Dress CodeState law does not give students the right to choose their mode of dress. Thus, the matter of student dress and grooming is at the discretion of local school districts. A common question rem

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Dress Code

State law does not give students the right to choose their mode of dress. Thus, the matter of student dress and grooming is at the discretion of local school districts. A common question remains: Can school districts have a dress code that discriminates on the basis of gender?

Pay close attention to Chapter 4, especially the Tinker case which highlights that “conduct by the student, in class or out of it, which for any reason—whether it stems from time, place, or type of behavior—materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech” (p. 65).

In your discussion post,

  • Present an argument to the question, “Can school districts have a dress code that discriminates on the basis of gender?” using the text and one outside source to support your explanation.
  • Refer to at least two statements from the Linking to Practice Do and Do Not suggestions in Chapter 4 (p. 70) to further explain your rationale for your dress code argument.

Please answer all the questions in a full paragraphs that make sense….

Dress CodeState law does not give students the right to choose their mode of dress. Thus, the matter of student dress and grooming is at the discretion of local school districts. A common question rem
Chapter 3 Education, Religion, and Community Values Introduction This chapter discusses one of the most controversial issues school leaders face: the role of religion in the public school. Regardless of personal viewpoint, religious issues elicit strong emotions. There also seems to be very little room for compromise. In addition to community pressure, many teachers, students, school administrators, and school board members have strong beliefs regarding the place of religion in public schools. This chapter addresses some of the legal guidelines regarding religious expression in public schools and presents an ethical model illustrating the importance of effective communication when issues of conflicting interest arise. Focus Questions How may school leaders use ethical models to improve communication and decision making? Are public schools “religion-free” zones? Should students be allowed to express their religious beliefs at school? Under what circumstances? Should teachers and other adults express their religious beliefs at school? Under what circumstances? Key Terms Discourse ethics Equal Access Act Establishment Clause Forum Free Exercise Clause Viewpoint discrimination Case Study Candy Canes On Monday before the winter break, Edgewood Elementary School principal Joyce Smith called Flora Norris, Assistant Superintendent of Elementary Education in North Suburban School District. “Dr. Norris,” Joyce began, “It has come to my attention that several third- and fourth-grade students who attend East Unity Church are handing out candy canes to their teachers and classmates. The peppermint candy canes have several religious messages on them. One reads, ‘Jesus is the Reason for the Season.’ The rest have similar messages. All of the candy canes are tied with a green ribbon inviting students and their parents to attend East Unity Church for Christmas Eve services. What should we do?” Flora thought for a moment. She knew the minister at East Unity quite well. He had a reputation for pushing the envelope when it came to religion and school district policy. “You know the policy, Joyce. Students may hand the candy canes out before school, after school and during lunch, but not in class. Caution your teachers not to allow students to hand out the candy canes in class and not to accept the candy canes from students or comment on them.” It was not long before the East Unity minister called to state his concerns about students not being able to share their Christian message with other students in their classes. Soon afterwards the school board president called to ask Flora why all of a sudden the district had stopped cooperating with local churches. Sensing a problem, Flora immediately notified the superintendent. After her brief overview of the issue, the superintendent interrupted and stated, “I know. I already have had a call from a couple of board members. Apparently the Reverend enlisted all the elementary students that attend his church to hand out the candy canes. Now he is complaining to school board members about our policy.” Leadership Perspectives The case study “Candy Canes” illustrates the conflict generated by the role of religion in public schools. Unfortunately, the controversy has also become one of extremes. At one end of the continuum are those who advocate the promotion of religion (usually their own) in public schools. At the other end of the continuum are those who view public schools as religion-free zones. The stage for this controversy is found in the first 16 words of the First Amendment to the U.S. Constitution: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The first clause, the Establishment Clause, requires neutrality from government (state legislative bodies, school employees, and school boards) and prohibits public school advancement of religion. The second clause, the Free Exercise Clause, prohibits school officials from interfering with religious expression. The crux of the problem in balancing these two imperatives is this: Enforcing one clause often seems to violate the other. For example, in “Candy Canes,” the Free Exercise Clause clearly establishes the participating students’ right to religious expression. But, at what point does their free exercise violate the Establishment Clause? It is at this point, where one person’s Establishment Clause inhibits another person’s Free Exercise Clause and vice versa, that the seeds of controversy are sown. Part of the problem is that legal scholars, federal judges, and U.S. Supreme Court justices often disagree on when to apply which clause in the context of the public school. Is it permissible for public schools to place restrictions on a grade school student’s religious messages? Does restricting the message send the message that the student’s religious views are not welcome? Is it permissible to hang the Ten Commandments in the hallway of a public high school where the vast majority of teachers and students are Christian? Should it be permissible for student speakers to pray or proselytize during high school graduation ceremonies? These and other questions illustrate the difficulty in balancing the free exercise and establishment clauses. These questions also illustrate the ongoing culture wars over the role of religion in public education. Steven Waldman, in his excellent book Founding Faith (2008), tells the story of the evolution of the religion clauses in the First Amendment. Much of the following is adapted from his book. In the late 1700s, 11 of the 13 colonies had a state-sponsored religion. Yet Article VI, Clause 3 of the U.S. Constitution reads, “No religious test shall ever be required as a qualification to any office or public trust under the United States.” It is easy to see why this provision passed without much dissent. The framers of the Constitution were not thinking or contemplating the role of “government” in religion. They were debating the role of “the national government in religion” (Waldman, 2008, p. 131). In other words, the framers were not thinking of state-sponsored religion, but rather thinking about the federal government sponsorship of religion. It is true that many of the framers were very religious men. It is also true that when the framers met for the first time, many of them found themselves in the most religiously diverse group they had ever been in. So, what religion would the national government sponsor? This may be why the U.S. Constitution is a “stunningly secular (document). It does not mention Jesus, God, the Creator, or even Providence. The rights, we are told in the first three words, come from ‘we the people,’ not God the Almighty” (Waldman, 2008, p. 130). The Bill of Rights, however, was not written by the federal Constitutional Convention, but by the newly created Congress. The Bill of Rights is therefore a product of the “sausage grinder” of debate and political compromise. As one of the primary intellects behind the Bill of Rights, James Madison pushed to give the federal government the power to protect citizens from the “state tyranny” of a sponsored religion, and he argued unsuccessfully to apply the First Amendment to the states. As often happens in politics, Madison ended up completely reversing course and found himself having to convince members of Congress that the beauty of the First Amendment was that it continued to allow state governments to support religion (Waldman, 2008). Thus, the basis for the culture wars over religion and public education rests on a political compromise made more than 200 years ago. By the 1800s, most states had abandoned sponsorship of a particular religion. However, the controversy continues, and public school leaders often find themselves caught between those who wish to bring religion back into public schools and those who believe that public schools should be religion-free zones. Confronting these challenges requires not only an understanding of the applicable legal concepts, but also an understanding, appreciation, and use of the community’s diverse cultural, social, and religious resources. These challenges may also require  By the 1800s, most states had abandoned sponsorship of a particular religion. However, the controversy continues, and public school leaders often find themselves caught between those who wish to bring religion back into public schools and those who believe that public schools should be religion-free zones. Confronting these challenges requires not only an understanding of the applicable legal concepts, but also an understanding, appreciation, and use of the community’s diverse cultural, social, and religious resources. These challenges may also require the ability to put aside one’s own often deeply held beliefs and seek to understand the perspectives of others. The discourse ethics of Jurgen Habermas can provide guidance. ISLLC Standard 4B ISLLC Standards 5B and 5D Discourse Ethics: Resolving Issues of Conflicting Interests In the case study “Candy Canes,” Flora Norris is confronted with the conflicting demands of a variety of individuals, which could challenge the skills of even the most experienced school leader. However, the ISLLC standards require that she not only respond legally and decisively to the challenge, but also demonstrate sensitivity and impartiality and respect the rights of others. In other words, Flora’s ethical and legal responsibility is to lead the board of education to “make a conscious choice, rather than permitting the current practice to continue without justification” (Rebore, 2001, p. 242). ISLLC Standards 5B, 5C, 5D, and 5E In his book Moral Consciousness and Communicative Action (1990), the contemporary philosopher Jurgen Habermas proposes discourse ethics as a model of communication that may lead to the types of school cultures based on effective communication, collaboration, and mutual agreement outlined in ISLLC Standards 2A, 5B, and 5C. Discourse ethics is not designed to eliminate impartiality of judgment. Rather, it is a model designed to encourage active communication, an understanding of the perspectives of others, empathy, and rational argumentation instead of simply suggesting or imposing a solution on others. ISLLC Standards 2A, 5B, and 5C Discourse ethics is premised on active communication. In other words, in the case study “Candy Canes,” Flora Norris cannot assume that she understands the minister’s complaints, the position of several board members, or even Principal Smith’s concerns. To this end, discourse ethics is designed to create opportunities for open discussion and communication that provide a potential for understanding the perspectives of others, mutual agreement, and collective responsibility characteristic of cooperative school cultures. Seeking to understand the perspectives of others does not necessarily mean agreeing with those perspectives. However, seeking to understand serves as the foundation for the empathy necessary for rational arguments, for or against a particular normative practice or policy decision. In short, discourse ethics is a model that promotes the type of understanding necessary for cooperative school cultures characterized by collaboration, mutual agreement, and acceptance, rather than simple enforcement by policy. Reaching understanding, and thus validity, requires an element of unconditional acceptance of the views, needs, and wants of all concerned. It is this unconditional acceptance of the views of others that provides the background for the establishment of the validity of a norm or action rather than the mere de facto acceptance of a practice or action. In other words, what is justified is not necessarily a function of custom (the way things have always been done) but a question of justification. Discourse Ethics and Cooperative School Culture In discussing discourse ethics, Ronald Rebore (2001) makes a distinction between mediation and arbitration that provides guidance in the development of the type of cooperative school cultures called for in ISLLC Standards 2A, 4C, and 4D. Mediation is designed to seek understanding of the perspectives of others in order to facilitate. ISLLC Standards 2A, 4C, and 4D FIGURE 3-1 Discourse ethics: Resolving questions of conflicting interests. Mediation can be viewed as participants striving to reach understanding. Arbitration is designed to give an answer, or in other words, to reach a decision. Arbitration can be viewed in the same way as negotiating a compromise, where the participants try to strike a balance between conflicting interests to reach an equitable solution. The distinction between mediation (seeking to understand) and arbitration (reaching a reasoned decision) can provide a model for school leaders to use when faced with issues of conflicting interest (Figure 3-1). The case study “Candy Canes” can serve as an illustration of this model. Flora Norris faces several issues of conflicting interest and is charged by her position as assistant superintendent to attempt to lead the board to a conscious choice that is reasonable and justifiable. In this model, Flora’s efforts would begin with mediation. Step 1: Engage in active discourse. Discourse ethics rest on the assumption that justification of norms or decisions requires real discourse. In other words, Flora Norris cannot assume that she knows the views, claims, and perspectives of all individuals involved. Therefore, she must begin the process by actively seeking and engaging others in verbal communication. Step 2: Unconditional acceptance and appreciation of the perspectives of others. It is only through appreciating the perspectives of others that true empathy and understanding may occur (Habermas, 1990). Appreciating the perspectives of others does not necessarily mean agreeing with the other’s position. As Ronald Rebore (2001) explains, however, it is only after a school leader has at least a fundamental understanding of the perceptions of others that the leader can begin to form and lead others to reasonable judgments concerning what is right, fair, or just. Step 3: Rational and coherent argumentation. Rational argumentation results only from the establishment of cooperative relationships. In practical terms, it would be prudent to recognize that some participants may engage in threats, rewards, or manipulation to get their way. However, the normative behaviors of cooperative discourse are fundamental to the justification of policy. Cases of conflicting interests often require decision making or, in this model, arbitration. Step 4: Clarifying common interest. The clarification of common interest is not possible without active discourse, the unconditional acceptance of the perspectives of others, and rational argumentation. Reasoned decision making that results in accepted validity also requires consideration of the perspectives of those affected and almost always involves questions of rightness, fairness, and justice. Step 5: Evaluation of options. Reasoned decision making requires that options address questions of law and policy. Failure to adequately research and consider questions of law and policy creates significant opportunities for erroneous judgments. However, it is important to note that in this model, these considerations commence only after understanding, rational arguments, and clarification of common interest have been attempted. Step 6: Clarifying acceptable action. An acceptable outcome should meet at least four criteria: (a) it must accomplish the purpose, (b) it must demonstrate a respect for the rights of others, (c) it must be legally and ethically defensible, and (d) it must benefit students and their families. As Habermas (1990) points out, it is very difficult and often impossible to resolve conflicts of deeply held moral beliefs. “Candy Canes” may be such a case. Failure to reach understanding and at least an acceptable compromise perceived as fair by all concerned is the primary reason some disagreements of conflicting interests are referred to the judicial system in the first place. Consequently, learning to develop and sustain cooperative relationships as outlined in  ISLLC Standards 2A, 4C, 4D, 5B, 5D, and 5E and to appreciate the perspectives of others is a difficult but necessary educational leadership task in a diverse society. ISLLC Standards 2A, 4C, 4D, 5B, 5D, and 5E Linking to Practice Do: Collaborate with school and community members to develop proactive policies and practices that establish parameters of student religious expression at school. This dialogue may also neutralize some of the criticism that public schools are “antireligion.” Understand that school cultures become normative. Use the “Resolving Issues of Conflicting Interest” model presented in this chapter (or similar communication model) to develop normative practices of cooperative school cultures. Train faculty and others (such as a site-based team) in the communication model. Create opportunities to use the communication model in various situations. Begin meetings by sharing guidelines for mediation and arbitration. Make the focus of the meeting clear. Articulate the transition from seeking input, acceptance, and reasonable argumentation and the time for selecting a solution from alternatives. Know that decisions that lead to conscious choices are often much easier to defend from a legal and ethical point of view than those imposed by a policy-making authority. Do Not: Assume that knowledge of law and policy is all a school leader needs to make reasoned and generally accepted decisions. Public Schools and Religion There have been thousands of battles similar to the case study “Candy Canes” in local school districts all over the country about the proper role of religion in public schools. Although these battles have ebbed and flowed, Steven Waldman (2008) points to a few “seismic shifts” that stand out, including (1) the Civil War, (2) U.S. Supreme Court rulings that applied the First Amendment to the church–public school battle, and (3) Charles Darwin’s The Origin of Species. It is also difficult to argue that the passage of the Equal Access Act in 1984 and the application of forum analysis and viewpoint discrimination to religious expression in public schools have not had a similar impact on the church–public school debate. The Civil War At the end of the Civil War, the Northern victors concluded that the basic relationship between the federal government and the states needed to change (Waldman, 2008). Up until this time, the Bill of Rights had applied only to the national government and not to the states. After the war, the Northern victors decided that perhaps James Madison was correct: The Bill of Rights should also apply to state governmental action. The Fourteenth Amendment was ratified in 1866. The purpose of the amendment was to protect citizens by applying the protections of the Bill of Rights to state action. The men who ratified the Fourteenth Amendment most likely did not envision how this amendment would change the dynamic between religion and public schools. The U.S. Supreme Court and Religion The U.S. Supreme Court (and federal courts in general) applies strict scrutiny to First Amendment cases. This means that the court does not consider if some religious expression in public schools is permissible, but if there is some compelling reason why it is not permissible. It should also be noted that many—if not most—of the significant Supreme Court cases affecting religion in public schools were brought by religious people (Waldman, 2008). It is through this lens that we view the following summaries of important U.S. Supreme Court cases. Engel v. Vitale (1962): Held that school officials in New York State could not compose a prayer for students to recite. Abington Township School District v. Schempp (1963): The Court made it clear that study about religion, as distinguished from espousing or sponsoring religious expression, is constitutional. In other words, teaching about religions objectively or neutrally to educate students about a variety of religious traditions is permissible. Epperson v. Arkansas (1968): The U.S. Supreme Court invalidated an Arkansas law that forbade the teaching of evolution in public schools. Lemon v. Kurtzman (1971): The legal question in this case addressed whether or not government aid to religious schools was constitutional. In answering this question, the Court devised a three-pronged test. In order to pass constitutional muster, the governmental action or policy must: (1) have a secular purpose, (2) neither advance nor inhibit religion, and (3) not cause excessive entanglement between government and religion. If the action or policy fails any one of the prongs, then it does not pass constitutional muster. Stone v. Graham (1980): A Kentucky statute required the posting of a copy of the Ten Commandments, purchased with private contributions, on the wall of each public classroom in the state. The court held that Kentucky’s statute had no secular purpose and was therefore unconstitutional. Lynch v. Donnelly (1984): The Court considered whether the inclusion of a crèche in the city’s Christmas display violated the Establishment Clause. The court found that the display was not an effort to advocate a particular religious message and had “legitimate secular purposes.” More important to the discussion of religion and education was Justice O’Connor’s concurring opinion, where she established what is referred to as the Endorsement Test. Endorsement is a practice that endorses religion or religious beliefs in a way that indicates to those who agree that they are “favored” insiders. The other side of the coin is the “disapproval” of religion or religious beliefs in a way that indicates that believers are disfavored outsiders. Aguilar v. Felton (1985): The use of Title I funds to pay salaries of parochial school teachers violated the Establishment Clause. Wallace v. Jaffree (1985): A 1978 Alabama state law authorized a 1-minute period of silence in all public schools. Over the next few years, this statute evolved to authorize teachers to lead “willing students” in a prescribed prayer. The Court took care to protect the right of students to engage in voluntary prayer during a moment of silence contained in the original legislation, but found the 1982 legislation unconstitutional because of the clear intent to “return voluntary prayer” to the public schools. Board of Education v. Mergens (1990): The Court found that the Equal Access Act did not violate the Establishment Clause. Schools that have established a limited open forum must allow student-led religious groups the same access to facilities, newspapers, bulletin boards, public address systems, and so forth that is given to other student clubs and activities. Lee v. Weisman (1992): Prayers at graduation exercises and baccalaureate services have been a long-standing tradition at public schools throughout the United States. A Rhode Island student and her father challenged a school principal’s policy of inviting local clergy to offer an invocation and benediction at graduation. The Court reasoned that high school graduation is of such significance in the lives of many students that the inclusion of prayers at a public school graduation ceremony effectively “coerced” students to participate in religious exercise and resulted in governmental endorsement of religion (coercion test). Lamb’s Chapel v. Center Moriches Union Free School