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Free Speech p Issues

Karen Haase Harding H di & Shultz Sh lt (402) 434-3000 khaase@hslegalfirm.com H & S School Law @KarenHaase


Agenda g < CyberBullying/Bullying y y g y g < Religious Expression < Staff blogging and social networkingg


Bullying y g and Cyberbullying y y g


J.S. v. Blue Mountain Sch. Dist.  Middle School Student made fake MySpace profile for principal • Included photo from school website • Initially public; then limited • Students could only access off campus • Student suspended for 10 days; parents sued d


Layshock v. Hermitage Sch. Dist  High School Student made fake MySpace profile for principal • Included photo from school website • Other students created similar and more offensive ff i profiles fi • Students only accessed off campus • Student suspended for 10 days; placed l d iin alt. l sch, h banned b d ffrom extracurriculars, no commencement


J.S. and Layshock Inconsistent  Third Circuit granted en banc rehearing  Oral Argument June 3, 2010  Decision issued June 13, 2011  The Bottom Line? Schools lost both cases


J.S. and Layshock  Key legal points • School can’t punish off-campus speech because it is vulgar, inappropriate or even criminal • School S can only punish i off-campus ff p that is substantiallyy speech disruptive


What About the Staff?  “We recognize that vulgar and offensive speech such as that p y in this case – even made in employed just – could damage the careers of teachers and administrators and we conclude only that the punitive action taken by the school district violated the First Amendment free speech rights i ht off JS.” JS ”  i.e. “We don’t care”


When Students Are Vi i i d Victimized


T.K. v. New York Dept’t of Ed., (E.D.N.Y 2011) < LD student bullied by peers < Ct.: Ct : < No First Amendment protection for bullies < “…merely …merely requires schools do what the Department of Ed Education ti h has ttold ld th them tto d do ffor years.”


J.C. v. Beverly Hills Unif. Sch. Dist. (Cal.)  8th grade girls talking smack about a peer; uploaded l d d tto Y YouTube T b  Principal p suspended p student who uploaded  Court: no disruption to school school, no nexus to education, no basis for punishment


Legal g Test: < If on campus: • Is I speech h llewd, d vulgar, l socially i ll inappropriate pp p • Does speech cause a “material and substantial disruption??Is t a matter of p public concern? < If off campus • Does speech cause a material and substantial disruption?


Religious g Expression p


The First Amendment’s Religion Clause “Congress shall make no law respecting ti an establishment t bli h t off religion, or prohibiting the free exercise thereof . . .”


The First Amendment’s Religion Clause  Establishment i Clause: C g shall make no “Congress law respecting an establishment of religion…”  Free F Exercise E i Clause: Cl “… or prohibiting the free exercise thereof …”


Legal Standards for Students’ Religious Expression < Kids aren’t “the government” < difference “between ggovernment speech p endorsing religion, which the Establishment Clause forbids, forbids and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect”


Be Careful What You Wish For


K.A. v. Pocono Mtn. Sch. Dist. (P D. (Pa. D Ct. Ct 2011)  Elementary student brought flyer inviting peers to Christmas party sponsored by girl’s church. church  Student had to turn the flyer into the principal for approval, who in turn had thee superintendent supe e de look oo at it,, bec because use hee claimed it was religious in nature.  The Th superintendent i t d t rejected j t d th the requestt based on district policy


Challenged Policies ď&#x192;&#x2DC; Policy: "Any requests from civic organizations or special interest groups...must be examined to insure that such h activities ti iti promote t student t d t interests i t t primarily, rather than the special interests of any particular group" ď&#x192;&#x2DC; Prohibits expression that "seek(s) seek(s) to establish the supremacy of a particular religious denomination denomination, sect or point of view."


K.A. v. Pocono Mtn. Sch. Dist. (P D. (Pa. D Ct. Ct 2011)  Plaintiff: • flyer was prohibited "solely because of the religious nature of the message". • school usually allows flyers and other invitations to be distributed  Defendant: D f d • District regulating “commercial commercial speech speech” • K.A. treated like any other student


K.A. v. Pocono Mtn. Sch. Dist. (P D. (Pa. D Ct. Ct 2011)  District Di i Court C (Decision (D i i 10/20/11) • Forum Analysis vs. Student Expression • Case governed by Tinker • School’s fears re 3rd party • Complete ban on any type of “solicitation,” also violates First Amend.


