Schools is holding its 2010 National Charter Schools Conference in Chicago this week, which runs from June 28-July 1.  Keynote speakers include Reed Hastings, Founder and CEO of Netflix, Arne Duncan, U.S. Secretary of Education, and Bill Gates.  You can find the full text of Mr. Gates' Keynote Speech here.

Today, the Supreme Court handed down its last decisions of this term, including the opinion in Christian Legal Society v. Martinez, in which it held that a public law school, the Hastings College of Law, can legally deny recognition to a Christian student group (the "CLS") that prohibited gay and lesbian students from joining.  In this case, "recognition" meant certain benefits, such as use of school funds, facilities, and channels of communication, as well as the right to use the school's name and logo.  The CLS required members to sign a statement of faith and regards ''unrepentant participation in or advocacy of a sexually immoral lifestyle'' as being inconsistent with that faith.  The law school maintained that no recognized campus groups may exclude people due to religious belief or sexual orientation under the school's anti-discrimination policies.  

In a 5-4 decision, a sharply divided Court denied CLS's claim that the law school's refusal to grant it official recognition was a violation of the group's First and Fourteenth Amendment rights to free speech, expressive association and free exercise of religion.  ''In requiring CLS -- in common with all other student organizations -- to choose between welcoming all students and forgoing the benefits of official recognition, we hold, Hastings did not transgress constitutional limitations,'' said Justice Ruth Bader Ginsburg, writing for the five member majority.  She further noted that the ''CLS, it bears emphasis, seeks not parity with other organizations, but a preferential exemption from Hastings' policy.'' 

Amid the confusing flood of competing, sometimes controversial (or even dubious) theories on the causes of autism and autism spectrum disorders, comes a recent study published earlier this month by scientists working as part of the Autism Genome Project ("AGP").  The study, which has received surprisingly little attention outside the scientific and medical communities, appears in the June 9, 2010 issue of the journal Nature.  Although there has been speculation regarding whether, or to what extent, genetics might play a role in autism, the AGP study actually found rare, specific genetic variants that appear to be associated with autism spectrum disorders.  Many experts believe this could lead to objective diagnostic tools and even potential avenues of treatment.  The term "groundbreaking" is often too loosely applied, but here we think it is apt.  For anyone interested in this subject, this is a development we will continue to follow closely.  

School policies restricting advertising by non-school related groups have come under fire by various religious organizations, who argue that such restrictions result in viewpoint discrimination under the First Amendment. A federal court decision handed down last week from Missouri sheds light on these issues and suggests how to place reasonable, constitutional limits on scarce school information resources.

The case focused on the Lee's Summit School District's polices on advertising to students by outside groups. Faced with growing requests to distribute informational flyers, the District limited those groups permitted frequent distribution to select organizations, such as the PTA, the Chamber of Commerce and specific community youth sports associations, with whom it had a close affiliation and history of support. Plaintiff conducted a religious based soccer camp and alleged that the denial of the same opportunity to was due to its viewpoint and unconstitutional.

The court disagreed, finding that the District's policy was reasonably intended to limit the mass of papers sent home with students, and that the District's refusal to distribute the plaintiff's flyers was not based on the plaintiff's religious views. The Court observed that to hold otherwise would be to force the District into an "all or nothing" choice of either distributing flyers for any group who might request it or none at all. The ruling should provide some guidance for school districts facing similar issues. However, it remains subject to appeal and, as with most things First Amendment, there is likely to be more litigation in other jurisdictions, so caution is advised.