District (1993): A unanimous U.S. Supreme Court decision that found religious speech in public schools to be a fully protected subset of free speech. Agostini v. Felton (1997): In partially overruling Aguilar v. Felton, the Court found that it was not a violation of the Establishment Clause to use federal Title I funds to allow public school teachers to teach at religious schools. The instructional material must be secular and neutral in nature, and no “excessive entanglement” between religion and public schools was apparent. Edwards v. Aguillard (1987): The most recent U.S. Supreme Court decision involving teaching of creation science along with evolution involved a Louisiana statute named the Creationism Act. The act forbade the teaching of the theory of evolution in public elementary and secondary schools unless accompanied by instruction in the theory of “creation science.” The act did not require the teaching of either concept unless the other was also taught. The Supreme Court found that the act did not further its stated purpose of “protecting academic freedom” and that it impermissibly endorsed the religious belief that a supernatural being created humankind. Santa Fe Independent School District v. Doe (2000): The U.S. Supreme Court held a Texas District School Board policy allowing student-initiated prayers at football games to be unconstitutional. The policy titled “Prayer at Football Games” limited the message to those deemed “appropriate” by the school administration. The school district argued that students were not required to attend football games and that the student elections served as a “circuit breaker” to state endorsement of religion. However, the majority opinion pointed out that (1) students are subjected to only approved messages broadcast over the school’s public address system, (2) the process does nothing to protect minority views, and (3) many students, such as cheerleaders, band members, and certainly the players, are required to attend. These issues, and the long history in the school district of prayer at athletic events, led the Court to conclude, “The District . . . asks us to pretend that we do not recognize what every Santa Fe High School student understands clearly—that this policy is about prayer.” Good News Club v. Milford Central School (2001): The Court held that it is viewpoint discrimination when school districts by policy or practice allow non-sectarian groups to use school facilities and disallow religious groups’ equal access. The Court was very careful to point out, however, that not all speech is protected in a limited open forum. Darwin’s Theory of Evolution Darwin’s theory of evolution dramatically affected the culture wars in the United States. Rightly or wrongly, many religious people came to fear that the advance of science undermined their faith. Furthermore, many religious people believe that science and secularism have undermined morality and that secularism is at least indirectly responsible for discipline problems, disrespect of authority, and violence in public schools (Waldman, 2008). As a result of Edwards v. Aguillard (1987), there have been several efforts to counter the teaching of Darwin’s theory of evolution in public schools by requiring the addition of a disclaimer in science books. In a recent example, the Tangipahoa Parish School Board (TPSB) in southeastern Louisiana passed a resolution that required teachers to read a disclaimer immediately before the teaching of evolution. This disclaimer, in part, read: The Scientific Theory of evolution . . . should be presented to inform students of the scientific concept and not intended to influence or dissuade the Biblical version of Creation. . . . It is further recognized . . . that it is the basic right and privilege of each student to form his/her own opinion and maintain beliefs taught by parents. . . . Students are urged to exercise critical thinking. The Fifth Circuit Court of Appeals affirmed a district court ruling that this disclaimer violated the Establishment Clause (Freiler v. Tangipahoa Parish Board of Education, 1999). In applying the coercion test, the court found the board’s disclaimer devoid of secular purpose and called the school board’s stated purpose to promote critical thinking a “sham.” The TPSB’s request for an en banc hearing before the Fifth Circuit Court was denied by an 8–7 vote. In addition, the U.S. Supreme Court denied certiorari by a vote of 6–3. In a rare written dissenting opinion of the denial of certiorari, Justice Scalia (joined by Chief Justice Rehnquist and Justice Thomas) stated the opinion that Lemon lacked credibility and “we stand by in silence while a deeply divided Fifth Circuit bars a school district from even suggesting to students that other theories besides evolution—including but not limited to, the Biblical theory of creation—are worthy of their consideration” (Stader, Armenta, & Hill, 2002). In another challenge to the teaching of evolution in high schools, a Pennsylvania school board passed a resolution stating that “students will be made aware of gaps/problems in Darwin’s Theory and other theories of evolution, including . . . intelligent design” (quoted in Armenta & Lane, 2010, p. 78). The policy references intelligent design and the book Of Pandas and People. After a lengthy trial, Judge John E. Jones applied both the Lemon and endorsement tests and issued a sharply worded ruling in which he held that “intelligent design” was, as the plaintiffs argued, a form of creationism, and therefore unconstitutional (Kitzmiller v. Dover Area School District, 2005). Debates at the state level in Kansas, Utah, Texas, and several other states as well as intelligent design and evolution debates at local school boards across the country demonstrate the continued intensity generated by this issue (Armenta & Lane, 2010). The Equal Access Act and Religious Expression During the 1970s and early 1980s, courts generally supported the right of school districts to prohibit student-led religious clubs or groups on campus. The Equal Access Act (20 U.S.C. 4071-74) was passed in 1984 in response to public pressure and lobbying by Christian groups. The law applies only to public secondary schools that allow non-curricular clubs to meet outside of the school day or during other non-instructional time. An understanding of the Equal Access Act begins with forum analysis. A forum is simply a place, and speech rights can be determined by the nature of the place. Courts have referred to non-public fora, public fora, designated fora, limited public fora, and open fora. Community and federal parks are generally considered public or open fora. Restrictions on speech in a public forum require that the state demonstrate a compelling interest in suppressing the speech. Schools are usually considered to be either limited open fora or closed fora, depending on the circumstances. A closed forum is created when a school district does not allow non-curricular groups or clubs to meet during non-instructional time. Restrictions on all non-curricular speech are permissible in a closed forum. A limited open forum is created when schools allow non-curricular clubs or groups to meet during non-instructional time. Restrictions on speech are permissible in a limited open forum as long as the restrictions are reasonably related to the educational mission of the school and are viewpoint neutral. For example, a city government may not be able to ban certain activities in a public park (open forum) that a school district (limited open forum) may be able to ban on school property. The Equal Access Act applies to schools that have created a limited open forum by allowing at least one student-led, non-curriculum club to meet outside of class time. The language in the Equal Access Act is fairly straightforward. A secondary school that has created a limited open forum must allow additional clubs to be organized, as long as: The meeting is voluntary and student-initiated Teachers or other school employees do not sponsor the group School employees do not promote, lead, or participate in a meeting School employees are present at religious meetings only in a supervisory or non-participatory capacity The meeting does not materially and substantially interfere with the orderly conduct of educational activities within the school Non-school persons may not direct, conduct, control, or regularly attend activities of student groups Viewpoint Discrimination The Equal Access Act creates a statutory right for equal access to school facilities and vehicles of expression designated as a limited open forum. The extent of these rights is determined by policy and past practice. If a school allows non-curricular clubs to meet at lunch, during an advisory period, or after school, a limited open forum has been created during these times and places. If a school allows non-curricular student groups access to announcements or bulletin boards, for example, then these venues are now considered limited open fora (“Guidance on Constitutionally Protected Prayer,” 2003). Viewpoint discrimination occurs when some groups such as an after-school chess club are allowed to meet or use school bulletin boards, school announcements, or other means of school-sponsored communication and other groups such as the Fellowship of Christian Athletes are denied access on an equal basis (see Donovan v. Punxsutawney, 2003, as an example). This same logic applies when school districts have a policy or practice of allowing non-profit groups access to school bulletin boards, take-home flyers, or other means of communication. For example, several school districts allow non-profit groups to furnish flyers advertising activities of interest to children for students to take home to their parents. This policy or practice creates a limited open forum (“Guidance on Constitutionally Protected Prayer,” 2003). Consequently, religious groups must be treated the same as non-religious groups (see Child Evangelism Fellowship of Maryland, Inc. v. Montgomery County Public Schools, 2002, and Hills v. Scottsdale, 2003, as examples). Courts use the same logic when considering district facility use by community groups after school. If, for example, by policy or by past practice a board has allowed the YMCA or city council to use school facilities, a limited open forum has been created and religious groups must be treated the same as non-religious groups (Good News Club v. Milford Central School, 2001). Student Challenges to Equal Access One of the unintended consequences of the Equal Access Act was to create a venue by which more controversial groups, such as gay and lesbian support groups, could gain access to school facilities. If the school has created a limited open forum by allowing other non-curricular groups to meet during non-instructional time, the Equal Access Act prohibits schools from denying the same access (facilities, bulletin boards, hallways, and announcements, for example) to these groups (Colin v. Orange Unified School District, 2000; East High School Prism Club v. Seidel, 2000; Straights and Gays for Equity v. Osseo Area Schools, 2006, reaffirmed in 2008; and White County High School Peers Rising in Diverse Education v. White County School District, 2006, are examples of federal court equal access decisions supporting gay and lesbian support groups). In an exception to this trend, a Texas federal district court sided with the school’s decision to ban a gay–straight support group in Caudillo v. Lubbock (2004). This case differs from the other cases cited in at least one significant way: The gay–straight group allied itself with an outside advocate whose website linked information about safer sex practices. The school and the court viewed this information as “sexually explicit” and “obscene.” Unfortunately, supporting lesbian, gay, bisexual, and transsexual support groups’ petition for inclusion is sometimes not as easy as it sounds. For example, controversy followed when the Gay–Straight Alliance (GSA) petitioned the Boyd County (Canonsburg, Kentucky) High School to meet during non-instructional time, to use hallways and bulletin boards, and to make club announcements during homeroom as other student groups did. Controversy surrounding the GSA petition included a student walkout, open hostility from opponents, an acrimonious school board meeting, and a protest from local ministers (Boyd County High School Gay Straight Alliance v. Board, 2003). The district court had little trouble determining that Boyd County High School had created and continued to operate a limited open forum during non-instructional time and homeroom. Denying GSA the same opportunities violated the Equal Access Act. Next the court considered the uproar and disruption surrounding GSA. The court acknowledged that schools could ban groups that created “material and substantial disruption” to the educational process (Tinker v. Des Moines, 1969). However, the disruption was caused by GSA opponents, not GSA club members. This is an important point. The court interpreted Tinker v. Des Moines School District (1969) and the “heckler’s veto concept” (Chaplinsky v. New Hampshire, 1942) as designed to prevent school officials from punishing students for unpopular views instead of punishing the students who respond to the views in a disruptive manner. Consequently, the district must furnish the same opportunities to GSA as other non-curricular student groups. In short, “the values underlying the First Amendment demand that the conduct of hecklers not be permitted to quash the legitimate, non-disruptive, appropriately timed, appropriately mannered, and appropriated placed expression of students in public schools” (Stader & Graca, 2010). Boy Scouts of America Act The Boy Scouts of America Equal Access Act (Boy Scouts Act) is part of the No Child Left Behind Act of 2002. Under the Boy Scouts Act, school districts that have created a limited open forum by allowing one or more outside youth or community groups to meet on school premises or use school facilities before or after school hours may not deny equal access to the Boy Scouts or any other youth groups listed as a patriotic society. According to this act, school districts may not deny access or discriminate against the Boy Scouts or other patriotic youth groups for reasons based on membership or leadership criteria or oath of allegiance to God and country. The act does not require that schools sponsor the Boy Scouts or other similar organizations, but does require that these groups have equal access to facilities and other means of expression. State-Sponsored Religious Activities At least 35 states have legislation authorizing or requiring a moment of silence, meditation, or reflection at the beginning of each school day (Education Commission of the States, 2000). As long as the statutes does not authorize teachers to lead “willing students” in a prescribed prayer (Wallace v. Jaffree, 1985) or use language that seems to encourage students to use the time to pray (Doe v. School Board of Ouachita Parish, 2001), this type of legislation has been challenged with limited success. For example, the Fourth Circuit Court has recently affirmed a district court ruling that Virginia’s moment of silence law is constitutional (Brown v. Gilmore, 2001). The Fifth Circuit has more recently reached a similar conclusion by declaring a Texas moment of silence law constitutional (Croft v. Perry, 2009). Challenges to the Pledge of Allegiance based on the claim that the words “one nation under God” violate the Establishment Clause have met a similar fate. The Fourth Circuit and the Seventh Circuit both ruled that the National Pledge passes constitutional muster under the Establishment Clause, even though the words “under God” were added to the pledge by Congress in 1954 (Myers v. Loudon County Public Schools, 2005; Sherman v. Community Consolidated School District 21, 1992). The Texas Pledge of Allegiance was amended in 2007 to insert the words “under God.” The amended Texas Pledge reads “Honor the Texas flag: I pledge allegiance to thee, Texas, one state under God, one and indivisible.” Texas state law requires students to recite the National Pledge and the Texas pledge to the state flag once during each school day. The Texas Pledge law has been upheld by the Fifth Circuit (Croft v. Perry, 2010). District-Sponsored Religious Activites School districts as well as administrators, teachers, and other school employees are prohibited from sponsoring, endorsing, discouraging, or encouraging religious activity. It is permissible to release students for off-campus religious instruction during the school day, and many states have laws authorizing such practices (see Pierce v. Sullivan, 2004, as an example). Transportation and any expenses for instructional materials may not be supported by school district funds. It is unlikely, although not certain, that the giving of credit toward graduation for participation in off-campus religious instruction is constitutional. Released time for on-campus religious instruction is very problematic (Haynes & Thomas, 2001). For example, the Rhea County (Tennessee) school district had a long-standing practice of permitting Bryan College to conduct “Bible Education Ministry” in the county’s public elementary schools. The classes were conducted by Bryan College volunteers for 30 minutes once a week during the school day. The content of the lessons was clearly religious. On judicial review, the Sixth Circuit Court had little difficulty concluding that because the instruction occurred during the school day and on school property, it sent a “clear message of state endorsement of religion—Christianity in particular—to an objective observer” (Doe v. Porter, 2004). Displays and Holidays Holiday programs, often religious in content and purpose, dominate Christian traditions. Increased religious diversity and sensitivity to the religious views of others has created some concern over these traditions. Thus, sensitivity and an understanding of other perspectives are necessary. As Mawdsley and Russo (2004) point out, however, any religious displays may be suspect. The problem is, when is a display too religious? Or conversely, when is a display not religious enough? For example, David Saxe brought suit against the State College (Pennsylvania) Area School District claiming that a table display and song program at an elementary school holiday concert were not “Christian enough” (Sechler & Saxe v. State College Area School District, 2000). The table display was composed of several items including a Menorah, a Kwanzaa candelabrum, and several books. The concert consisted of several non-religious songs and a parody that apparently offended Saxe. On review, the district court found that the holiday display and song program sent a message of inclusion and were consistent with applicable U.S. Supreme Court rulings. Although seemingly frivolous, this case illustrates the fine line many school leaders walk between meeting community demands for continuing religious traditions and increased plurality and demands for neutrality. It is permissible to include some religious selections in school concerts and even to allow performances at religious sites as long as non-religious sites and music are also selected (Mawdsley & Russo, 2004). However, concerts dominated by religious music, especially when the concert is presented as part of a particular religious holiday, should be avoided (Haynes & Thomas, 2001). It has been clearly established that students should not be required to participate in any school activity, or part of an activity, that may be offensive to their religious beliefs. For example, two sophomore members of the school choir and their parents filed suit to prohibit the choir from rehearsing and performing “The Lord’s Prayer.” The district court granted the plaintiffs’ request for a permanent injunction (Skarin v. Woodbine Community School District, 2002). Linking to Practice Do: Understand the limitations on religious music and displays and where they are allowed as part of the curriculum, in concerts, and other public performances. Establish policies to fairly accommodate those students who wish to be excused from a concert or public performance (or possibly from a single song) because of religious reasons. The policy should be fairly administered and routinely granted. The policy should state reasonable ways for the student to make up the performance and not suffer grade penalty for failure to participate. Examine the selection of holiday music and displays before controversy erupts. Understand that any school-sponsored religious display is open to challenge (Mawdsley & Russo, 2004). Some challengers may consider the display too religious, others that the display is not religious enough. Including a wide range of secular, religious, and ethnic symbols as part of holiday displays may immunize schools from sponsorship concerns but possibly not from accusations of insensitivity to Christian traditions (Mawdsley & Russo, 2004). Become familiar with the nature and needs of the religious groups in the school community (Haynes & Thomas, 2001). Murals, Signs, and Other School-Sponsored Speech School-sponsored signs, literature, murals, and paintings have also generated controversy. However, courts are reluctant to second-guess the reasonable rules and regulations developed by school administrators. For example, a Wisconsin school principal invited student groups to paint murals in the school. Two student members of the Bible Club sued over the principal’s refusal to approve their preliminary sketch in totality (Gernetzke v. Kenosha Unified School District, 2001). The proposed mural included a heart, two doves, an open Bible with a well-known passage from the New Testament, and a large cross. The principal approved all but the cross, reasoning that so salient a Christian symbol would invite other suits and force him to approve other less savory murals proposed by the Satanic or neo-Nazi elements present in the school. The Seventh Circuit Court affirmed a lower court ruling in favor of the school district. The court was careful to point out that the principal had refused all or parts of other secular murals. His reasonable concerns over litigation and disorder did not demonstrate discrimination, but were a legitimate exercise of his authority to control messages that might cause disruption or bear the imprint of the school. Similarly, the Ninth Circuit Court found a school district’s decision to exclude certain advertisements on a baseball-field fence, including religious ones, reasonable (DiLoreto v. Downey Unified School District, 1999). In a similar decision, the 10th Circuit Court ruled that Columbine High School officials could exercise editorial control over numerous tiles designed to be permanently attached to school hallways. Current and past students, parents, rescue and police personnel, and mental health workers involved in the 1999 Columbine shooting were among those invited to participate in the project. The guidelines specified that tiles with references to the attack, names or initials of students, Columbine ribbons, religious symbols, or obscene or offensive content would not be fired or hung. Several tiles painted by the families of the victims violated these rules. After a meeting with families, the restrictions against tiles with their children’s names, dates other than 4-20, and the Columbine ribbon were relaxed, and parents were invited to repaint their tiles. The parents refused to change or repaint the tiles and brought suit. In an interesting and wide-ranging opinion, citing various fora analyses, forms of speech, and Hazelwood School District v. Kuhlmeier (1988), the 10th Circuit Court found that the tiles conveyed approval of the message by the school and were subject to the reasonable rules and restrictions developed by the district (Fleming v. Jefferson County School District R-1, 2002 cert. denied). Students and Religious Expression Students often wish to share their religious beliefs with other students in the school. Certainly, students do have this right under the Free Exercise Clause. For example, student-initiated before- and after-school activities such as “see you at the pole,” prayer groups, and religious clubs are permissible. Students may read a Bible or other religious material, pray, or engage other consenting students in religious discussion during non-instructional time such as lunch, recess, or passing time between classes. School officials may impose reasonable rules and regulations to maintain order, but may not discriminate against religiously based activities. Administrators, teachers, and other school employees should refrain from encouraging, discouraging, or promoting student prayer, Bible reading, attendance at a religious club meeting, and