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 United States Supreme Court declined this week to review a pair of high-profile off-campus Internet student speech cases.  Both cases involved students who were disciplined at school for posting fake profiles on the Internet of their school principals.  The high court’s decision to decline review is a missed opportunity to clarify school districts’ ability to discipline students whose off-campus, online conduct may affect the school environment.

 

The two cases, which involved materially similar facts, drew national attention when the Third Circuit Court of Appeals issued decisions in the cases that reached opposite conclusions on the same day.  In J.S. v. Blue Mountain School District, a middle school student posted a fake MySpace profile of her principal that contained crude content and vulgar language, resulting in a 10-day suspension.  In Layshock v. Hermitage School District, a high school student was also suspended after creating a fake webpage mocking his principal.  

 

After reviewing the cases en banc—with all Third Circuit judges participating—the Court held that the discipline applied by the schools in both cases violated the students’ First Amendment right to free speech.

As readers know, Missouri's so-called "Facebook Law" has received national attention.  Although passed unanimously by the Missouri General Assembly, the core provisions subsequently generated much disagreement and a constitutional challenge.  The court challenge to SB54 also made national news and a legal ruling today will no doubt also recieve attention.  In short, the judge found unconstitutional the portion of SB54 precluding teachers from using non-work related internet sites that allow "exclusive access" to current and former students.  The ruling is preliminary and may be rendered moot by further legislative action.  Specifically, legislators had already pledged to clarify and correct the challenged provision and we will monitor developments.  Importantly, all other provisions of SB54 remain in effect and should be followed unless and until amended by the General Assembly. 

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.”

A Pennsylvania middle school's effort to ban "I Heart Boobies" bracelets failed, when a federal court there ruled that the ban violated two female students' free speech rights.  The court's decision explains the history behind the bracelets, and the legitimate public awareness campaign that motivated the marketing of the bracelets.  The court further concluded that the bracelets were not lewd speech, given the context of the bracelets' purpose.  Finally, the court discounted the school's contention that the bracelets had caused substantial disruption of the school, despite evidence that (as one might expect from middle school students) the bracelets had led to several off-color comments by other students.



 

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. 

A Kansas high school has attracted the attention of the American Civil Liberties Union after banning a controversial bracelet and suspending a student who violated the ban.  After getting complaints, Junction City High School’s principal recently told students not to wear the bracelets, which read “I (heart) boobies!”  A breast cancer awareness foundation produces the bracelets, as well as t-shirts with the same slogan.  While the charity has hoped to utilize the eye-catching slogan to encourage involvement by teenagers, the bracelets  have been banned at multiple schools across the country.  The Junction City student who refused to take off his bracelet was suspended for two days.

On Wednesday, the ACLU sent the high school a letter threatening legal action, alleging a violation of the student’s First Amendment rights.  The threat is probably not an empty one – the ACLU filed suit in Easton, Pennsylvania last month against a school district that suspended two students for wearing the same bracelets despite a ban.  The following link provides the full story: http://tinyurl.com/2ecz4n2

Recent research confirms what school administrators and teachers already know: student-on-student bullying is now more likely to happen online than in person.  A University of Minnesota child psychologist’s research indicates that while about 14 percent of adolescents report they have received face-to-face bullying, 48 percent say they have been subjected to bullying via virtual messaging.  Cyberbullying – which can occur on social networking websites, cell phones, e-mail, and other electronic media – presents new challenges for school administrators who wish to impose discipline for conduct that occurs on electronic media, often away from school property.  The legal landscape is not yet clearly defined in this area, where disciplined students often claim a First Amendment defense.

A federal court recently upheld the constitutionality of a school district's suspension of a fifth grader who wrote a violent message on an in-school assignment.  In Cuff v. Valley Central School District, the 10-year-old student's teacher assigned him to write a "wish" that would be publicly displayed during an open house for parents. The student wrote "blow up the school with all the teachers in it," prompting a suspension.  The student later told school officials that he was only joking.
 
The Southern District of New York concluded the First Amendment did not protect the student's speech because the school district reasonably determined the threat was likely to cause a substantial disruption.  The student had a lengthy disciplinary history of violent tendencies and similar past disturbing writings.  The student's capacity to carry out the threat, young age, and the fact that the threat was written in response to a school assignment were immaterial.

To read the court's opinion, go to http://www.spencerfane.com/_FileLibrary/FileImage/Cuff%20v.%20Valley%20Central%20School%20Dist..pdf

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.'' 

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.

A teacher at Francis Howell High School in St. Charles, Missouri is currently under investigation regarding her decision to show her students the Michael Moore movie “Sicko” and write about the persuasion techniques used in the movie for the class final assignment. Details of the story first emerged on a local St. Louis blogger website and later picked up by the St. Louis Post-Dispatch. The student, Celeste Finklebine, told the newspaper the purpose of the assignment was to analyze different forms of persuasion. She complained that the teacher, Debra Blessman, chose the movie without first obtaining administrative approval for the assignment. “Sicko,” created by Michael Moore, a well-known filmmaker, offers a critique of the present U. S. health care system. Miss Finklebine was ultimately allowed to complete the assignment with a review of Dr. Martin Luther King’s “Letter from a Birmingham Jail.” Miss Finklebine also alleges the teacher called her a “teabagger” earlier in the school year, a reference to her participation in local “Tea Party” political activities.

A district official confirmed that teachers are supposed to consult with an administrator before showing a movie in class and explain how it relates to the curriculum. The district also noted that the matter would be handled through the district’s teacher evaluation process but would not comment on whether Ms. Blessman was disciplined, as the matter is a personnel issue.

Districts should ensure they have a clear policy developed in accordance with district legal counsel regarding the use of outside materials such as movies in the classroom, particularly if it contains politically charged or other potentially controversial content. Student or parent complaints about the chosen materials should be handled on a case-by-case basis and in some cases, an alternative assignment may be appropriate.

There was a lot of media hoopla about last month's Supreme Court decision involving the display of crosses in the Mojave Desert.  Contrary to those reports though, the decision does not open the door to the wholesale erection of religious symbols on government property. 

The case turned on the fact that by the time it reached the Supreme Court, the federal government no longer owned the land where the crosses had been placed.  After a lower court had ordered the government to remove the crosses, Congress passed a special law requiring the government to swap that property, giving it to the VFW, which had originally erected the crosses in 1934 as a World War I monument.  In exchange, the federal government was given some nearby land donated by a private citizen. 

The Supreme Court ruled that since the property was no longer owned by the government, there was no way to conclude that the crosses were "government speech," nor an endorsement by the government of a particular religion.

This decision does not, therefore, really change the way school districts must analyze efforts to place religious symbols on school grounds.  It is still something schools should shy away from, and this case is a lesson that high profile, contentious policies can't be based on how the media or pundits portray the law.