Morgan v. Swanson

th (5

Cir. 2011)

 Elementary students suing Plano, TX schools  Alleged First Amendment Violations • No Christmas parties allowed • References to Christian holidays banned • Cards to solders censored • Goodie bags searched and confiscated • Tickets to church p play y banned and confiscated • Birthday treats censored • After-school distribution prohibited as well


Morgan v. Swanson

th (5

Cir. 2011)

 School’s Defense • Constitution Constit tion does not prohibit viewpoint ie point discrimination against religious speech in elementary schools • Qualified immunity • First Amendment is not implicated by restrictions on student-to-student distribution of non-curricular materials by elementary school students to their classmates


Morgan v. Swanson

th (5

Cir. 2011)

 District Court: no qualified immunity  5th Circuit: Circ it: no qualified q alified immunity imm nit • No conclusion about truth of allegations • No conclusion about disruption • Only deciding whether elementary school students have a First Amendment right to be free from religious-viewpoint g p discrimination while at school.  En banc rehearing granted, granted oral arguments held May 23, 2011


Morgan v. Swanson

th (5

Cir. 2011)

 En banc Court: “Answering this question req ires recourse requires reco rse to a complicated body bod of law la that seeks, often clumsily, to balance a number of competing First Amendment imperatives. This body of law failed to place the constitutionality of the defendants' conduct beyond y debate,, so they y are entitled to q qualified immunity.”  Court still held that principals' principals actions were unconstitutional.


Morgan v. Swanson

th (5

Cir. 2011)

 Interesting Holdings of the en banc Court: • Tinker applies to elementar elementary st students dents • Schools may be allowed to discriminate based on viewpoint when materials distributed in the classroom • Still unclear whether schools can use entanglement g concerns to jjustify y discrimination • Role of parents relevant


Sports/Coaches/ FCA


Doe v. Duncanville Ind Sch Dist, (5th Cir. 1995)  School’s basketball coach initiated prayers before games and practices  Teams and coaches gathered at midcourt/mid-field court/mid field for post-game post game prayer  Choir had “The Lord Bless You and Keep You” You as theme song  Gideons distributed Bibles during school  Student St d t singled i l d outt when h she h d declined li d tto participate


Doe v. Duncanville Ind Sch Dist, (5th Cir. 1995)  Plaintiff: Unconstitutional endorsement of religion  School • Can Can’tt prevent employees from praying because would violate coach’s free exercise rights • Theme song not endorsement • Gideons Gid nott endorsement d t


Doe v. Duncanville Ind Sch Dist, (5th Cir. 1995)  Ct: “[t]he challenged prayers take place during school-controlled, curriculumrelated activities that members of the basketball team are required to attend. During these activities . . . coaches and other school employees are present as representatives of the school and their actions ti are representative t ti off [school] [ h l] policies.”


Courts’ Concerns with Staff-Lead Prayer:  It could appear that the school endorses the teacher’s religious views.  Could have coercive effect on the students


Borden v. Sch. Dist., (3d Cir. 2009)  School policy prohibited coaches from participating in student prayer  Coach sued  District Ct: nothing wrong with coach participating so long has he did not lead  Appellate Ct: no First Amend. Amend right to pray in employee’s role as public employee l  U.S. Supreme Court: denied cert


Legal Test  Purpose Prong: the public school’s action must have a primary secular purpose  Effect Prong: the primary or principal effect of the public school action must be one that neither advances nor inhibits religion.  Entanglement Prong: the public school action must not result in an excessive entanglement of government with religion.


What to do?  Walk the straight and narrow  Seek S k qualified lifi d llegall advice d i • Not from board • Not from patron • Not from advocacyy group g p • Not from law books • Not from your buddy • Don’t use common sense


Staff Blogging gg g and Social Networkingg < Pickering, 391 U.S. 563 (1968) If a employee speaks as a citizen on a matter of public concern the district must show h it h had d an adequate d t jjustification tifi ti ffor treating the employee differently from any other member of the public.


< Garcetti,, 547 U.S. 410 ((2006)) When public Wh bli employees l make k statements t t t pursuant to their official duties, the employees are not speaking as citizens for First Amendment p purposes, p , and the Constitution does not insulate their communication from employer discipline.


Legal g Test: < Is it a matter of p public concern? < Is teacher speaking as a citizen or employee? l ? < Is there unique q jjustification?


Free Speech p Issues

Karen Haase Harding H di & Shultz Sh lt (402) 434-3000 khaase@hslegalfirm.com H & S School Law @KarenHaase


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