so forth (“Guidance on Constitutionally Protected Prayer,” 2003). Teachers and other school employees may not pray with students in public schools and may be terminated for doing so. Schools are not required to allow outside adults to come on campus and lead such an event. It is the rights of students, not outside adults, that are protected (Haynes & Thomas, 2001). It is not permissible for one student’s religion to determine the curriculum for all other students. Students may be excused from certain reading assignments, homework activities, and so forth on religious grounds. Schools may offer alternative assignments. However, if the requests for exemption or alternative assignments become overly burdensome for teachers, it is conceivable that a court would find the school district’s refusal to continue to offer multiple alternative assignments reasonable. A reasonable number of excused absences for religious reasons seem appropriate. Makeup work may be required (Haynes & Thomas, 2001). One area of concern to many teachers is what to do with student assignments or projects of a religious nature. Teachers may accept assignments or other student work that has a religious theme. In fact, NCLB (2002) clarifies this concept by stating that students may express religious beliefs in homework, artwork, or other written or oral assignments without penalty or reward because of the religious content. Teachers are not required to accept assignments that do not meet the established objectives of the assignment or inappropriately convey that the school sponsors the message (see Settle v. Dickson County School Board, 1995, and C. H. v. Oliva, 1997, as examples). If policy or practice has allowed students to distribute literature to other students during non-instructional time on school grounds, school policy should be applied equally to the distribution of religious material (Board of Education v. Mergens, 1990; Pope v. East Brunswick Board of Education, 1993). For example, a Massachusetts district court held that it was viewpoint discrimination to prohibit students from (and later punish them for) distributing candy canes containing proselytizing messages sponsored by a school Bible club during non-instructional time. In this case other groups on campus were allowed to distribute literature during non-instructional time (Westfield High School L. I. F. E. Club v. City of Westfield, 2003). As always, school administrators can deny the distribution of any literature, such as hate literature or literature containing gang symbols, which may cause substantial disruption. Simple disagreement with the message or undifferentiated concerns of disruption may not suffice to justify suppression of student speech. Mawdsley and Russo (2004) provide the following guidelines regarding student religious expression in public schools: Students are private actors and are not restricted by the Establishment Clause. Students with religious messages should not be prohibited from discussing their religious beliefs with others simply because of some undifferentiated fear of disruption. Students with religious messages must be treated the same as students with non-religious messages. Schools may choose to prohibit students from distributing religious literature during class time and at school-sponsored events. Limit student distribution of religious literature to non-instructional time and before and after school. In addition, school administrators can and should enforce harassment policies where student-to-student proselytizing has become unwelcome (Mawdsley, 1998). Linking to Practice Do: Acknowledge the rights of students to express their religious beliefs in school assignments, during non-instructional times, and before and after school. Understand that murals, signs, tiles, sports programs, and advertisements at extracurricular events convey the impression of school sponsorship. Student-Led Prayers at Graduation Prayers at graduation exercises and baccalaureate services have been a long-standing tradition at public schools throughout the United States. However, in a hotly debated ruling, the U.S. Supreme Court found such prayers unconstitutional (Lee v. Weisman, 1992). In response to Weisman, several school districts have considered allowing students to vote on whether to select a student to deliver a message of their choosing at school events and graduation. On one side of the debate are those who believe that student religious speech at graduation ceremonies violates the Establishment Clause. The U.S. Supreme Court supported the separationist argument in Santa Fe Independent School District v. Doe (2000). In Santa Fe, the court pointed out that constitutional rights are not subject to vote. In other words, a majority of students could not vote to suspend the Establishment Clause and have organized prayer at a school-sponsored event. In this reasoning, a graduation exercise is a school-sponsored event, and students are still being coerced, however subtly, to participate in a religious activity. Even a “non-sectarian” and “non-proselytizing” prayer may not solve the problem. To some Christians, the idea of a non-sectarian prayer is offensive. In addition, the U.S. Supreme Court held in Weisman that even non-denominational prayers may not be established by the government. There is also the problem of school officials trying to figure out whether or not a particular student prayer is proselytizing (Haynes & Thomas, 2001). For example, the Ninth Circuit Court upheld a school district’s decision not to allow two students to deliver a message at graduation that school officials considered proselytizing (Cole v. Oroville Union Free School District, 2000). The Ninth Circuit was soon faced with a similar question of a school principal’s censoring the proselytizing portions of a salutatorian address at graduation (Lassonde v. Pleasanton Unified School District, 2003). In this particular case the speech contained several personal references to God as well as several overtly proselytizing sections. Reasoning that the personal statements were acceptable, the school principal and district legal counsel censored the proselytizing comments of the speech because of Establishment Clause concerns. The student proposed a “disclaimer” stating that the views of the student speakers did not necessarily reflect the views of the district. This proposal was rejected by the district. The student reluctantly agreed to delete the proselytizing portions with the understanding that he could distribute uncensored copies of his speech outside the commencement area. One year later the student brought suit alleging that the censorship of his speech violated his First Amendment rights. The court held the actions of the district necessary to avoid a conflict with the Establishment Clause. The court reasoned that because the school district had obvious control over graduation and by past practice reviewed student speeches, any speech or actions would bear the imprint of the school. On the other side of this debate are those who contend that not allowing students to express their religious beliefs at graduation violates the Free Exercise Clause. This view has met with some success. For example, the Fifth Circuit Court held in 1992 that student-led prayer that was approved by a vote of the students and was non-sectarian and non-proselytizing was permissible at high school graduation ceremonies (Jones v. Clear Creek Independent School District, 1992). In addition, the 11th Circuit Court affirmed a lower court ruling that found student-initiated, student-led prayer during graduation permissible so long as the administration and faculty were not involved in the decision-making process (Adler v. Duval County School Board, 2000). As Judge Hill of the 11th Circuit Court explains: The . . . (Santa Fe) . . . policy is not a neutral accommodation of religion. The prayer condemned there was coercive precisely because it was not private. (However), a policy that tolerates religion does not improperly endorse it. Private speech endorsing religion is . . . protected—even in school. Remove the school sponsorship, and the prayer is private [italics added] (Chandler v. Siegelman, 2000, selected quotes). One suggestion for avoiding this controversy outlined in “Guidance on Constitutionally Protected Prayer” (2003) is a disclaimer clarifying that the speech (or views) expressed are the speaker’s and not the schools. These guidelines seem to suggest that schools may remain neutral by adding a disclaimer to the program. As Haynes (2003) points out, this approach may essentially create a public forum or free speech zone that relieves school officials from prior review of commencement speeches. Schools could continue to control profane, sexually explicit, or defamatory speech. However, the speech could include political or religious views offensive to many in the audience. In addition, if the speech is not reviewed in advance, any controversial, profane, or explicit views may not be known until after the speech has begun. School officials would then be faced with the unpleasant choice of either interrupting the speech or allowing it to continue. Further, as the Ninth Circuit Court pointed out in Lassonde (2003), disclaimers do not protect those with minority viewpoints from being coerced into choosing between an important milestone and being subjected to an unpleasant or unwanted proselytizing speech. Haynes (2003) suggests that the best place for prayers and sermons may be baccalaureate or other religious services scheduled after school hours during the week leading up to commencement. Baccalaureate services sponsored by private groups are permissible as long as the district is not favoring or disfavoring particular groups. For example, allowing the senior class to select the location and speakers for baccalaureate would seem permissible. If the school makes facilities available to other private groups, the Equal Access Act requires that facilities also must be made available to private groups for baccalaureate services. Linking to Practice Do: Discuss the role of students as commencement speakers. Develop proactive policies before controversy erupts. Seek common ground where individual groups of parents and students may express their religious preferences at extracurricular events without involving a school-owned public address system. A “moment of silence” would be one example (Haynes, 2003). Do Not: Create an open forum at commencement. It is difficult to understand how a disclaimer can immunize school officials from criticism for excessive proselytizing or from profane or unpopular speech at commencement services sponsored by the school. Employees and Religious Expression It would be unreasonable—and impossible—to expect teachers, administrators, and board members not to have religious beliefs. However, when employees walk through the schoolhouse gate, they assume the mantle of state authority and are required to take a neutral position while carrying out their duties. Administrators, teachers, and other school employees are prohibited by the Establishment Clause from encouraging or discouraging prayer, and from actively participating in religious activity with students at school (“Guidance on Constitutionally Protected Prayer,” 2003). For example, teachers and other school officials should not participate in or lead student prayer or use their position as respected role models to promote or encourage outside religious activities such as revivals, church outings, or other faith-based activities. In short, the rights of school employees and school representatives can be limited or curtailed where efforts at religious expression could be reasonably interpreted as implying public school endorsement (Mawdsley & Russo, 2004). For example, a Louisiana district court issued a permanent injunction prohibiting an elementary school principal from distributing Bibles to fifth-grade students (Jabr v. Rapides Parish School Board, 2001). Similarly, the Eighth Circuit found the orchestration of baccalaureate ceremonies by senior class sponsors to violate the Lemon test. The court found that the school district took an active role in the production of “a service that continued the tradition of having local clergy offer prayers and religious messages” (Warnock v. Archer, 2006). This case points out that baccalaureate services should in fact be student organized and led. Administrators, teachers, and other school employees may take part in religious activities where the overall context makes it clear that they are not acting in their official capacity (“Guidance on Constitutionally Protected Prayer,” 2003). For example, it would seem appropriate for school employees to participate in a religious activity held at the school during the evening and in privately sponsored baccalaureate services. Teachers and others may elect to pray or read the Bible or other religious documents during the school day, as long as students are not involved, and they may wear non-obtrusive jewelry or religious symbols such as a cross or star of David. Teachers and other employees may be disciplined and even terminated for promoting religious participation, even subtly. For example, fifth-grade teacher Roberts read silently from a Bible he habitually kept in plain view on his desk. In addition, a Christian poster was displayed in the classroom, and the classroom library contained two Christian books. Roberts did not read aloud or overtly proselytize to students. When a parent complained to the principal about Roberts’s poster and the two books, the teacher was instructed to remove the Bible from his desk, not to read from the Bible during school time, and to remove the poster and two Christian books from the classroom. On appeal, the 10th Circuit Court affirmed the trial court ruling, reasoning that the school district acted properly in taking action to disapprove of classroom activity that appears to promote a particular religion (Roberts v. Madigan, 1990). Similarly, a district court in Florida upheld the dismissal of a teacher for consistently refusing to follow a corrective action plan that prohibited her from distributing Bibles and posting religious posters in her classroom (Tuma v. Dade County Public Schools, 1998). Linking to Practice Do: Develop proactive policies that outline the religious rights and responsibilities of public school employees while on campus or representing the school at extracurricular events, field trips, or other off-campus school-sponsored activities. Do Not: Permit school employees to lead, encourage, hinder, or participate in student religious expression on school grounds. Prayer at School Board Meetings In Lemon v. Kurtzman, the U.S. Supreme Court articulated a three-pronged test to determine whether or not a governmental action is constitutional. Assuming that a school board has an obvious connection to public education, the Sixth Circuit found that prayer before a school board meeting violated all three prongs of Lemon (Coles v. Cleveland Board of Education, 1999). In a more recent example, a Tangipahoa Parish (Louisiana) School Board practice of starting board meetings with a sectarian prayer delivered by a board member, the superintendent, or a local minister was challenged by a parent (Doe v. Tangipahoa, 2005). The federal district court for eastern Louisiana noted that this and similar cases sit between two competing concepts: State-endorsed prayer is not permissible in public schools, but is permissible at the opening of a legislative session. The court also noted that school boards hold both a legislative and an educational function. Following the lead of the Sixth Circuit Court in Coles, the district court reasoned that a school board has an intimate relationship with the public school system. Therefore, the school board prayer violated Lemon and was thus unconstitutional. On appeal, the Fifth Circuit determined that the 1983 U.S. Supreme Court case Marsh v. Chambers applied to school board prayers (Doe v. Tangipahoa, 2006). In Marsh, the court considered a challenge to a Nebraska practice of employing a chaplain to deliver religious invocations during legislative sessions. The court reasoned that historically the framers established a paid chaplain position for federal legislative sessions. Therefore, if the framers did not see a problem with federal legislative prayer or chaplaincy, why should this be a problem for a state legislative body? On review, the district court abandoned Lemon and applied the Marsh test to the prayer practice (Doe v. Tangipahoa, 2009). Using Marsh as a guide, the court concluded that despite numerous prayers that referenced Jesus specifically, the Tangipahoa school board prayers fell within the scope of legality under the Establishment Clause (Fetter-Harrott, 2010). Public Money and Private Schools For the past half century, the U.S. Supreme Court and several circuit courts have drawn a relatively well-defined line in the sand between public money and aid to private schools. However, several recent decisions have significantly blurred this line and in some cases erased it altogether. This transition essentially began with Agostini v. Felton (1997), where a Supreme Court majority determined that several past decisions were “no longer good law.” In Agostini the Court determined that Title I monies could be used to provide public employees to teach remedial classes at private schools, including religious schools. In doing so, the Court established two basic criteria for determining the constitutionality of such aid: (1) Can any religious indoctrination that occurs in those schools be reasonably attributed to governmental action, and (2) does the aid program have the primary effect of advancing or inhibiting religion? The Court followed this same logic in Mitchell v. Helms (2000) in upholding the constitutionality of the use of Title VI monies to purchase equipment for private schools in Jefferson Parish, Louisiana. Vouchers One of the more controversial topics is the use of public money to fund student attendance at private and parochial schools through the use of tax credits/deductions or vouchers. A voucher is a “payment the government makes to a parent, or an institution on a parent’s behalf, to be used for a child’s education expenses” (Education Commission of the States, 2002, p. 1). A tax credit provides a direct reduction to the tax liability of a qualifying individual, and a tax deduction is a reduction in taxable income made prior to calculating tax liability (Education Commission of the States, 2002). The constitutionality of publicly funded vouchers has been established at the federal level by the U.S. Supreme Court in Zelman v. Simmons-Harris (2002). In this case, the Court upheld a voucher program in Cleveland by concluding, “The Cleveland voucher program affords parents of eligible children genuine non-religious options.” The Court did not dispute that the program was established for the valid secular purpose of providing educational support for poor children in an admittedly failed school system. Rather, the Court focused on the single legal question of whether the Ohio program advances or inhibits religion. To answer this question, the Court considered the distinction between governmental programs that provide aid directly to religious schools and those programs in which state funds reach religious schools indirectly through the independent choices of numerous parents and students. In the latter case, the public funding is attributed to the student, who may choose to remain at a public school that receives funding according to average daily enrollment or to attend a religious school that receives funding by tuition. A majority of the Court had little trouble making this distinction and held that the Ohio voucher system did not violate the Establishment Clause of the First Amendment. The U.S. Supreme Court has also considered the question of tax credits for contributions to support scholarships for private schools, many of which are religious in nature (Arizona Christian School Tuition Organization v. Winn, 2011). Arizona provides tax credits for contributions to school tuition organizations, or STOs. STOs use these contributions to provide scholarships to students attending private schools, many of which are religious. A group of Arizona taxpayers challenged the STO tax credit as a violation of Establishment Clause. The Court opined that a tax credit allows dissenting taxpayers to use their own funds in accordance with their own consciences. In this case, the STO tax credit does not “extrac[t] and spen[d]” a conscientious dissenter’s funds in service of an establishment or “force a citizen to contribute” to a sectarian organization. Rather, taxpayers are free to pay their own tax bills without contributing to an STO, to contribute to a religious or secular STO of their choice, or to contribute to other charitable organizations. With the federal question answered, the battleground now moves to the various states. In several states, voucher proponents face more restrictive state constitutional clauses than found in the federal Establishment Clause. These clauses are commonly referred to as “Blaine amendments” and effectively bar the use of public money for religious causes. Other state constitutions have provisions that protect individuals from being compelled to support any religious group without their consent. Currently 36 states have Blaine amendments; 18 states have both Blaine amendments and a consent clause. Only Louisiana, Maine, and North Carolina have neither (Darden, 2002). Summary In the past decade the legal battle between two equally determined segments of our society has intensified. On occasion, public school employees and students are vocal advocates of one segment or the other, often simultaneously in the same school. On other occasions, community groups create significant pressure on local schools to accommodate their particular religious preferences. Students, teachers, and community groups do have a legal right to practice and advance their religions, but not at the expense of others. Finding this balance in this emotional arena is exceedingly difficult. However, as America’s schools become more ethnically and religiously diverse, failures to recognize, respect, and accommodate this increased diversity hold the potential of needlessly Balkanizing an already challenged public school system. Connecting Standards to Practice Let Us Pray Assistant Superintendent Sharon Grey was well aware of the religious views of new school board member Alison Watts. Consequently, Sharon was not surprised when Alison introduced a new policy for the board to consider. The proposed policy, entitled “Student Expression of Religious Viewpoints,” would create a limited open forum at football games and commencement activities and allow students to speak at these events. The policy would require Riverboat High School administrators to put disclaimers in graduation and football programs that the student speech is not school sponsored. It also required the administration to consult with the student council membership and create a process for the neutral selection of students to speak at such events. The proposed policy read, in part: To ensure that the school district does not discriminate against a student’s publicly stated voluntary expression of a religious viewpoint and to eliminate any actual or perceived affirmative school sponsorship or attribution to the district of a student’s expression of a religious viewpoint Riverboat School District shall adopt a policy, which must include the establishment of a limited open forum for student speakers at commencement activities and all high school home football games. The policy regarding the limited open forum must also require the high school administration in consultation with the student council membership to: (1) Provide the forum in a manner that does not discriminate against a student’s voluntary expression of a religious viewpoint or on an otherwise permissible subject; (2) Provide a method, based on neutral criteria, for the selection of student speakers at high school football games and graduation ceremonies; (3) Ensure that a student speaker does not engage in obscene, vulgar, offensively lewd, or indecent speech; and (4) State, in writing, that the student’s speech does not reflect the endorsement, sponsorship, position, or expression of the district. Question Argue for or against the proposed policy to create a limited open forum at football games and commencement. Clarify the legal question. Cite ISLLC standards and case law (i.e., Lee v. Weisman, Lamb’s Chapel v. Center Moriches, Jones v. Clear Creek, etc.) to support your answer. Write a letter or memorandum to the superintendent or school board president justifying your position.
