nrsca first amendmentpdf

transcript

Free Speech Issuesp

Karen HaaseH di & Sh ltHarding & Shultz

(402) 434-3000khaase@hslegalfirm.com

H & S School Law

@KarenHaase

Agendag< CyberBullying/Bullyingy y g y g< Religious Expression< Staff blogging and social< Staff blogging and social

networkingg

Bullying and Cyberbullyingy g y y g

J.S. v. Blue Mountain Sch. Dist.Middle School Student made fake

MySpace profile for principal• Included photo from school websiteIncluded photo from school website• Initially public; then limited• Students could only access off

campuscampus• Student suspended for 10 days;

dparents sued

Layshock v. Hermitage Sch. DistHigh School Student made fake

MySpace profile for principal• Included photo from school websiteIncluded photo from school website• Other students created similar and

ff i fimore offensive profiles • Students only accessed off campusStudents only accessed off campus• Student suspended for 10 days;

l d i l h b d fplaced in alt. sch, banned from extracurriculars, no commencement

J.S. and Layshock InconsistentThird Circuit granted en banc

rehearingOral Argument June 3, 2010Oral Argument June 3, 2010Decision issued June 13, 2011The Bottom Line? Schools lost both

casescases

J.S. and LayshockKey legal points

• School can’t punish off-campus speech because it is vulgar,speech because it is vulgar, inappropriate or even criminalS i ff• School can only punish off-campus speech that is substantially p ydisruptive

What About the Staff?“We recognize that vulgar and

offensive speech such as that employed in this case – even made in p yjust – could damage the careers of teachers and administrators and weteachers and administrators and we conclude only that the punitive action taken by the school district violatedtaken by the school district violated the First Amendment free speech i ht f JS ”rights of JS.”

i.e. “We don’t care”

When Students Are Vi i i dVictimized

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 requires schools do…merely requires schools do

what the Department of Ed ti h t ld th t d fEducation has told them to do for years.”

J.C. v. Beverly Hills Unif. Sch. Dist. (Cal.)

8th grade girls talking smack about a l d d t Y T bpeer; uploaded to YouTube

Principal suspended student who p puploaded

Court: no disruption to school noCourt: no disruption to school, no nexus to education, no basis for punishmentpunishment

Legal Test:g< If on campus:

I h l d l i ll• Is speech lewd, vulgar, socially inappropriatepp p

• Does speech cause a “material and substantial disruption??Is tand substantial disruption??Is t a matter of public concern?p

< If off campus• Does speech cause a material and• Does speech cause a material and

substantial disruption?

Religious Expressiong p

The First Amendment’s Religion Clause

“Congress shall make no law ti t bli h t frespecting an establishment of

religion, or prohibiting the free exercise thereof . . .”

The First Amendment’s Religion Clause

i CEstablishment Clause: “Congress shall make no glaw respecting an establishment ofestablishment of religion…”

F E i ClFree Exercise Clause: “… or prohibiting the free exercise thereof …”

Legal Standards for Students’ Religious Expression

< Kids aren’t “the government”< difference “between government speech g p

endorsing religion, which the Establishment Clause forbids andEstablishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercisethe Free Speech and Free Exercise Clauses protect”

Be Careful What You Wish For

K.A. v. Pocono Mtn. Sch. Dist.(P D Ct 2011)(Pa. D. Ct. 2011)

Elementary student brought flyer inviting Elementary student brought flyer inviting peers to Christmas party sponsored by girl’s churchgirl’s church.

Student had to turn the flyer into the principal for approval, who in turn had the superintendent look at it, because he e supe e de oo , bec use eclaimed it was religious in nature.

Th i t d t j t d th t The superintendent rejected the request based on district policy

Challenged Policies Policy: "Any requests from civic

organizations or special interestorganizations or special interest groups...must be examined to insure that

h ti iti t t d t i t tsuch activities promote student interests primarily, rather than the special interests of any particular group"

Prohibits expression that "seek(s) to Prohibits expression that seek(s) to establish the supremacy of a particular religious denomination sect or point ofreligious denomination, sect or point of view."