Dress CodeState law does not give students the right to choose their mode of dress. Thus, the matter of student dress and grooming is at the discretion of local school districts. A common question rem
Chapter 4 Student Privacy and First Amendment Rights Introduction The First Amendment protects the freedoms of religion, the press, association, and to petition the government for redress of grievances. This chapter addresses speech and association rights as they apply to public school students on and off campus. Students do have some rights to express their ideas and opinions in schools. However, student rights to expression in school are limited. Achieving the right balance between student freedom of expression and maintaining order is often difficult. But, understanding the importance of student rights to expression is part of being an ethical and humane school leader. Student rights to privacy of personal and academic records are defined by federal law. Understanding these rights is also part of effective school leadership. This chapter presents selected ethical and legal guidelines to aid in this understanding. Focus Questions Should there be a balance between providing a safe and efficient school and the rights of students to express an unpopular viewpoint? What are the rights of students to confidentiality of their personal and academic records? What rights to expression do students have? When may student rights be suppressed? What is meant by the term true threat? Key Terms Culture Directory information FERPA Lifeworld School culture Social capital Systemsworld Threat assessment Case Study Shanna’s Shirt Ethan Miller finished his phone conversation with the superintendent with a sigh. The case of the Gay–Straight Club and Shanna’s Shirt had turned into a real challenge. Ridge Woods High School served a rural Missouri community with an enrollment of 850 students. In September a group of students petitioned the school board to allow a “Gay–Straight Club” (GSC) to meet during the same times and places and have access to the same communication as the long-established Bible Club. After considerable community uproar, threatened lawsuits, and a dozen emotional meetings, the board of education decided to allow the club to meet during non-instruction time. After the first GSC meeting, two male and three female members of the GSC reported being sexually harassed by other students on campus based on their perceived sexual orientation. At least two parents of the students claiming to be harassed filed suit in federal court. The female teacher who was the GSC sponsor reported being taunted by students in the hallway and receiving harassing phone calls at home. The school district insurance company believed the school district was at risk of a significant jury award and encouraged a settlement with the student-plaintiffs and the sponsor. The day after the school board agreed to settle, Shanna Tyler wore a T-shirt to school with the imprint “Homosexuality is Shameful. Romans 1:27” on the front and “Be ashamed. Our school has embraced what God has condemned” on the back. The district dress code states only that clothing may not advocate or advertise drugs, alcohol, or tobacco and may not contain lewd, profane, or vulgar language or symbols. Apparently, several community groups were supporting Shanna’s shirt and her message. Ethan’s conversation with the superintendent had reinforced the point that many community members believed that homosexuality is sinful and were unhappy. At the same time, several members of the Gay–Straight Club reported to teachers and others that they were offended by the message. A few teachers had expressed to Ethan that he should send Shanna home until she agreed not to wear the shirt at school. Angry with the board settlement, several teachers supported Shanna’s right to wear the shirt. Leadership Perspectives All schools are composed of complex student societies that have one thing in common: The “accepted” behavior in a school is normative and determined to a great extent by a clique of students, especially in middle school and high school, who formulate, model, and enforce the unofficial norms for acceptable dress and behavior by the rest of the student body. Lyle E. Schaller (2000) summarizes the importance of this point: “Students’ perceptions of their school environment are more likely to influence their behavior than the perceptions of that same environment held by a principal or a school board member or a teacher or a parent or a taxpayer” (p. 14). As important as student perceptions may be, school leaders have an obligation to maintain good order. In the opening case study, “Shanna’s Shirt,” Ethan Miller must decide to either allow Shanna to wear the shirt or to ban the wearing of the shirt on school grounds. Regardless of his choice, ISLLC Standard 5B requires that Ethan apply self-awareness, reflective practice, transparency, and ethical behavior to the problem of Shanna’s shirt. He also needs knowledge of the various policies, laws, and regulations enacted by state, local, and federal authorities that guide his decision. The conflict presented in “Shanna’s Shirt” is relatively clear. Shanna is expressing her displeasure with what she perceives as an unfair and unwise decision by the school board. She is also expressing her religious view that homosexuality is sinful. Several community members and teachers are supportive of Shanna’s message. Other students report being offended by the message. Ethan Miller is correct in considering balancing the legal rights of students with the need to maintain good order and harmony in the school. Both good order and Shanna’s First Amendment rights are important, but which should prevail? What rights do students have to express their growing independence? What rights do school leaders have to suppress unpleasant or critical speech in order to maintain a “safe, efficient, and effective learning environment”? What ethical principles should guide Ethan’s considerations? This chapter is designed to provide guidance in the often difficult choices inherent in this balance. ISLLC Standards 5B ISLLC Standard 5D ISLLC Standard 3 Lifeworlds and Systems: Policies, People, and School Culture ISLLC Standard 2 calls for school leaders who “promote the success of every student by advocating, nurturing, and sustaining a school culture . . . conducive to student learning.” There should be little doubt that understanding the importance of school culture is a significant part of effective school leadership. Sergiovanni (2000) states, “Most successful school leaders will tell you that getting the culture right and paying attention to how parents, teachers, and students define and experience meaning are two widely accepted rules for creating effective schools” (p. 11). But, what is school culture, and how do we recognize it when we see it? Rebore (2003) says that school cultures “consist of those attitudes, beliefs and values, feelings, and opinions that are shared by a significant number of their influential members and that are communicated to others” (p. 11). In other words, school culture is the normative glue that holds a particular school together by defining and perpetuating how administrators, teachers, parents, and students interact with one another (Sergiovanni, 2000). The significance of this normative glue is that teachers, students, and parents who are new to the campus are soon influenced and invariably engulfed by the campus culture. ISLLC Standard 2 The German philosopher Jürgen Habermas (1987) provides a theoretical framework and language system for understanding school culture. Habermas views all social systems, including corporations, football teams, and families, as existing simultaneously as a systemsworld and as a lifeworld. Viewing school districts, schools within a district, and classrooms within a school as social systems is quite compatible with Habermas’s concepts of lifeworlds and systems. The lifeworld is represented by the normative behavior determined and perpetuated by the individuals (employees, students, players, parents, and children) who make up a particular environment. The lifeworld is symbolized by culture, community, and person. Culture represents the learned ways of believing, valuing, and behaving that bind people together (Gollnick & Chinn, 2004). These shared cultural patterns create and normalize a general agreement among the participants that becomes a natural and accepted way of communicating, behaving, and reacting to one another and to the environment. One’s own culture is viewed as natural, correct, and superior to other ways of thinking, believing, and behaving. Consequently, cultural influences become an unconscious blinder and a lens through which participants view and judge the world. Community is the heart of a school’s lifeworld (Sergiovanni, 2000). Communities generally have four common elements: styles of dress, music, language symbols, and ritual. Students may be members of several communities including a religious organization, a school volleyball team, and a Boy Scout troop. Students are also members of a school community who often share a common style of dress, have similar tastes in music, communicate in sometimes indecipherable language (at least to the uninitiated adult ear), and have well-understood rituals that govern how students interact with one another. Community membership is important because the participants know that they are connected to others, feel known and cared for by others, and are part of a social group that is valuable (Sergiovanni, 2000). In short, community membership develops social capital. Social capital refers to the resources, social support networks, and trust that are generated by positive relationships among people (Sergiovanni, 2000). Two potential sources of student social capital are family and school. Access to social capital is particularly important in reducing school violence. As Payne, Gottfredson, and Gottfredson (2003) state: Supportive and collaborative relationships and common norms and goals reported by teachers [are] internalized by . . . students, resulting in higher levels of student bonding. These higher bonding levels . . . lead to less delinquency. With improvements in communal school organization and student bonding, schools . . . experience a reduction in disorder. () Review the case study “Shanna’s Shirt.” Membership in clubs such as the Bible Club and Gay–Straight Alliance can be sources of social capital for students and promote student bonding. Communal school organization and student bonding are the foundations for providing school personnel, students, and visitors with the safe and secure building environment called for in ISLLC Standard 3. In this case study, communal organization and student bonds are being stressed. At least some teachers and students are supporting Shanna. Others are offended by the message. Ethan Miller is faced with a difficult choice. If he bans the shirt, some members of the school community will be unhappy. If he allows Shanna to continue to express her antihomosexual views, those members opposed to or offended by this view will be unhappy. Such is the life of a school principal. ISLLC Standard 3 Person is represented by the significance, identity, and personal value individuals derive from their community memberships (Habermas, 1987; Sergiovanni, 2000). The important point is this: Membership in various subcultures or communities creates and perpetuates the significance, identity, and personal value that all human beings crave. This is an important point. In a school community that promotes social capital, student bonding, and a sense of community, the students and the teachers derive individual value as a person from the interaction of the larger school culture and the various subcultures of which they are members (Stader, 2011). Membership in one subculture or community can conflict with that in other subcultures (Gollnick & Chinn, 2004). Membership in a community religious organization may conflict with district policy regarding the organization of a Gay–Straight Club. This conflict between school communities sometimes results in harassment, ostracism, and abuse. Such conflict is almost always at odds with good order and discipline in a school. For example, according to a recent National Center for Education Statistics report on school violence, the most common reason reported by students for bringing guns, knives, or other weapons to school is because of bullying by other students or for protection from gangs (Addington, Ruddy, Miller, Defoe, & Chandler, 2002). In schools, culture is represented by the norms, behaviors, and traditions transmitted from one generation of students and teachers to subsequent generations. School culture defines and perpetuates all student–student and student–teacher interactions on that campus. However, the normative culture of every school is slightly different, and no two school cultures even within the same district or town are exactly alike. It is the differences in individual school cultures that establish and perpetuate the normative behaviors of students, teachers, and administrators in that school. The systemsworld consists of the management designs, rules, accounting systems, and schedules that provide a framework for teachers and students to engage in the practice of teaching and learning (Sergiovanni, 2000). The systemsworld provides the enforced norms that allow schools to function in a relatively calm and orderly manner. How students are grouped, the lunch schedule, the procedures for checking out of school, and rules against fighting, bullying, and intimidation are examples of school systemsworlds. In other words, the systemsworld is represented by the policies necessary for schools to function. ISLLC Standards 3, 3A, and 3B The interrelationship between the lifeworld and the systemsworld establishes the written and unwritten rules that create and perpetuate the normative environment of the school. This relationship is symbolized in Figure 4-1. The important point is this: Both the systemsworld (policy designed to promote order) and lifeworld (the needs of people for a sense of belonging and identity) are essential to a positive school culture. When in balance, the lifeworld and systemsworld FIGURE 4-1 The lifeworld–systemsworld relationship. function cooperatively for a positive and engaging school culture. However, the systemsworld and the lifeworld are perpetually in competition for dominance of the school culture (Habermas, 1987; Sergiovanni, 2000). People and Policy: A Fight for Dominance Habermas (1987) contends that much of the controversy concerning school policy can be understood as a fight for or against the system domination (or colonization) of student lifeworlds. Habermas points to the trend toward litigation-proof policy and the overregulation of the curriculum as examples. Rather than leading to a positive school culture, this overregulation leads to depersonalization, inhibition of innovation, breakdown of responsibility, and immobility. This happens because these enforced norms are implemented without consideration of the persons concerned, or of their needs and interests. Overregulation and reliance on systems solutions (policies and rules) result in a dominant systemsworld. Domination by the systemsworld, which Sergiovanni (2000) contends is common, creates an oppressive, dysfunctional, and alienating school culture. In systems-dominated schools, the rules and procedures become a means to an end with little regard for lifeworld issues. In these schools, student lifeworlds are viewed negatively, and social order is constructed exclusively from the system perspective (Habermas, 1987). What is often overlooked in these schools is that culture, community, and person are basic needs. When these needs are not met, students turn to their own subculture, usually at odds with school purposes, in search of belonging and meaning (Schaller, 2000; Sergiovanni, 2000). In short, the failure to understand and appreciate the importance of student lifeworlds often undermines the very purpose of the policies designed to promote order. The relationship between lifeworlds and systems in the normative environment is illustrated in Table 4-1. Lifeworld Components Balanced Lifeworld and System Systems-Dominated School Culture Productive and well-ordered culture, shared goals, legitimate authority. Loss of cultural meaning, challenges to authority common, legitimacy of authority questioned. Community Positive and well-ordered student/ faculty and student/student interpersonal relationships. Lack of purpose, fractured student/ student and student/faculty interpersonal relationships. Person Sense of personal worth and belonging. Motivation to conform to written and unwritten school norms, sense of purpose, importance, and individual value gained from positive social interactions in the school. Sense of anonymity and hopelessness. Withdrawal of motivation to conform to written and unwritten school norms; individual value gained from student-generated lifeworlds. Rule compliance by coercion. *Note: Based on Habermas, J. (1987). The theory of communicative action: Vol. 2. Lifeworld and system: A critique of functionalist reason (T. McCarthy, Trans.) (pp. 142–143). Boston, MA: Beacon Press. A thin line often separates orderly and positive schools from negative and toxic schools or, at the other extreme, overly permissive school cultures. Make no mistake: There is a time for decisive action, just as there should be times for understanding, compassion, and reasonableness. The leadership challenge is determining when and under what circumstances it is appropriate to choose which action. As illustrated by ISLLC Standard 3, Ethan Miller must balance the needs of the student lifeworld with his obligation to provide a safe and efficient school facility. ISLLC Standard 3 Linking to Practice Do: Develop objective measures of the relative health of school and classroom culture. For example, student attendance, frequency of office referrals, and levels of cooperativeness of student interpersonal interactions are good measures of the relative health of school culture. Develop annual measurable objectives to improve school culture. Use research/ literature-based strategies and measurable evaluative criteria. Recognize that a balance between people and policy is necessary for a healthy school culture. Understand that student lifeworlds will exist, either supported by school policies or at cross purposes to them. Do Not: Become overly dependent on rules and policy to maintain order. A well-ordered, positive school culture results from a combination of rules and personal interactions, not from rigid rule compliance. Student Rights The legal authority of school leaders to develop, implement, and enforce rules, regulations, and policies designed to establish and maintain good order and discipline is well established. This responsibility is reflected in ISLLC Standard 3. At first glance, students may seem to enjoy a broad array of rights. However, court decisions and administrative agency interpretations of statutes typically limit many of these rights to narrow sets of circumstances. The following sections consider these rights. Student Records The Family Educational Rights and Privacy Act (FERPA) is an example of spending clause legislation designed to protect student educational records. FERPA (20 U.S.C. 1232) was enacted in 1974 by Congress in response to concerns expressed by educators, parents, students, and institutions regarding student academic and personal information. FERPA affects all public and private schools that receive federal funds. Balancing Student Privacy and School Safety: A Guide to the Family Rights and Privacy Act for Elementary and Secondary Schools is available free of charge from http://edpubs.ed.gov. This excellent guide, from which much of this information was taken, presents an overview of student privacy as defined by FERPA. Informal e-mail responses to questions about FERPA are available from the Family Policy Compliance Office. The most germane provisions of FERPA can be summarized as follows: Parents have the right to inspect and review their child’s education records, defined as all records, files, documents, and other materials related to a student and maintained by the school. All records regardless of medium including handwriting, videotape, computer files, print and so forth are subject to FERPA. This right transfers to the eligible student at 18 years of age. Parents or eligible students have the right to ask for a review of records that they believe to be inaccurate or misleading. Schools must respond promptly to such requests. A formal hearing may be requested if the school refuses to amend disputed records. Schools must have written permission from the parent or eligible student in order to release any information from a student’s educational record without consent, except: School officials with legitimate educational interest Other schools to which a student is transferring Specified officials for audit or evaluation purposes For compliance with a judicial order or subpoena Appropriate officials in cases of health and safety emergencies State and local authorities Schools must retain a written log with the educational records of each student indicating all individuals, agencies, or organizations that have requested or obtained access to a student’s educational records, including the interest that each has in obtaining the information. Directory Information FERPA permits schools to designate certain information, such as names, addresses, telephone numbers, degrees and honors received, major field of study, participation in officially recognized activities and sports, dates of attendance, and weight and height of athletic team members, as directory information. Schools are required to provide a yearly notice to parents and eligible students of any designated categories of directory information and allow a reasonable time for parents or eligible students to refuse to allow release of this information without prior consent. Once this information has been designated as directory information, the school may release this information regarding non-objecting students to any agency or requesting party. For example, schools routinely release honor roll lists, scholarship awards, and individual athletic statistics to local newspapers. Congress now requires public and private secondary schools to release to requesting military recruiters lists of the names, addresses, and telephone numbers of non-objecting students. The Supreme Court and FERPA During the 2002 term, the U.S. Supreme Court heard two FERPA cases. The first, Owasso Independent School District v. Falvo (2002), considered peer grading. The Supreme Court granted certiorari to consider only the legal question “Does peer grading violate FERPA?” The Court held that it does not (Owasso Independent School District v. Falvo, 2002). The Court reasoned that student papers being graded by another student are not at this stage maintained by the teacher and that each student grader is not a person acting for an educational institution. Gonzaga University v. Doe (2002) considered whether or not a FERPA violation by an institution creates a private right of action (i.e., the legal right to sue). The case involved a student enrolled in the teacher certification program at Gonzaga University. Washington state law required that all teacher candidates be certified by the graduating college to be of “good moral character.” A Gonzaga official, after overhearing a conversation between two students, revealed to the state agency that student Doe was suspected of sexual misconduct. Doe was denied certification by the state agency. Doe learned of the allegation, brought suit under FERPA, and was awarded $1.155 million by a jury in state court (Doe v. Gonzaga University, 2001). On review, however, the U.S. Supreme Court held that FERPA created no personal rights to enforcement. Consequently, individual students whose FERPA rights have been violated seem to have little recourse to remedy the situation (Daggett, 2002). Linking to Practice Do: Develop clear district and campus policies concerning the privacy of student records. Beware of blanket parental consent forms. These forms may be appropriate for such publications as school sports programs, band/choir memberships, or honor roll lists. However, any publication such as a school newspaper or newsletter that may reveal more personally identifiable information should have parental approval before publication. Communicate to parents, students, and teachers the importance of confidentiality, the rights of students and parents, and under what circumstances records will be shared. Clearly outline and regularly communicate to parents and students what directory information may be included in school publications. Ensure that student records are accessed only for educationally legitimate reasons. Develop a system of accurately logging requests for records and the disposition of each request. Consider separating discipline files from academic files. Both are covered by FERPA, but separate files provide another layer of protection for students. Students and the First Amendment The freedom of speech is considered so important in our society that some compelling interest must be present before that right can be suppressed. With this high standard of review, there are surprisingly few cases where courts have found that the speech rights of private citizens are not protected. For example, almost 100 years ago, Justice Holmes of the U.S. Supreme Court opined that “falsely shouting fire in a theater” is not protected speech (Schenck v. United States, 1919). Later, the U.S. Supreme Court has held that “fighting words” (Chaplinsky v. New Hampshire, 1942) and “true threats” (Watts v. United States, 1969) are not protected by the First Amendment. Most recently, the Court has held that “hate speech” (R. A. V. v. City of St. Paul, 1992) and intimidating symbols such as cross burnings (Virginia v. Black, 2003) are not protected. With these few exceptions (fighting words, true threats, hate speech, and intimidation) the First Amendment is designed to protect unpopular speech—including student. As District Court Justice Sippel states in Beussink v. Woodland Schools (1998): Indeed, it is provocative and challenging speech . . . which is most in need of the protections of the First Amendment. Popular speech is not likely to provoke censure. It is unpopular speech that invites censure. It is unpopular speech which needs the protection of the First Amendment. The First Amendment was designed for this very purpose. Establishing Student First Amendment Rights The U.S. Supreme Court first recognized student First Amendment rights in West Virginia Board of Education v. Barnette (1943). The West Virginia Board of Education required students to salute the flag while reciting the Pledge of Allegiance. After several Jehovah’s Witnesses were expelled for refusing to salute the flag, the court recognized that as a state actor public schools were bound by the Fourteenth Amendment to respect students’ First Amendment rights. However, the U.S. Supreme Court has carved out an entirely different body of First Amendment law for public school students in a series of four cases: Tinker v. Des Moines School District (1969), Bethel School District No. 403 v. Fraser (1986), Hazelwood School District v. Kuhlmeier (1988), and, most recently, Morse v. Frederick (2007). The trend toward respecting student First Amendment rights on school grounds continued in Tinker v. Des Moines School District (1969). This is the famous “black armband” case. Several students, including John and Mary Beth Tinker, planned to wear black armbands to school to protest U.S. involvement in the Viet Nam war. After hearing of these plans, principals in the district met and adopted a policy that prohibited the wearing of armbands to school. John Tinker wore his armband the next day, refused to remove the armband, and was suspended from school (Stader, 2001a). In a well-written decision containing probably the most often quoted citation in education law, Mr. Justice Fortas established the concept that it can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate . . . the constitution says that Congress (and the States) may not abridge the right to free speech. This provision means what it says. First and foremost, the Supreme Court attempted to validate the First Amendment rights of students while deliberately recognizing that students do not have the same expressive rights inside the schoolhouse gate as they do outside the gate. The Court recognized that unabridged student speech would likely result in chaos. Justice Fortas tempered student First Amendment rights as follows: [A student] may express his [or her] opinions, even on controversial subjects . . . if he [or she] does so without materially and substantially interfering with the requirements of appropriate discipline in the operation of the school and without colliding with the rights of others. But conduct by the student, in class or out of it, which for any reason—whether it stems from time, place, or type of behavior—materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech. The first prong of Tinker is the material and substantial disruption test. The decisive factor in Tinker was the lack of evidence of disruption caused by the armbands. It is certainly appropriate for students to express their opinions, and some tolerance for minor disruption to the school day seems justifiable. However, at some point it certainly might be appropriate to take action to maintain good order, discipline, and harmony. The problem, of course, is how much disruption must occur to justify taking action? It is clear that school leaders need not wait until complete chaos before acting. In addition, past evidence of unrest or disruption can often suffice as justification for suppressing student speech on school grounds. The second prong of Tinker considers the collision with the rights of others. The Tinker Court established the concept that schools should be a forum for ideas and that these ideas and expressions should not be suppressed simply because they make school officials uncomfortable. This is particularly important when students peacefully express opinions that are counter to the beliefs or views of others within the school and community. The question then becomes, who is causing the disruption? For example, controversy followed when Aaron Fricke was denied permission to bring a male date to the school prom based on widespread student and community uproar. Justice Pettine stated, in part: I have concluded that even a legitimate interest in school discipline does not outweigh a student’s right to peacefully express his views in an appropriate time, place, and manner. The First Amendment does not tolerate mob rule by unruly school children. (Fricke v. Lynch, 1980) There is little doubt that Tinker is ambiguous. For example, assume that a student takes an unpopular viewpoint that creates some controversy among community members, teachers, and some students. Schools are supposed to be forums for ideas, and these ideas are not to be suppressed simply because some individuals do not want to hear the message, right? The questions then become: (1) At what point does the controversy become “substantially disruptive,” and (2) who is causing the disruption, the student or those opposed to her views? The answer, of course, is that it depends. The fundamental protections of the First Amendment and the ambiguity of Tinker make balancing the rights of students with good order and discipline to be particularly challenging. One thing is clear: Students do have the right to express unpopular opinions; they just do not have the right to disrupt the school or invade the rights of others. Lewd or Profane Speech Student free expression rights do not extend to derogatory, disrespectful, profane, or vulgar speech. Restrictions on this type of student expression were clarified by the U.S. Supreme Court in Bethel School District No. 403 v. Fraser (1986). Student Fraser, in spite of the warnings from two of his teachers, delivered a sexually explicit nominating speech at an assembly for a fellow student running for elective school office. During his speech, Fraser repeatedly referred to his candidate “in terms of an elaborate, graphic, and explicit sexual metaphor.” Fraser was suspended from school for 3 days. Fraser and his parents, citing a violation of his First Amendment rights, sought judicial relief. On appeal, the Supreme Court ruled in favor of the district. The Court held that schools can discipline students for indecent speech and “nothing in the Constitution prohibits (schools) from insisting that certain modes of expression are inappropriate and subject to sanctions.” In Fraser, the Court established that school officials’ legitimate need to suppress lewd or vulgar speech or speech that runs counter to the educational mission of the school at school-sponsored events outweighs the First Amendment rights of students. The Court was careful to point out that the same speech off-campus would be protected. School-Sponsored Speech The extent of student freedom of expression related to curricular speech or speech that may reasonably be viewed as sanctioned by the school was defined in Hazelwood School District v. Kuhlmeier (1988). In this case, members of the school newspaper wrote two articles, one concerning divorce, the other teenage sexuality. Principal Reynolds, under pressure of time, elected to delete the articles because he was concerned that the students and parents in the articles could be easily identified. In the process, several other articles were also deleted from the paper. Students petitioned the courts that this censorship violated their First Amendment rights. In a 5–4 decision, the Court held that “educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities.” In short, school personnel control expression that could reasonably be seen as bearing the stamp of approval of the school. The Hazelwood ruling further expanded administrative control of student expression by finding schools to be a non-public forum. Lower courts have been relatively consistent in applying this standard to any student speech that could reasonably be viewed as bearing the imprimatur of the school. Speech Promoting Drug Use The most recent U.S. Supreme Court review of student speech rights at school-sponsored events was Morse v. Frederick (2007). During a school-sponsored outing to watch the Olympic Torch Relay pass through Juneau, Alaska, Joseph Frederick, a high school senior, unfurled a banner reading “Bong Hits 4 Jesus.” Principal Deborah Morse asked Joseph to take the banner down. When Joseph refused, Morse confiscated the banner and suspended Joseph. The Ninth Circuit Court held that Joseph’s speech was protected and that Morse violated Joseph’s free speech rights by confiscating the banner and punishing Joseph. On review, the U.S. Supreme Court held that school authorities may “restrict student speech at a school event, when that speech is reasonably viewed as promoting illegal drug use.” It is important to note that the court refused to go any further and allow the restriction of any speech on school grounds that could plausibly be interpreted as commenting on a political or social issue. In his concurring opinion, Justice Alito (joined by Justice Kennedy) clearly stated that he joined the opinion of court on the understanding that (1) it goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (2) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue such as speech about “the wisdom of the war on drugs or of legalizing marijuana for medicinal use.” This type of speech would be protected. It is also clear that Frederick’s banner is protected speech outside school. Hate Speech Hate speech is a common problem on many campuses, regardless of location. In 2007, 10% of students ages 12 to 18 reported that someone at school had used hate-related words against them, and 35% reported seeing hate-related graffiti at school during the school year (Robers, Zhang, & Truman, 2010). Hate speech is not protected speech, and school leaders have little difficulty justifying disciplinary action. Some speech and symbols are easy to identity as hate speech and generally acknowledged as unacceptable at school. Other speech and symbols, such as the Confederate flag, may be more difficult. However, courts have been supportive of school rules banning the Confederate flag and other symbols from school grounds and school-sponsored activities when school leaders can show that similar symbols in the past have resulted in disruption (see, for example, B. W. A. v. Farmington R-7 School District, 2009; Barr v. Lafon, 2008; Defoe v. Spiva, 2010; Scott v. School Board of Alachua County, 2003; West v. Derby Unified School District No. 260, 2000, cert. denied). Although courts have virtually unanimously supported bans on Confederate flags and other similar symbols when districts can reasonably forecast disruption, antihomosexual speech as hate speech that invades the rights of sexual-minority and questioning youth is an area of law that continues to emerge. For example, the Ninth Circuit used social science research to support a Poway School District ban on a T-shirt that read “Homosexuality is Shameful. Romans 1:27” (Harper v. Poway, 2006; note that this ruling was later vacated as moot by the U.S. Supreme Court, 2007). Student Harper wore the shirt after a student-led Day of Silence activity in support of sexual-minority youth in the school. The court reasoned that the language of the shirt was especially hurtful to sexual-minority and questioning youth. Consequently the message violated the second prong of Tinker by colliding with the rights of others in the school. However, in a similar set of circumstances, the Seventh Circuit Court of Appeals used comparable research and logic to conclude that a “Be Happy, Not Gay” message was not “fighting words,” did not create material and substantial disruption, and did not collide with the rights of sexual-minority and questioning youth in the school. The court concluded that there is no legal right to prevent criticism or “hurt feelings” defense (Nuxoll v. Indian Prairie School District, 2011). Regardless of the circumstances and/or place of student speech, courts always use the principles that have been set forth on speech in general (fighting words, true threat, hate speech, and intimidation) and the special circumstances of schools (Tinker, Fraser, Hazelwood, and Morse) to reach a decision. Courts consider the amount of the disruption caused by the speech, the content of the speech (lewd or profane or promoting drug use), whether or not the speech is school sponsored, and whether or not any restrictions on speech are viewpoint neutral. Review the case study “Shanna’s Shirt” again. The message on her shirt is not a threat, is not lewd or profane, at least according to the Seventh Circuit is not fighting words, cannot reasonably be viewed as promoting illegal drug use, and one can assume the message is not school-sponsored speech. Therefore, Tinker applies, right? Now, think about the two prongs of Tinker, “material and substantial disruption” and “collides with the rights of others.” Has enough disruption occurred? Does the message collide with the rights of others? As pointed out, courts are divided on whether or not antihomosexual speech collides with the rights of sexual-minority or questioning youth and their supporters. Some general guidelines exist, but significant areas of ambiguity also exist. Student Dress As of 2008, 22 states authorized schools and districts to implement dress code and/or uniform policies (Colasanti, 2008a). The U.S. Supreme Court has not ruled on a dress code case and, in spite of several opportunities, seems at this point unlikely to do so. However, since the mid-1980s, and particularly in the wake of the school violence outbreak in 1999, lower courts have consistently empowered school administrators to exercise a great degree of control over student dress (DeMitchell, Fossey, & Cobb, 2000). Unless specifically prohibited by state law (Massachusetts, for example, prohibits dress codes except for health and safety reasons), it can be assumed that school districts may adopt reasonable and viewpoint-neutral student dress codes. For example, the Sixth Circuit Court recently indicated that three criteria were critical in determining the legality of school dress code policies: (1) a higher level of scrutiny is appropriate only for viewpoint-specific cases, (2) school officials have greater discretion in prohibiting obscene, vulgar, and/or disruptive clothing, and (3) even more discretion is allowed if the speech or dress can be considered school sponsored (Castorina v. Madison County School Board, 2001; also see Blau v. Fort Thomas, 2005, for similar logic). Controversial dress usually involves symbolic expression such as choice and style of wearing apparel or T-shirt messages. Unfortunately, guiding case law is significantly intertwined and does not provide clear guidance. Courts have supported bans on “sagging pants” (Bivens v. Albuquerque Public Schools, 1995), the wearing of “Drugs Suck” T-shirts (Broussard v. School Board of City of Norfolk, 1992), and the banning of Marilyn Manson T-shirts (Boroff v. Van Wert City Board of Education, 2000). Clothing or symbols linked to gang membership can usually be banned when the district can demonstrate a gang problem or when the dress or symbol can be linked with disruptive behavior (Chalifoux v. New Cancy Independent School District, 1997; Jeglin v. San Jacinto Unified School District, 1993). Other courts have supported student rights. The Western District Court of Oklahoma, in recognizing that the banning of wearing apparel advertising alcoholic beverages was not unconstitutional, held that a school district ban on apparel with alcohol symbols did not apply to a senior class T-shirt that read, “The Best of the Night’s Adventures are Reserved for People With Nothing Planned.” This slogan was for Bacardi rum (McIntire v. Bethel School District, 1992). In another example of supporting student rights, the Third Circuit Court held that a Jeff Foxworthy T-shirt did not violate a “racial harassment policy” established in response to a history of racial disturbances at a high school (Sypniewski v. Warren Hills Regional Board of Education, 2002). A similar line of reasoning was applied by the Eastern District Court of Michigan to a T-shirt with a message critical of President George W. Bush. Using Tinker v. Des Moines (1969), the court held that the banning of the shirt based on an unsubstantiated fear that a minority viewpoint may create opposition does not justify a preemptive ban on a clearly political message (Barber v. Dearborn, 2003). Following the same logic of lack of evidence of disruption, the District Court of Minnesota ordered an injunction barring a school principal from banning a “straight pride” sweatshirt in a Minnesota high school. The court refused to state that such a message could not be legally banned. But, absent any evidence that the decision was based on a reasonable belief of disruption other than a few complaints from students, the court had no option but to issue the injunction (Chambers v. Babbitt, 2001). The concept of school uniforms has also gained acceptance and judicial support. Numerous states allow districts to implement school uniform policies, but no state requires that districts do so (Colasanti, 2008a). Proponents believe school uniforms (1) decrease violence, (2) prevent gang-related attire, (3) instill discipline, (4) help students concentrate, and (5) aid in the recognition of intruders. Regardless of the efficacy of these benefits to schools, courts have consistently supported school uniform policies. For example, a district court in Texas concluded that choice of clothing in school is not protected by the First Amendment (Littlefield v. Forney Independent School District, 2000). In a similar decision, the Fifth Circuit Court concluded that school boards, not the federal courts, have the authority to decide what constitutes appropriate dress in schools (Canady v. Bossier Parish School Board, 2001). Linking to Practice Do: Create opportunities for open discussion with parents, community members, teachers, and students regarding appropriate school attire. Honor diverse views. Beware of viewpoint discrimination. Maintain accurate records documenting disruption created by various symbols. These records may be invaluable in justifying decisions to ban certain expressive items. Develop policies that address clothing items with symbols that are profane, vulgar, sexually suggestive, or advocate alcohol, tobacco, and other drug use. These policies are almost always defensible. Consider dress code and uniform policies as part of a comprehensive plan to promote a safe, orderly, and positive school culture. Understand that dress code and uniform policies are not “silver bullets” to solve all school discipline and safety concerns. Objectively evaluate the effectiveness of dress code and uniform policies. Beware of dress code and uniform policies that can become troublesome enough (significant enforcement time, student time out of class, disagreements among faculty, and parent dissatisfaction, to name a few) to outweigh the potential or actual benefit gained from having the policy in the first place. Do Not: Overreact. Suppress the peaceful expression of minority viewpoints simply because some individuals do not wish to hear the message. Wait for complete chaos before banning disruptive speech. Library Books The U.S. Supreme Court considered the balance between the authority of a school board to determine the content and subject matter of books in a school library and the First Amendment rights of students in Board of Education v. Pico (1982). In 1975, Three Island Trees School District sought removal from the high school library of several books that a politically conservative organization had determined to be objectionable. The board appointed a review committee. The committee recommended returning several of the books, placing a few on restricted shelves, and removing two from the library. The board voted to remove all but one book. The U.S. Supreme Court upheld the challenge to the board action by declaring, Local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books and seek by their removal to prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion. Using Pico as a guide, an Arkansas federal district court reached a similar decision in Counts v. Cedarville School District (2003). The district board had voted to restrict students’ access to the Harry Potter books. The court ordered the return of the books to the unrestricted section of the library on the grounds that the restrictions violated students’ First Amendment rights to read and receive information. The court noted that school boards do have considerable discretion in the operation of the school district. However, the school board is still bound by the Bill of Rights. Threats In light of recent acts of school violence, statements or writings that could once be passed off as adolescent braggadocio must be taken seriously (Stader, 2000). The U.S. Supreme Court has established that a threat that is not true is protected speech (Watts v. U.S., 1969). The Court later defined true threats in Virginia v. Black (2003) as follows: “True threats encompass those statements where the speaker means to communicate a serious expression of intent to commit an act of unlawful violence to a particular individual or group of individuals.” The most common approach taken by the courts is based on the vantage point of the speaker and/or the vantage point of the recipient (Hyman, 2006). In student threat cases, courts use the “reasonable person” standard. For the speaker’s vantage point, if a reasonable person could foresee that his or her words could be taken as a threat, then it is a threat. For the recipient’s vantage point, if a reasonable person could perceive the statement as a threat, then it is a threat. Let us take a brief look at two cases that illustrate these two vantage points. A good example of the vantage point of the speaker may be Lovell v. Poway Unified School District (1996). At the end of a long day, in an effort to change her schedule, student Lovell (then 15) arrived before the school counselor. The counselor informed Lovell that the classes she had finally arranged were overloaded and refused to change Lovell’s schedule. At this point Lovell either said, “I’m so angry, I could just shoot someone” (Lovell’s version) or, “If you don’t give me this schedule change, I’m going to shoot you” (counselor’s version). Both parties agree that Lovell immediately apologized, and the counselor made the schedule changes. In upholding the suspension of Lovell, the court reasoned that the central issue is not whether the student actually meant what he or she said; rather, the entire factual context, including the reaction of listeners, must be considered. Basically, the result turns on whether a reasonable person under the circumstances should have foreseen that her words would appear threatening. In a rare en banc review using the vantage point of the recipient, the Eighth Circuit Court supported the expulsion of a middle school student (Doe) for writing a threatening letter at home describing the rape, sodomy, and murder of his ex-girlfriend. The letter remained at home and was allegedly not meant to become public. When a third party delivered the letter to the girl, she became frightened, went home early from school, and slept with the lights on for several nights. Doe was expelled for the remainder of his eighth-grade year. The trial court concluded that the letter was not a “true threat” and ordered Doe reinstated. On appeal, a divided panel of the Eighth Circuit Court affirmed the district court’s decision. On further review, this ruling was vacated and the entire Eighth Circuit Court conducted an en banc rehearing. Citing the Lovell reasonable person standard, the court concluded that based on the tone of the letter, they were not surprised that those who read it interpreted it as a threat. Considering the facts and the reaction of the girlfriend, the court upheld the expulsion of Doe (Doe v. Pulaski County Special School District, 2002). The important point is that the reaction of the recipient clearly established that the letter was perceived as a true threat. As Stader (2011) writes, “In reality, it is the reaction of the participants and the impact of the statement on others that is important. If it sounds like a threat, if the speaker appears threatening, or if others react as if a threat has been made, then it is a threat” (p. 145). A general decision-making guide is presented in Figure 4-2. Threat Assessment Regardless of the circumstances, even frivolous threats can create considerable apprehension among students, teachers, and parents. The stakes are high. Failure to properly remove a student who is a true danger from the school setting is a recipe for disaster on several fronts. Yet depriving a student of a public education when he or she is guilty of nothing more than poor judgment creates several legal and ethical dilemmas. A proper decision is often difficult. However, a threat assessment policy can provide guidance (Fein et al., 2004). Threat assessment starts with determining whether or not a true threat has been made. If, for example, a reasonable person would not view the action as a threat, this model recommends contacting parents to explain the situation. Some disciplinary action may be warranted to address the behavior. If, on the other hand, a reasonable person and the reaction of others indicate a potential threat, then contacting parents is mandatory. Short-term or emergency suspension or expulsion should be considered. At this point, Fein et al. (2004) and Stader (2000, 2001a) recommend that the student (or students) be referred to local law enforcement