Plaintiff: Plaintiff: • flyer was prohibited "solely because of

the religious nature of the message". • school usually allows flyers and otherschool usually allows flyers and other

invitations to be distributed D f dDefendant:

• District regulating “commercial speech”District regulating commercial speech• K.A. treated like any other student

Di i C (D i i 10/20/11)District Court (Decision 10/20/11)• Forum Analysis vs. Student ExpressionForum Analysis vs. Student Expression• Case governed by Tinker • School’s fears re 3rd party• Complete ban on any type of• Complete ban on any type of

“solicitation,” also violates First Amend.

Morgan v. Swanson (5th Cir. 2011) Elementary students suing Plano, TX schools Alleged First Amendment Violations 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 play banned and p y

confiscated• Birthday treats censored• Birthday treats censored• After-school distribution prohibited as well

Morgan v. Swanson (5th Cir. 2011) School’s Defense

• Constit tion does not prohibit ie point• Constitution does not prohibit viewpoint 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 theirelementary school students to their classmates

Morgan v. Swanson (5th Cir. 2011) District Court: no qualified immunity 5th Circ it: no q alified imm nit 5th Circuit: no qualified immunity

• 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 discrimination g pwhile at school.

En banc rehearing granted oral arguments En banc rehearing granted, oral arguments held May 23, 2011

Morgan v. Swanson (5th Cir. 2011) En banc Court: “Answering this question

req ires reco rse to a complicated bod of larequires recourse to a complicated body of law 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 debate, so they are entitled to qualified y , y qimmunity.”

Court still held that principals' actions were Court still held that principals actions were unconstitutional.

Morgan v. Swanson (5th Cir. 2011) Interesting Holdings of the en banc Court:

• Tinker applies to elementar st dents• Tinker applies to elementary students• Schools may be allowed to discriminate

based on viewpoint when materials distributed in the classroom

• Still unclear whether schools can use entanglement concerns to justify g j ydiscrimination

• Role of parents relevant• Role of parents relevant

Sports/Coaches/ FCA

Doe v. Duncanville Ind SchDist, (5th Cir. 1995)

School’s basketball coach initiated prayers before games and practices

Teams and coaches gathered at mid-court/mid-field for post-game prayercourt/mid field for post game prayer

Choir had “The Lord Bless You and Keep You” as theme songKeep You as theme song

Gideons distributed Bibles during schoolSt d t i l d t h h d li d t Student singled out when she declined to participate

Plaintiff: Unconstitutional endorsement of religion

School• Can’t prevent employees from prayingCan t prevent employees from praying

because would violate coach’s free exercise rightsexercise rights

• Theme song not endorsementGid t d t• Gideons not endorsement

Ct: “[t]he challenged prayers take place during school-controlled, curriculum-related activities that members of the basketball team are required to attend.basketball team are required to attend. During these activities . . . coaches and other school employees are present asother school employees are present as representatives of the school and their

ti t ti f [ h l]actions are representative of [school] 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 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 District Ct: nothing wrong with coach

participating so long has he did not lead Appellate Ct: no First Amend right to Appellate Ct: no First Amend. right to

pray in employee’s role as public lemployee

U.S. Supreme Court: denied cert

Legal Test Purpose Prong: the public school’s action

must have a primary secular purposemust 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 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 S k lifi d l l d i Seek qualified legal advice

• Not from board• Not from patron • Not from advocacy groupy g p• Not from law books• Not from your buddyNot from your buddy• Don’t use common sense

Staff Blogging and Social gg gNetworkingg

< Pickering, 391 U.S. 563 (1968)

If a employee speaks as a citizen on aIf a employee speaks as a citizen on a matter of public concern the district must h it h d d t j tifi ti fshow it had an adequate justification for

treating the employee differently from any other member of the public.

< Garcetti, 547 U.S. 410 (2006), ( )

Wh bli l k t t tWhen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the p p ,Constitution does not insulate their communication from employercommunication from employer discipline.

Legal Test:g< Is it a matter of public concern?p< Is teacher speaking as a citizen or

l ?employee?< Is there unique justification? q j