and to a local counseling or mental health agency with experience working with students of a similar age. At the same time that these agencies are making their independent assessments, this model recommends an internal school-based assessment that gathers as many facts as possible. The evidence and assessments of law enforcement and mental health professionals, and the facts and information gathered by school personnel, should be objectively considered to support either further suspension or expulsion or a return to school. The central question of a threat assessment is whether a student poses a threat, not whether the student made a threat. Threats should never be taken lightly. However, all threats may not be created equal. In a case illustrative of this approach, the Ninth Circuit Court held the emergency suspension of Washington high school student Bruce LaVine to be sufficiently justified (LaVine v. Blaine School District, 2001). Bruce wrote a poem describing scenes of FIGURE 4-2 Responding to threats. violence in his high school. His mother warned him not to take the poem to school, fearing overreaction on the part of teachers and administrators. Bruce did not follow his mother’s advice, and on a Friday he submitted the poem to his English teacher for her comments. When his teacher read the poem that evening, she decided to contact school officials. The principal decided to invoke a provision of Washington state law providing for emergency expulsions. The principal informed Bruce and his parents of the expulsion on Monday morning. Both Bruce and his father became angry, belligerent, and profane. After Bruce was expelled, his parents hired an attorney, who immediately began communicating with the school district’s attorney. After several conversations, it was agreed that Bruce should be evaluated by a psychiatrist at school district expense. After meeting on several occasions with Bruce, the psychiatrist recommended that he return to school. The expulsion was shortly rescinded, and Bruce returned to school. On judicial review, the Ninth Circuit Court concluded: We must take care when evaluating a student’s First Amendment right . . . against school officials’ need to provide a safe school . . . not to overreact in favor of either. Schools must be safe, but they are educational institutions after all, and speech—including creative writing and poetry—is an essential part of the educational fabric. Although this is a close case in retrospect, we conclude that when the school officials expelled Bruce LaVine they acted with sufficient justification . . . not to punish Bruce for the content of the poem, but to avert perceived potential harm. (LaVine v. Blaine School District, 2001) Threat assessment is difficult, but a necessary application of balancing school safety with the legal rights of students. For example, the school officials in LaVine v. Blaine School District (2001) prevailed primarily because they used a sensible and defensible approach to the poetry of Bruce LaVine. Linking to Practice Do: Understand the balance between people and policy to promote a cooperative, supportive school culture where students feel comfortable confiding in at least one adult in the school. In almost all cases of actual violence, other students knew or had information regarding the attack but failed to confide in a responsible adult (Fein et al., 2004). Use the “reasonable person” standard to define threat. Violence stems from an interaction among the person, the situation, the setting, and the target (Fein et al., 2004). Use the reactions of others as a predictor of the likelihood of disruption. Consult outside professionals. Violence is the end result of an understandable, and oftentimes discernible, process of thinking and behavior (Fein et al., 2004). Most educators are not qualified to make this assessment. Develop positive working relationships with qualified mental health professionals willing to provide such assessments of K–12 students. Develop positive working relationships with law enforcement. Trained law enforcement officers are often excellent judges of behaviors, ways of thinking, and access to weapons and can be invaluable in making threat assessments (Stader, 2000, 2001a). Involve parents or guardians in a cooperative relationship with the best interest of their child and the school as the desired outcome of any threat assessment process. Insist that parents or guardians give written permission for a sharing of information among school, law enforcement, and mental health professionals. School districts should provide training for at least one person to serve as a “threat assessor” for the district. Do Not: Overreact. Not every adolescent utterance, poem, or drawing is a precursor to school violence. Fail to follow school board policy and state law. Student Off-Campus Speech Student speech off campus receives more protection than student speech on campus (Hyman, 2006). As Justice Brennan (citing Cohen v. California, 1971) cautioned in Fraser, just because profane speech can be banned on campus does not mean that the same speech conducted off-campus is subject to censorship by school authorities. For example, a federal district court held that school officials lack authority to punish a student for conduct that does not occur on school grounds or during the school day when the district cannot establish that the conduct would adversely affect the orderly operation of the school (Smith v. Klein, 1986). Underground newspapers created off-campus have similar protections (see Thomas v. Board, 1979, for example). However, if the publication can be linked to substantial disruption in the school, then it could be banned. The Seventh Circuit Court took this approach when a Wisconsin school district expelled Justin Boucher for 1 year after Justin wrote an article in an unofficial school newspaper distributed on campus describing how to “hack” school computers (Boucher v. School Board, 1998). The article, according to school officials, provided instruction on unauthorized access to the school district computers. Boucher argued that his speech was created off-campus and was innocuous. The Seventh Circuit Court was not impressed by these arguments, finding that school officials had legitimate concerns over disruption. The court upheld Boucher’s 1-year expulsion. The Second Circuit Court recently upheld the banning of an independent student newspaper being distributed on campus containing a sexually explicit cartoon. The school newspaper sponsor had earlier banned the cartoon from the official school paper. The court, citing Bethel v. Fraser (1986), concluded that the cartoon was “unquestionably lewd” and therefore banning the distribution of the newspaper on campus did not offend the First Amendment (R. O. v. Ithaca, 2011). Student Internet Speech Speech on the Internet is entitled to the same First Amendment protections as other speech (Reno v. ACLU, 1997). Not only has the proliferation of the Internet in schools and homes empowered students and citizens to freely access information, it has also created an unfettered and uncensored forum for expression. Expression that was at one time limited to relatively small groups of people can now be almost instantaneously and indiscriminately broadcast worldwide. Although this power holds great potential, it also holds particular challenges for school leaders when students use the Internet to engage in controversial speech. Justice Cappy succinctly captured the challenge the Internet creates for school leaders: “Tinker’s simple armband, worn silently and brought in to a Des Moines, Iowa classroom, has been replaced by [a] complex multi-media website, accessible to fellow students, teachers, and the world” (J. S. v. Bethlehem Area School District, 2002). This challenge is compounded by the emergence of communication technologies such as Twitter, Facebook, and MySpace that make access to student comments almost instantaneous anywhere, including school hallways, lunch rooms, playgrounds, and classrooms. Unfortunately, the U.S. Supreme Court has not ruled on a student online speech case, and lower courts have been inconsistent. Consequently, student off-campus online speech cases are usually decided along two lines of reasoning: (1) true threats (serious expression of intent to commit violence) are not protected speech, or (2) the material and substantial disruption standard of Tinker apply. In other words, simply disliking the message or fearing disruption is not enough to trump student off-campus speech rights. Thus, school authorities must either demonstrate that the off-campus communication is a true threat, or show a direct link between the off-campus speech and substantial disruption at school (Graca & Stader, 2007). Regardless of the off-campus communicative medium, courts usually start with a threat analysis. If the speech can be considered a threat, the court usually stops the inquiry and supports banning the speech and whatever punishment the school district elects to apply. For example, the United States Northern District Court of New York supported the one-semester suspension of Aaron Wisniewski for posting on the Internet a threat to kill one of his teachers (Wisniewski v. Board of Education, 2006). The posting included an icon depicting a gun pointing to a head, a bullet leaving the gun, and blood splattering from the head. The message was “Kill Mr. VanderMolen.” The court had little trouble recognizing the message as a true threat. Similarly, a high school student sent several instant messages to a classmate threatening to get a gun and kill everyone he hated, then kill himself. The student receiving the messages forwarded the messages to school administrators. The student sending the messages was suspended. The federal court had little difficulty determining that the message constituted a true threat (Mardis v. Hannibal School District, 2010). If the message is not considered a true threat, courts generally turn to the substantial disruption prong of Tinker. Numerous examples are available. The Supreme Court of Pennsylvania upheld the expulsion of an eighth-grade student who created a website titled Teacher Sux (J. S. v. Bethlehem Area School District, 2002). The website, developed at the student’s home, consisted of several pages that made derogatory comments about the student’s math teacher and his principal. The website solicited $20 contributions for a “hit man,” and contained a picture of the math teacher with a severed head dripping with blood, and her picture morphing into Adolf Hitler. The math teacher reported fear, short-term memory loss, an inability to mingle with crowds, and headaches, and she was required to take anti-anxiety medication. She was unable to continue in her position, forcing the school to hire a variety of substitute teachers with sometimes less than stellar results. On judicial review, the Pennsylvania Commonwealth Court concluded that, though it was offensive, the website was simply a “sophomoric . . . highly offensive and misguided attempt at humor.” Consequently, the website created by J. S. did not rise to the level of a true threat and was protected by the First Amendment. The court next considered the impact of the website on the school. Given the effect the website had on the math teacher, student learning, and school morale, the school district was within its rights to expel the offending student. Not all off-campus speech results in disruption. Joshua Mahaffey was referred for expulsion from Waterford Kettering (Michigan) High School for contributing to a website entitled Satan’s web page (Mahaffey v. Aldrich, 2002). As part of his contribution to the web page, Joshua listed “People I wish would die” as well as “People that are cool.” A parent notified the local police about the website. The police then notified school authorities. School authorities notified Joshua that he was being recommended for expulsion from Waterford School District. On judicial review, the district court concluded that a reasonable person in Joshua’s place would not foresee that the statements on the website would be interpreted as threatening harm to anyone. Simply stated, Joshua’s list of “people I wish would die” did not constitute a threat any more than his list of “people who are cool” made them more attractive. In a similar case, the Western District Court of Washington prohibited Kent School District from enforcing an emergency expulsion for intimidation, harassment, and disruption to the educational process against Nick Emmett after he created “mock obituaries” of some of his friends (Emmett v. Kent School District, 2000). Messages Critical of School Policy or Individuals Students have been critical of teachers, administrators, and school policy since the first public school was made available. Fortunately for everyone involved, these critical messages remained off-campus. Technology has changed this. Evaluating messages critical of school policy, parodies of school personnel, and so forth follows the same general format of determining whether the message is a true threat, and if not, whether the message created material and substantial disruption and/or interfered with good order and discipline. For example, Zachariah Paul compiled a “Top Ten” list about the school athletic director and track coach on his home computer containing rather sophomoric derogatory comments about the athletic director’s weight, the size of his genitals, and his lack of success with women. Paul was suspended by the principal for 10 days for “verbal/written abuse of a staff member.” The Western District Court for Pennsylvania held that the failure to demonstrate substantial disruption violated Paul’s First Amendment rights under Tinker. The court pointed out that the speech was not threatening and, unlike J. S. v. Bethlehem, did not cause anyone to take leave (Killion v. Franklin, 2001). In a similar case, the Eastern District Court in Missouri held that “disliking or being upset” by the content of a student’s Internet speech created off-campus is not an acceptable justification for limiting student speech under Tinker (Beussink v. Woodland R-IV School District, 1998). Not all critical messages are protected. As junior class secretary and a member of student council, Avery Doninger was responsible for coordinating “Jamfest” (Doninger v. Niehoff, 2008). In response to multiple postponements of “Jamfest,” Doninger and three other students sent e-mails to school district patrons. After a confrontation with Principal Niehoff over the e-mails, Avery created that evening a post on an Internet weblog that lamented the school’s decision to not allow Jamfest to occur as scheduled, referred to the principal as a “douchebag” and solicited assistance from the community. Some community members did in fact contact the principal and/or superintendent. Not surprisingly, when the principal learned of the post, she took disciplinary action against Doninger, prohibiting the student’s involvement in a number of cocurricular/extracurricular activities. Seemingly offended by the language of the posting, a Second Circuit panel determined that “the language with which Avery chose to encourage others to contact the administration was not only plainly offensive, but also potentially disruptive of efforts to resolve the ongoing controversy.” As a result of the controversy surrounding Jamfest, Doninger was prohibited by the principal from running for senior class secretary because of her off-campus postings. Doninger and other students were also prohibited from wearing “Team Avery” shirts to a school assembly where senior class officer candidates presented their speeches. On review, the Second Circuit Court considered two legal questions: Did the district violate Doninger’s First Amendment rights by (1) preventing her from running for senior class secretary, and (2) prohibiting her from wearing a homemade printed shirt at a school assembly? The Court found that the district did not violate Doninger’s First Amendment rights by prohibiting her from running for Senior Class secretary. The district did violate Doninger’s right to wear the homemade shirt. However, the court held that this right was not clearly established and granted qualified immunity to the district. The court opined that qualified immunity protects school leaders when they make reasonable mistakes about the reasonableness of their actions. In this case, Principal Niehoff had a legitimate concern that the shirt would create disruption (Doninger v. Niehoff, 2011). Similarly, a U.S. district court in Washington state found that the posting of a video of a teacher on the Internet after secretly filming her during class was not protected speech. The court held that the filming of a student making “rabbit ears” and pelvic thrusts behind the teacher constituted a material and substantial disruption (Requa v. Kent School District, 2007). Fake MySpace and Similar Social Networking Sites The issue of students creating fake MySpace or similar social networking sites of teachers and school leaders seems to becoming more common. Unless the fake social networking site creates material or substantial disruption or is a true threat, school officials have not been overly successful in punishing the creator of the sites. In Draker v. Schreiber (2008), a Texas high school assistant principal unsuccessfully sued two students for defamation based on their creation of an offensive online profile impersonation on MySpace. This case demonstrates the difficulty school officials may have in establishing a successful defamation suit against students who create fake social networking sites (Brady, 2010). In A. B. v. State (2007), the Indiana Court of Appeals held that a student’s fake MySpace profile of the student’s former middle school principal was protected political speech. Sitting en banc, the Third Circuit Court of Appeals considered two fake MySpace profiles of school principals created off-campus. In Layshock v. Hermitage (2011), a student set up a parody profile of his principal on MySpace. Once the district learned of the profile, Justin Layshock was referred to the Alternative School, was banned from all extracurricular activities, and was not allowed to participate in his graduation ceremony. The Layshocks were also informed that the district was considering expelling Justin. The Court concluded that “a sufficient nexus between Justin’s speech and a substantial disruption of the school environment” was not present. The school district did not dispute the court’s holding that its punishment of Justin was not appropriate under Tinker. Rather, the school district argued that Justin’s speech was “unquestionably vulgar, lewd and offensive, and therefore not shielded by the First Amendment.” The Third Circuit Court of Appeals rejected this argument: “Fraser does not allow the School District to punish Justin for expressive conduct which occurred outside of the school context.” In the second case, eighth-grader J. S. created a MySpace profile making fun of her middle school principal. The profile contained adult language and sexually explicit content (Synder v. Blue Mountain, 2011). For example, the profile included references to sexual activity in the principal’s office and hitting on students and their parents, and it made derogatory comments about the principal’s son and wife. J. S. was suspended from school for 10 days by the middle school principal. Though the profile was disturbing, the record indicated that it did not cause a substantial disruption in the school. The court stated, “If anything, (Principal’s) response to the profile exacerbated rather than contained the disruption in the school.” In addition, “Neither the Supreme Court nor this Court has ever allowed schools to punish students for off-campus speech that is not school sponsored or at a school-sponsored event and that cause not substantial disruption at school.” However, several justices dissented. The dissenting justices were concerned that the majority had left schools defenseless to protect teachers and school officials against personal, vulgar, and obscene attacks and to discipline students for these acts. As these and other student Internet First Amendment cases illustrate, a very fine line exists between the authority of school leaders to punish students for off-campus parodies and non-threatening messages and students’ First Amendment rights to freedom of expression. The law governing student speech is difficult and confusing even for judges. Student off-campus speech has the same protections as any citizen. As the Justices in Doninger, Synder, and Layshock make clear, school district authority to punish students for their off-campus expression is generally limited to those cases were a clear nexus between the speech and material and substantial disruption to good order and discipline inside the schoolhouse gates exists. Linking to Practice Do: Communicate to students, teachers, and parents that Internet speech created off-campus that substantially disrupts the school may be subject to disciplinary action including expulsion. Remember that student speech created off-campus enjoys a higher level of protection than on-campus speech. Off-campus speech that is uncomfortable, embarrassing, or unpleasant may not rise to the level of substantial disruption. Establish that the speech is a true threat or a clear nexus between the off-campus speech and “material and substantial” disruption to the school before taking disciplinary action. In cases where the school district prevailed in suppressing student off-campus Internet speech, this nexus was clear. Students prevailed when this nexus was not established. Student-created fake online profiles should be reported immediately to the social networking vendor. These vendors are increasingly responsive to concerns about safety, abuse, and defamation (Brady, 2010). Update Internet Acceptable Use policies to include issues and language unique to social networking including online profile impersonation and defamation (Brady, 2010). Spend more time educating and training students and parents on the responsible use of social networking technology (Brady, 2010). Do Not: Overreact. Simply calling or meeting with the parents of the offending student and asking for their help may be all that is necessary. Wait until total chaos erupts before taking action. For example, the Pennsylvania court used the school district’s delay in punishing J. S. as one rationale for determining that J. S.’s website was not a true threat (J. S. v. Bethlehem School District, 2002). Attempt to discipline students with a policy that is vague or overbroad. Fail to carefully follow school district due process policy. Focus exclusively on punishment policies or restrict student online speech and expression (Brady, 2010). Summary Students often wish to express their desire for independence from parental and school authority in a variety of ways, including choices of dress, language, and symbols. However, this naturally occurring desire for expressive freedom can collide with the need to maintain order and discipline in the school. Legal guidelines can be ambiguous, and finding the right balance among student rights, a positive school environment, and the obligation for order and discipline can be difficult. The interaction of the systemsworld and lifeworld determines the normative environment of the school. However, the systemsworld and the lifeworld continuously vie for dominance, creating a tension between freedom and order. The proper balance is required for a well-ordered and positive school culture. However, in many schools the systemsworld dominates student lifeworlds, resulting in loss of significance, alienation, and hopelessness. Consequently, decisions involving student expression should be made with great care. Connecting Standards to Practice Stupid Cupid As the former principal of Riverboat High School, Sharon Grey was well aware of the “Unofficial Riverboat High School Newspaper” website. The motto of the website was “All the news your official RHS newspaper can’t or won’t print.” True to the motto, the website had published several controversial articles lampooning Homecoming and school district dress code policies. Consequently, Sharon was not overly surprised when new Riverboat principal Tara Hills asked for an appointment to seek her advice on an “Unofficial Newspaper” problem. Tara had spoken with the editors. They had agreed that some comments were a little out of line and promised to more carefully edit the website. However, several teachers were beginning to openly criticize Tara for not punishing the student editors and those responsible for contributing to the online newspaper. The criticism intensified with the latest editorial. Written under the byline Stupid Cupid and entitled “Love Makes Butt Faces Out of Two Riverboat Teachers,” the editorial focused on rumors of an extramarital love affair between Kaycee Morning and Coach Nathan Lawrence. The editorial presented detailed allegations of liaisons between the two teachers, including one in a school office while Coach Lawrence was supposedly at basketball practice. The editorial also detailed an alleged altercation between Coach Lawrence’s wife and Kaycee Morning at a local tavern. Sharon wondered how the editorial writers could possibly have that much detail. Naturally, both Kaycee and Nathan were not happy about the editorial. Kaycee and Nathan had enlisted several teachers in their efforts to increase the pressure on Tara to punish the editorial writers. Kaycee and Nathan complained that the editorial was disrespectful of their authority as teachers, causing problems in their classes, and problems with their spouses. Question Argue for or against punishing the editors of the newspaper. Clarify the legal question. Cite ISLLC standards, legal guidelines governing student speech, and ethical principles (discourse ethics, lifeworlds, and systemsworlds) that we have read about so far to support your answer. Write a memo to the superintendent or board of education president justifying your decision.
Dress CodeState law does not give students the right to choose their mode of dress. Thus, the matter of student dress and grooming is at the discretion of local school districts. A common question rem
Chapter 5 Due Process, Student Discipline, Athletics, and Title IX Introduction Administrators are empowered by a wide variety of federal, state, and local laws and policies to maintain orderly and safe schools. However, students do not forfeit all of their constitutional rights. This is especially true when students are off-campus. For many secondary school leaders, extracurricular activities, especially athletics, are also an important responsibility. Title IX is designed to protect students from being denied the benefits of any educational program or activity, including athletics, because of sex. Basic fairness and a healthy respect for these rights is part of being an ethical and humane school leader. This chapter considers the balance between the obligation to maintain order and safety while respecting the rights of students. The Justice as Fairness principles of the American political philosopher John Rawls, the due process rights of students, corporal punishment, excessive force, and extracurricular activities are presented here. Focus Questions What is a “well-ordered” school, and how is this concept related to due process and student discipline? Can, and should, students be disciplined for off-campus behavior? Is consistency in student discipline always rational? Should schools use corporal punishment to control student behavior? What standards should courts use when reviewing charges of excessive force during corporal punishment? Key Terms Corporal punishment Due process Liberty interest Procedural due process Property interest Shocks the conscience Substantive due process Title IX Well-ordered school Case Study The Case of the Powdered Aspirin As principal of Medford Elementary School, Charlene Daniels was quite concerned about the rumors that several students had been bringing powdered aspirin to school and “huffing” the powder in the restroom after lunch and after recess. At the last faculty meeting, Charlene had discussed her concerns with the faculty and asked them to be more vigilant than usual as students left the cafeteria and returned from recess. It was this vigilance that led sixth-grade teacher Ralph Smith to her office. “Ms. Daniels, I just saw sixth-grader Lasiandra Davis go into the girls’ restroom next to the cafeteria. I just caught a glimpse, but I am sure I saw a brown paper bag in her hand. I could not follow her into the restroom, but I sent Mrs. Hale to go check.” Mrs. Hale came out of the restroom just as Charlene and Ralph arrived holding a brown paper bag covered with a white powdery substance. “I found this in the trash can under some papers. When I arrived Lasiandra Davis was the only one in the restroom. She saw me searching the trash can and left the restroom before I could stop her.” Charlene immediately placed the brown bag with the white substance in a plastic container, called the police, and started her own investigation. The investigation lasted all afternoon, interrupted several classes, and caused several students to miss significant time in the classroom. All five of the sixth-grade teachers spent considerable time talking to their students trying to get more information. By the end of the day, Charlene was fairly convinced that Lasiandra had indeed been in possession of the paper bag. She based her conclusions on a couple of students’ testimony that they had seen Lasiandra with a paper bag right before lunch, Lasiandra’s teacher’s observation that Lasiandra had seem “agitated” after lunch the past several days, and Mr. Smith’s belief that he had seen Lasiandra take a brown paper bag into the restroom. Charlene called Lasiandra to the office and confronted her with the allegations. Lasiandra denied that she had brought powdered aspirin to school. She said that she was not in possession of a paper bag after lunch as Mr. Smith had said, and that she knew nothing about the bag found in the trash. Charlene informed Lasiandra that she was suspending her for 5 days for “disturbing instruction.” She based this finding on the fact that all sixth-grade classes had been disrupted, that all five of the sixth-grade teachers had participated in the investigation rather than teach their classes, and that she as principal spent all afternoon investigating the incident. Lasiandra’s mother and father were not happy with Charlene’s decision. Both parents had called Superintendent Johanson. Charlene’s parents and the superintendent had agreed to meet the next day to appeal the suspension. Leadership Perspectives A reasonably orderly school promotes and protects the welfare and safety of students and staff and provides the foundation for a safe and effective school environment (ISLLC Standards 3 & 3C). A reasonably orderly building environment also promotes social justice, equity, and accountability as called for in ISLLC Standard 5E. However, not all orderly schools are good schools. Not all orderly classrooms promote efficient and effective learning (ISLLC Standard 3). As in a maximum-security prison, order in schools and classrooms can be obtained by rigid rules and punishment. As discussed in the previous chapter, schools and classrooms that achieve order in these ways often create a hostile, alienating, and toxic environment that is not conducive to the types of teaching and learning for which “good” schools are noted (Skiba & Peterson, 2000). There is little question, however, that effective schools and classrooms must have a system of enforced rules in place to provide the foundations for orderly and safe school cultures that promote learning. Unfortunately, a very fine line sometimes exists between maintaining order and creating overly punitive school cultures. ISLLC Standards 3 & 3C ISLLC Standard 5E ISLLC Standard 3 The opening case study “The Case of the Powdered Aspirin” illustrates this. ISLLC Standard 2A calls for school leaders to develop and sustain a culture of collaboration and trust. Principal Daniels has exemplified this standard by enlisting faculty in support of her efforts to maintain a substance-free environment. There is no question that students bringing powdered aspirin to school and “huffing” it is a significant school safety and student health concern. Principal Daniels is correct in being concerned about the welfare and safety of students in her school (ISLLC Standard 3C). She is also correct in accepting Mr. Smith’s assertion that he had seen Lasiandra Davis take a brown paper bag into the girl’s restroom after lunch. Principal Daniels may be correct in her belief that Lasiandra Davis is at least one of the students bringing powdered aspirin to school. As principal she is empowered by a wide variety of state laws and school board policies to enforce reasonable rules designed to maintain a safe and substance-free environment. As principal, she also has a responsibility to treat students, teachers, and others fairly and in an ethical manner regardless of the circumstances (ISLLC Standard 5). ISLLC Standard 2A ISLLC Standard 3C ISLLC Standard 5 Lasiandra Davis also has certain rights and responsibilities. She has the responsibility to follow reasonable rules. She also has the right to be treated fairly. School leaders’ responsibility to promote good order and discipline must be balanced with student rights to be treated fairly and in an ethical manner. This balance, reflected in ISLLC Standards 3 and 5, is addressed in this chapter by considering the “justice as fairness” concepts of the American political philosopher John Rawls, and the legal concepts of due process, student discipline, and Title IX. ISLLC Standards 3 and 5 Student Rights and the Well-Ordered School John Rawls’s concept of justice as fairness (2001) provides guidance when considering the balance of the sometimes conflicting principles of maintaining a reasonably orderly school that promotes learning, safety and a substance-free environment with the equally compelling requirement that all students be treated fairly. Rawls’s theory of justice as fairness is a political theory, but it is applicable to schools as a concept of local justice. Rawls presents his concept in two principles of justice. The first, presented here, is particularly germane to a discussion of the relationship between student rights and the obligation to maintain order in a positive school culture. Principle One: Each person has the same indefeasible claim to a fully adequate scheme of equal basic liberties, which scheme is compatible with the same scheme of liberties for all. (p. 42) Principle One assumes that all students, regardless of socioeconomic status, ethnicity, or disciplinary history, are deserving of the same liberties. The fundamental idea is the development of a school culture that exists simultaneously as a fair system of social cooperation that is established by public justification. Social cooperation requires that reasonable persons understand and honor certain basic principles, even at the expense of their own interests, provided that others are also expected to honor these principles. In other words, students can be expected to understand and honor reasonable restrictions on their freedoms. School officials can be expected to reciprocate by promoting fairness and honoring appropriate student rights. In Rawls’s view, it is unreasonable not to honor fair terms of cooperation that others are expected to accept. It is worse than unreasonable to pretend to honor basic principles of social cooperation and then readily violate these principles simply because one has the power to do so. In other words, Rawls views it as unreasonable for school leaders to “talk the fairness talk” but not “walk the walk.” As pointed out in Chapter 1, fairness is a difficult concept. Fairness, like beauty, is in the eye of the beholder. There is no question that walking the walk can be fraught with difficulty. But, as Rawls points out, although it may seem rational at times to violate the principle of fairness and ignore student rights, it is never reasonable. A school culture based on social cooperation must be publicly justified and acceptable, not only to those who make the rules, but also to others (students, parents, teachers, etc.) who are affected by the school culture. To be effective, public justification should proceed to some form of consensus that assumes that all parties have fundamental rights and responsibilities. Rawls acknowledges that it is unlikely that all members of a diverse school with conflicting needs, values, and priorities will come to the same conclusions and the same definition of a well-ordered school. However, it is important that a reasonable consensus result from the process to serve as a basis for the justification of the need for certain rules and policies to promote order and efficiency. The Idea of a Well-Ordered School A school that exists as a fair system of cooperation under a public conception of justice meets ISLLC Standards 2A, 3A, 3C, 4B, 4C, 4D, 5B, 5C, 5D, and 5E. A school existing in this manner—a well-ordered school—has three defining characteristics: ISLLC Standards 2A, 3A, 3C, 4B, 4C, 4D, 5B, 5C, 5D, and 5E Everyone in the school accepts, and knows that everyone else accepts, the same concepts of justice. Moreover, this knowledge is mutually recognized as though these principles were a matter of public record. In other words, school leaders, teachers, and students acknowledge and accept that certain basic principles will be honored by everyone. All personal interactions, policies, and applications of policy are designed to facilitate a system of cooperation. Students, teachers, and school leaders have a rational sense of justice that allows them to understand and for the most part act accordingly as their positions in the school dictate. These three concepts provide a mutually recognizable point of view for the development of a school culture that promotes order, safety, and security. A mutual understanding of the roles and responsibilities of administrators, teachers, and students is important. The concept of a well-ordered school characterized by a fair system of social cooperation established by public justification may seem overly theoretical. However, it is embedded in a real problem—the development of a safe, secure, and substance-free school environment that promotes student learning. For example, in a national study of crime and violence in middle schools, Cantor et al. (2001) found that in low-disorder schools, a shared sense of responsibility is present among teachers and administrators. In these schools, principals and teachers for the most part support one another and function well as a team. In contrast, this sense of shared responsibility among teachers and administrators was weak in high-disorder schools. Teachers tended to point fingers at one another, at administrators, and at school security officers for the lack of good order in the school. A school culture based on a public conception of justice provides the framework for a shared sense of responsibility by all concerned in promoting good order and discipline. Well-ordered schools characterized by a fair system of social cooperation established by public justification are most likely to have a school environment that promotes collaboration, trust, and learning (ISLLC Standard 2A); the welfare and safety of students and staff (ISLLC Standard 3C); and social justice and student achievement (ISLLC Standard 5E). ISLLC Standard 2A ISLLC Standard 3C ISLLC Standard 5E Linking to Practice Do: Develop a system of mutually acceptable and publicly justified policies designed to maintain order and promote safety. Involve a wide range of interested stakeholders in the formulation of school rules. Model and insist that teachers and other adults in the school honor basic fairness and student rights. Conversely, insist that parents and students honor basic teacher rights. Use the concept of a well-ordered school to reinforce feelings of emotional safety for students, teachers, and parents. Use data to publicly justify certain restrictions on student freedom. These data can be used to support school safety interventions or conversely demonstrate that certain interventions may not be needed at this point in time. Do Not: Overreact to an isolated incident or criticism and resort to more punitive policies. Defensible school discipline plans should be based on facts, not on opinions, isolated incidents, or whoever can complain the most about student disorder. Share identifiable student data in group settings or with individuals without a legitimate educational interest in the data. Sharing identifiable student data is a violation of FERPA and can destroy trust and erode feelings of emotional safety. Due Process and the Fifth and Fourteenth Amendments As Rawls points out, the concept of fairness is fundamental to a well-ordered school. The concept of justice as fairness is reflected in the legal principle of due process. Due process is a legal principle that considers the manner of fair and adequate procedures for making equitable and fair decisions integrated into ISLLC Standard 5. A constitutional right to fair procedures is established in the due process clause of both the Fifth and Fourteenth Amendments. Both amendments address the concept that persons shall not be deprived of “life, liberty, or property, without due process of law.” A property interest is established by the state when the right to an education is extended to all individuals in a particular class. Therefore, a property interest is affected anytime a student is denied access to a public school education. A liberty interest is defined as a person’s good name, integrity, or reputation. A liberty interest is created when an administrative action creates potential harm to future job or educational opportunities. There are two forms of due process: procedural and substantive. Procedural due process considers the minimum sequence of steps taken by a school official in reaching a decision, usually defined as notice and the right to a fair hearing. Substantive due process considers the fairness of a decision and involves such concepts as adequate notice, consistency of standards, how evidence was collected and applied to the decision, the rationality of the decision, and the nexus of the decision with a legitimate educational purpose. ISLLC Standard 5 Procedural Due Process and Out-of-School Suspension Suspension generally refers to removal from school for a relatively short period—usually 1 to 10 days. Expulsion is generally defined as suspension from school for more than 10 days (Stader, 2011). Decisions for suspensions of 10 days or less are usually made by campus administrators. The maximum length of time for which campus administrators can suspend a student varies by state. For example, Missouri state law allows campus administrators to suspend students for up to 10 days (RSMo 167.171.1). Texas state law restricts campus administrators to 3 days or less (Texas Education Code 37.009). Regardless of the differences in state law, the due process requirements for out-of-school suspensions of 10 days or less were established by the U.S. Supreme Court in Goss v. Lopez (1975). This case considered Ohio law empowering school principals to suspend students for up to 10 days. This law also empowered principals to expel students. Expelled students or their parents had the right to a hearing before the local board of education. However, students suspended for 10 days or less had no recourse. The Court held that students facing temporary suspension from school (defined as 10 days or less) have a property and liberty interest that qualifies them for due process protection. Based on the assumption that education is the most important function of state and local governments (Brown v. Board of Education, 1954), the Court reasoned that a 10-day suspension recorded on a transcript could seriously damage a student’s reputation and interfere with later educational and employment opportunities. Consequently, even the temporary denial of a student’s property interest in established educational benefits or potential harm to the student’s liberty interest may not be constitutionally imposed without adequate due process protection. The Court established the following procedural guidelines for student suspensions of 10 days or less: The student must be given oral or written notice of the charges. In other words, the student has the right to know what rule has been broken. If the student denies the charges, an explanation of the evidence the authorities have and an opportunity for the student to present his or her version of the events is required. These steps may be taken immediately following the misconduct or infraction that may result in suspension. Linking to Practice Do: Develop a system of mutually acceptable and publicly justified policies designed to maintain order and promote safety. Involve a wide range of interested stakeholders in the formulation of school rules. Model and insist that teachers and other adults in the school honor basic fairness and student rights. Conversely, insist that parents and students honor basic teacher rights. Use the concept of a well-ordered school to reinforce feelings of emotional safety for students, teachers, and parents. Use data to publicly justify certain restrictions on student freedom. These data can be used to support school safety interventions or conversely demonstrate that certain interventions may not be needed at this point in time. Do Not: Overreact to an isolated incident or criticism and resort to more punitive policies. Defensible school discipline plans should be based on facts, not on opinions, isolated incidents, or whoever can complain the most about student disorder. Share identifiable student data in group settings or with individuals without a legitimate educational interest in the data. Sharing identifiable student data is a violation of FERPA and can destroy trust and erode feelings of emotional safety. Due Process and the Fifth and Fourteenth Amendments As Rawls points out, the concept of fairness is fundamental to a well-ordered school. The concept of justice as fairness is reflected in the legal principle of due process. Due process is a legal principle that considers the manner of fair and adequate procedures for making equitable and fair decisions integrated into ISLLC Standard 5. A constitutional right to fair procedures is established in the due process clause of both the Fifth and Fourteenth Amendments. Both amendments address the concept that persons shall not be deprived of “life, liberty, or property, without due process of law.” A property interest is established by the state when the right to an education is extended to all individuals in a particular class. Therefore, a property interest is affected anytime a student is denied access to a public school education. A liberty interest is defined as a person’s good name, integrity, or reputation. A liberty interest is created when an administrative action creates potential harm to future job or educational opportunities. There are two forms of due process: procedural and substantive. Procedural due process considers the minimum sequence of steps taken by a school official in reaching a decision, usually defined as notice and the right to a fair hearing. Substantive due process considers the fairness of a decision and involves such concepts as adequate notice, consistency of standards, how evidence was collected and applied to the decision, the rationality of the decision, and the nexus of the decision with a legitimate educational purpose. ISLLC Standard 5 Procedural Due Process and Out-of-School Suspension Suspension generally refers to removal from school for a relatively short period—usually 1 to 10 days. Expulsion is generally defined as suspension from school for more than 10 days (Stader, 2011). Decisions for suspensions of 10 days or less are usually made by campus administrators. The maximum length of time for which campus administrators can suspend a student varies by state. For example, Missouri state law allows campus administrators to suspend students for up to 10 days (RSMo 167.171.1). Texas state law restricts campus administrators to 3 days or less (Texas Education Code 37.009). Regardless of the differences in state law, the due process requirements for out-of-school suspensions of 10 days or less were established by the U.S. Supreme Court in Goss v. Lopez (1975). This case considered Ohio law empowering school principals to suspend students for up to 10 days. This law also empowered principals to expel students. Expelled students or their parents had the right to a hearing before the local board of education. However, students suspended for 10 days or less had no recourse. The Court held that students facing temporary suspension from school (defined as 10 days or less) have a property and liberty interest that qualifies them for due process protection. Based on the assumption that education is the most important function of state and local governments (Brown v. Board of Education, 1954), the Court reasoned that a 10-day suspension recorded on a transcript could seriously damage a student’s reputation and interfere with later educational and employment opportunities. Consequently, even the temporary denial of a student’s property interest in established educational benefits or potential harm to the student’s liberty interest may not be constitutionally imposed without adequate due process protection. The Court established the following procedural guidelines for student suspensions of 10 days or less: The student must be given oral or written notice of the charges. In other words, the student has the right to know what rule has been broken. If the student denies the charges, an explanation of the evidence the authorities have and an opportunity for the student to present his or her version of the events is required. These steps may be taken immediately following the misconduct or infraction that may result in suspension. Due process procedures and practices are designed to pose a check on improperly denying a student the right to a public education. Review the opening case study, “The Case of the Powdered Aspirin.” Principal Daniels is “fairly convinced” that Lasiandra is guilty of bringing powdered aspirin to school in a brown bag and that she was in possession of the bag when she went into the restroom. Did Principal Daniels meet the requirements of Goss when she suspended Lasiandra? Lasiandra denied that she was in possession of the powdered aspirin. Mr. Smith was “pretty sure” Lasiandra had a brown paper bag in her possession as she entered the restroom. Lasiandra was the only person in the restroom when the female teacher followed her into the restroom. She apparently was not in possession of the bag when Mrs. Hale entered the restroom, because the bag was found in the trash can. Did Principal Daniels provide Lasiandra with the evidence she had? Why did Principal Daniels suspend Lasiandra for “disturbing instruction” rather than for possession of powdered aspirin with what one can assume the intent to “huff”? Principals (and school boards) may make decisions based on a preponderance of the evidence rather than the “beyond a reasonable doubt” requirement in criminal cases. Does a preponderance of the evidence support Principal Daniels’s decision to suspend Lasiandra? The procedural requirements established in Goss generally pose little problem for school administrators and should be completed before a decision is made to suspend the student. In cases where a student’s presence endangers persons or property or threatens disruption of the academic process, administrators are justified in the immediate removal of the student from school. A preliminary decision to suspend an unruly or dangerous student may be made as long as the decision maker holds a prompt procedural hearing with the understanding that the preliminary decision to suspend can be reversed (Stader, 2001). However, the necessary notice and hearing should follow as soon as practicable (see C.B. & T.P. v. Driscoll, 1996 as an example). Students are usually not considered to have the same due process rights for punishments such as after-school detention or an in-school suspension (Tristan Kipp v. Lorain Board of Education, 2000). Traditionally, suspended students are not allowed to make up schoolwork that is missed because of the suspension. This practice has been supported by the courts (South Gibson School Board v. Sellman, 2002). The Fifth Circuit has recently held that a “student’s transfer to an alternative educational program does not deny access to public education and therefore does not violate a Fourteenth Amendment interest (i.e. require due process)” (Harris v. Pontotoc County School District, 2011). In addition, courts have been consistent in finding that Miranda warnings are not required when a student is questioned by school authorities regarding possible rule violations in school (Taylor, 2002). Substantive Due Process Substantive due process may be defined as follows: “The doctrine that the Due Process Clauses of the 5th and 14th Amendments require legislation to be fair and reasonable in content and to further a legitimate governmental objective” (Garner, 2006, p. 228). Substantive due process usually involves four questions: (a) Does the rule or policy provide adequate notice of what conduct is prohibited? (b) Does the rule or policy serve a legitimate educational purpose? (c) Is the consequence reasonably (or rationally) connected to the offense? (d) Is the rule or policy applied equitably? Question 1: Does the rule or policy provide adequate notice of what conduct is prohibited? This question concerns how accurately the policy or rule articulates or describes actions that would violate the rule or policy. School rules are not required to be as detailed as criminal codes. However, school rules must be written in an age-appropriate format that most reasonable students can understand. Sometimes this is difficult to accomplish. Vague or overbroad rules or policies violate substantive due process because these policies fail to provide adequate notice regarding unacceptable conduct, and they offer no clear guidance for school officials to apply the policy. In other words, school officials have wide latitude to interpret the policy at will or to do more than is necessary to achieve the desired ends. Some examples of vague or overbroad rules may include “anything that brings discredit to the school,” “gang-related activities on school grounds,” “misconduct,” “unacceptable behavior,” or behavior that “creates ill will.” Refer back to the case study “The Case of the Powdered Aspirin.” Although school codes need only be reasonable, is suspension for “interrupting instruction” vague or overbroad? What does “interrupting instruction” mean? However, even in incidents where some ambiguity is present, the U.S. Supreme Court has stated that federal courts should not substitute their own notions for a school board’s definition of its rules (Wood v. Strickland, 1975, and Board of Education of Rogers, Arkansas v. McCluskey, 1982). These cases clarify that as long as a school board’s interpretation and enforcement of rules is reasonable, courts should not interfere. Question 2: Does the rule or policy serve a legitimate educational purpose? This question considers the balance between individual rights (freedom) of students and the need for good order, safety, and efficiency. For student rights to be restricted, the restriction must serve some legitimate educational function. As long as the rule or policy can be linked to good order, safety, or efficiency, the policy will usually pass muster. For example, the drug testing of students and policies prohibiting weapons are clearly linked to school safety. However, arbitrary or capricious actions that are unrelated to maintaining good order and discipline may violate substantive due process (Woodard v. Los Fresnos, 1984). Question 3: Is the consequence reasonably (or rationally) connected to the offense? This question considers whether the consequence seems rational in light of the offense, or whether it is arbitrary or capricious. For example, referring an honor student with no disciplinary history for expulsion for being late to school would not appear rational. Think about Lasiandra Davis in the opening case study, “The Case of the Powdered Aspirin.” Lasiandra may or may not be an honor student, and it is possible that she is a royal pain. However, should she be suspended for “interrupting instruction”? Is it not part of a school principal’s job description to investigate potential rule violations, especially one as serious as “huffing” powdered aspirin? She was not suspended for possession of powdered aspirin, but for interrupting instruction. Was the suspension reasonably related to the offense? Courts sometimes comment about the wisdom of a rule or policy and the punishment used to enforce the rule (see, for example, Anderson v. Milbank, 2000). But federal courts are reluctant to substitute their judgment for school board interpretation of rules (Wood v. Strickland, 1975). Question 4: Is the rule or policy applied equitably? This question can be divided into two concepts: (1) Is everyone similarly situated treated in a similar manner? (2) Does the policy have a disproportional impact on a particular identifiable group of students? The first concept considers whether or not a policy is applied equally. A recent case involving sexual minority students may illustrate this (C. N. v. Wolf, 2006). Two female California high school students were disciplined for expressing affection toward each other. Heterosexual couples were not disciplined for the same behavior. In other words, policies that are applied to one group of students but not to another may violate the substantive due process rights of students. The second concept considers the intentional or unintentional impact of the policy or rule on a particular identifiable group of students. The decision by the Decatur, Illinois, school district to expel several African American students involved in a fight at a football game illustrates this (Fuller v. Decatur, 2000). African American students composed approximately 46 to 48% of the student body, yet 82% of the students expelled during a 2-year period were African American. However, the court found that similarly situated White students had also been expelled. In other words, the students had to demonstrate both inequitable treatment and disproportional impact. This is a very high standard to meet, especially when school safety is involved. Long-Term Suspension and Expulsion In most states, the authority to expel students is reserved for superintendents, school boards, or district hearing officers. In some states, such as Missouri, the school district superintendent (or a designee, in large districts) may suspend a student for up to 180 days (RsMo 167.171). This process is generally referred to as long-term suspension. In other states, only the board of education can suspend a student for more than 10 days. Regardless of how expulsion is defined, due process requirements are proportional to the potential punishment. In short, the greater the potential loss of a student’s property interest in attending school and the greater the threat to the student’s liberty interest in not having his or her record tainted by school officials, the greater the due process requirements. Therefore, suspensions or expulsions from school longer than 10 days require more elaborate due process requirements than the rudimentary requirements established in Goss v. Lopez (1975). Unfortunately, the U.S. Supreme Court has not established these requirements, and student rights in long-term suspension or expulsion hearings are a conglomeration of various federal and state court rulings, state statutes, and school board policies. These patchwork requirements vary from state to state and circuit court to circuit court. At the heart of the matter, due process requires only that a student facing expulsion receive notice of the charges; notice of the date, place and time of the hearing; and a full opportunity to be heard. Some circuit courts have added further due process requirements in expulsion cases. Therefore, it is important to consult state laws and school board policy before instigating long-term suspension or expulsion. The following general guidelines—in addition to notice of charges, time of the hearing, and an opportunity to present evidence refuting the allegations—likely apply in most states to students facing expulsion from public schools: Students have the right to a prompt written explanation of the facts leading to the expulsion. Expulsion cases can be challenged when a policy is “vague or overbroad.” For example, “gang-related” has been found to be void for vagueness (Stephenson v. Davenport Community School District, 1997), as has “possession of look-alike” drugs (Board of Education of Central Community v. Scionti, 2000). During the appeal process, students generally have the right to an evidentiary hearing, including having an attorney present. For example, a North Carolina appeals court overturned an expulsion decision because the student in question was denied the right to counsel during his appeal to the board (In re Roberts, 2002). Students generally have the right to present and refute evidence and to cross-examine and face witnesses (Fuller v. Decatur Public Schools, 2000). The right to cross-examine and face witnesses, especially when the witnesses are fellow students, is particularly controversial. However, courts have overturned the expulsion of a student because none of the student or teacher witnesses testified at the hearing (Board of Education of Central Community v. Scionti, 2000; Colquitt v. Rich Township High School District, 1998; Nichols v. DeStefano, 2002). The right to refute evidence is fundamental to the due process standard. The right to cross-examine witnesses varies from state to state. Boards may make decisions based on a preponderance of the evidence rather than the “beyond a reasonable doubt” requirement of criminal trials. The district should be prepared to present data demonstrating that expulsion decisions are not based on racial criteria. For example, in Fuller v. Decatur (2000), significantly more African American students than White students faced suspension and expulsion. However, the district was able to demonstrate that African American and White students who were similarly situated received similar punishments. FIGURE 5-1 Procedural due process illustrated. Corporal Punishment and Excessive Force Corporal punishment can be defined as “the use of physical force, including hitting, slapping, spanking, paddling or the use of physical restraint or positioning which is designed to cause pain, as a disciplinary measure” (Education Commission of the States, 1998). As of 2008, 21 states (mostly in the South and Southwest) permitted the use of corporal punishment in schools (Human Rights Watch, 2008). Twenty-nine states and Washington, DC, have banned the practice. In states where the decision to use corporal punishment is delegated to the local school board, many state school board associations recommend finding alternative means of discipline. Many school districts have taken such action. In fact, 95 of the largest school districts in the country have banned corporal punishment, including Houston, Dallas, and Memphis (Human Rights Watch, 2008). In addition, states that allow corporal punishment either establish guidelines or require local boards to establish guidelines for administering physical punishment. The legality of corporal punishment was considered by the U.S. Supreme Court in Ingraham v. Wright (1977). The parents of two students in Dade County, Florida, brought suit under USC 42 Section 1982 alleging a violation of their Eighth Amendment protection against cruel and unusual punishment and of their Fourteenth Amendment rights to a hearing before being deprived of property and liberty interest. The Court ruled that the Eighth Amendment protection applied only to those individuals convicted of a crime and not to public school children. Thus, juveniles in a detention center may bring suit for physical battery, but public school children may not (Roy, 2001, citing Nelson v. Heyne, 1974). In considering the Fourteenth Amendment claims, the Court recognized a liberty interest, but the due process clause did not require prior notice and a hearing before disciplinary paddling of a student could take place. Most states that allow corporal punishment provide statutory immunity for administrators and teachers who paddle students in their schools. In Mississippi, the only way to prevail in a lawsuit against an educator is if the educator’s conduct constitutes a criminal offense, or if he or she acted with a “malicious purpose” (Human Rights Watch, 2008). Texas statutes provide immunity for persons who administer corporal punishment under both criminal and civil law (Texas Education Code 22.051a). These immunity laws make it very difficult for parents to pursue legal action when their children are injured or subjected to corporal punishment against parental wishes (Human Rights Watch, 2008). In states where corporal punishment is legal, most federal circuits utilize a “shocks the conscience” standard when considering cases that involve outrageous conduct or physical contact between school personnel and students. The “shocks the conscience” standard is also typically applied in a variety of cases where students are injured by the actions of school officials (see Golden v. Anders, 2003, and Harris v. Robinson, 2001, as examples). Most courts set the “shocks the conscience” standard quite high by considering primarily the intent or lack of intent on the part of school personnel to cause harm. For example, the Third Circuit Court crafted four elements to consider when applying the “shocks the conscience” test: (1) Was there a pedagogical justification for the use of force? (2) Was the force utilized excessive to meet the legitimate objective in the situation? (3) Was the force applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically for the very purpose of causing harm? (4) Was there a serious injury? (Gottlieb v. Laurel Highlands School District, 2001). In school discipline cases, the Tenth Circuit Court defines “shocks the conscience” as whether the force applied caused injury so severe, was so disproportional to the need presented, and was so inspired by malice or sadism rather than a merely careless or unwise excess of zeal that it amounted to a brutal and inhumane abuse of official power literally shocking to the conscience. (Garcia v. Miera, 1987) The Eighth Circuit Court has established the following guidelines in considering whether or not the administering of corporal punishment shocks the consciences: (1) the need for the use of corporal punishment, (2) the relationship between the need for the punishment and the amount or severity of the punishment, (3) the extent of the injury inflicted, and (4) whether the punishment was administered in good-faith effort or done in a malicious and sadistic manner for the purpose of causing harm (Wise v. Pea Ridge, 1988). Based on these definitions, it may be difficult for school personnel to shock the conscience of many federal courts, but not all behaviors are protected. For example, the Eleventh Circuit Court held that the actions of a Green County, Alabama, principal who struck a 13-year-old boy with a metal cane in the head, ribs, and back with enough force to cause a large knot on his head and migraine headaches “obviously” rise to a level that shocks the conscience (Kirkland v. Greene, 2003). A female high school student became quite unruly, profane, and refused to leave a classroom area (Nicol v. Auburn-Washburn School District, 2002). When a school security guard was summoned, he allegedly pushed the girl into a file cabinet, shoved her into another student, grabbed her in a head lock, and “pinned” her “up against [a] wall.” Using the standards established in Harris v. Robinson (2001), the Tenth Circuit Court found that a reasonable jury could find that the actions of the security guard shock the conscience, thus violating the student’s substantive due process rights. Reaching a similar conclusion, the Second Circuit Court found the actions of a physical education teacher who grabbed a junior high school student by the throat, lifted him off the ground by his neck, dragged him across the gym floor, slammed the back of the student’s head against the bleachers four times, and rammed the student’s forehead into a metal fuse box to be “conscience-shocking” (Johnson v. Newburgh School District, 2001). The court used the following criteria to determine conscience-shocking actions: (1) Is the conduct maliciously and sadistically employed in the absence of a discernible government interest? (2) Is the conduct of a kind likely to produce substantial injury? In this particular case, the court had little difficulty answering yes to both of these criteria. Linking to Practice Do: Follow school district policy and state law regarding the use—or non-use—of corporal punishment. Search for alternatives in states (and districts) that allow corporal punishment. Sanctioning physical force and the intentional infliction of pain on students may create conditions that could easily escalate to “conscience-shocking” behavior. Investigate any incidents of physical force by faculty. For example, the physical education teacher in Johnson v. Newburgh (2001) had previously assaulted four other students (mostly African American). Letting this type of teacher-as-bully behavior continue unchallenged is inexcusable. Develop memoranda of understanding between the district and law enforcement regarding the role of school resource officers and the standards for review of behaviors that may not be appropriate in district schools. Student Suspension or Expulsion for Off-Campus Behavior Several states have passed laws allowing school districts to suspend or deny admission to students charged or convicted of serious crimes committed anywhere. For example, Missouri state law provides that no pupil shall be readmitted or enrolled to a regular program of instruction if the student has been convicted, charged with, or adjudicated to have committed a felony (RSM0 167.171.3). Many other states have similar laws that allow school districts to expel or refuse to admit students charged or convicted of serious crimes anywhere. Courts are generally supportive of school officials’ authority to develop and enforce reasonable rules for student conduct on school grounds and at school-sponsored activities, field trips, and events. However, school authority becomes more tenuous when students break school rules off school grounds. Consequently, most courts require a link between the off-campus behavior and disruption to the school environment (see Kyle P. Parker et al. v. Board of Education of the Town of Thomaston, 1998; Student Alpha ID Number Guiza v. The School Board of Volusia County, Florida, 1993). Zirkel (2003a) and the National School Boards Association’s Council of School Attorneys (2003) provide the following guidelines pertaining to the discipline of students for off-campus behavior: Follow all state laws regarding the suspension or expulsion of students charged or convicted of crimes off-campus. These laws do not require a link to on-campus disruption. Make clear to students and parents that accountability for proper behavior may extend beyond the schoolhouse gate when misbehavior occurs on school buses or at school-sponsored off-campus activities. Students and parents should be aware that students may be disciplined for conduct that starts at school and then extends off-campus. This is especially true when the behavior involves violence, gang activities, or drug sales (Zirkel, 2003a). Discipline for off-campus behavior should be supported by a link between the behavior and disruption at school. In other words, regardless of how reprehensible the behavior may be, a relationship to the behavior and disruption in the school should be established before taking disciplinary action (National School Boards Association’s Council of School Attorneys, 2003). Be sure that there is sufficient evidence to support disciplinary decisions. Avoid overreacting when considering student misconduct off-campus. Be sure to follow state and school district procedural due process requirements when suspensions or expulsions are considered for off-campus conduct (Zirkel, 2003a). Follow all state laws that prohibit the enrollment or readmittance of students convicted or charged of certain crimes regardless of location. If the student in question is classified as disabled under IDEA and/or Section, all procedural safeguards and requirements under these statutes are in force (Zirkel, 2003a). Follow all state law reporting requirements to law enforcement when suspending or expelling students for offenses that are classified as felonies under state law. Extracurricular Activities and Title IX Title IX is part of the Education Amendments of 1972. It is designed to protect students from being denied the benefits of any educational program or activity because of sex. Title IX applies to admissions, recruiting, course offerings, harassment based on sex, physical education, educational programs and activities, and employment. The Office for Civil Rights (OCR) is responsible for the enforcement of Title IX. OCR prefers that claims be settled in a peaceful manner without referring issues to the Department of Justice (“Secretary’s Commission,” 2002). The Title IX regulations issued by the U.S. Department of Education in 1975 require equal athletic opportunities for males and females. Title IX is designed to protect all students. However, because females have been historically underrepresented in secondary school cocurricular activities, the primary focus, and thus one of the more visible impacts, of Title IX athletic enforcement has been improving opportunities for female participation in school-sponsored cocurricular activities at the P–12 level. Although primarily designed for intercollegiate athletics, the regulations apply equally to secondary schools that accept federal money. In 1979, the U.S. Department of Education developed the following three-pronged test that provides guidance on the application of Title IX to athletics. A school may demonstrate compliance by meeting any one of the three parts: The school provides opportunities for males and females in numbers that are substantially proportionate to respective enrollments; or The school can demonstrate a history and continuing practice of program expansion that is responsive to the developing interest and abilities of the members of the sex that is underrepresented among athletes; or The school can show that the interest and abilities of the members of that sex have been fully and effectively accommodated by the present program (“Secretary’s Commission,” 2002). Currently this test applies only to colleges and universities. However, a federal district court in California held that a school district violated this test. First, the court concluded that the district did not provide girls with athletic opportunities substantially proportionate to their enrollment in the school. Second, the court found that the district failed to show a history and continuing practice of program expansion proportionate with the interest and abilities of female students, and the district had failed to fully and effectively accommodate female athletes’ interest (Ollier v. Sweetwater High School District, 2009). At least two courts have considered the question of whether or not Title IX applies when girls’ secondary school sports such as basketball, volleyball, and softball are played during a “non-traditional” season. For example, boys’ and girls’ basketball are a traditional winter sport and girls’ volleyball is a traditional fall sport. The federal district court in Michigan considered this question when the Michigan High School Athletic Association (MHSAA) scheduled several girls’ sports in non-traditional seasons (Communities for Equity v. Michigan High School Athletic Association, 2001). The court held that this type of scheduling of girls’ sports violated the Equal Protection Clause, Title IX, and Michigan state law. Particularly telling in this case was a finding by the court that girls’ basketball was originally scheduled in a non-traditional season to “avoid inconveniencing the boys’ basketball team.” A similar case in New York considered decisions by school districts in a region of the state to schedule certain girls’ sports during non-traditional seasons (McCormick v. the School District of Mamaroneck and the School District of Pelham, 2004). The Second Circuit Court had little problem affirming a trial court ruling that this practice by local school districts is in violation of Title IX. Title IX prohibits retaliation for reporting potential violations. This protection now extends to coaches and other adults who work with PK–12 public school athletic programs. The U.S. Supreme Court recently held that Title IX’s private right of action encompasses claims of retaliation against an individual (in this case a girls’ basketball coach) after he complained about sex discrimination in the school’s athletic program (Roderick Jackson v. Birmingham Board of Education, 2005). Roderick Jackson, the girls’ basketball coach, complained unsuccessfully to his supervisors about discrepancies in equipment and facilities. He then received negative work evaluations and was ultimately removed as the girls’ coach. It is important to note that the Court did not hold that Coach Jackson was dismissed from his coaching position in retaliation for his complaints, only that he is entitled to offer evidence to support his claim of retaliation. Interscholastic athletics are not generally governed by state or federal statute, but rather by a state activity association. The Tennessee Secondary School Athletic Association (TSSAA) serves as a typical illustration. Founded in 1925, TSSAA is a voluntary association composed of member secondary schools in Tennessee. A Board of Control consisting of nine board members elected by the member schools governs the Association. Changes to the TSSAA constitution and bylaws are possible only by a majority vote of member schools. Funding for the association is derived primarily from state tournament revenues and member fees. Activity associations have not traditionally received state funding and have not been considered state actors by the courts. This is an important point. As a state actor, associations would be subject to the U.S. Constitution, and association bylaws would be open to judicial review. In Brentwood Academy v. TSSAA (2001), the U.S. Supreme Court considered just such a question. The Brentwood case involved the First Amendment rights of private-school (Brentwood Academy) coaches to communicate with and recruit student athletes to their school. The U.S. Supreme Court held that the association is a state actor because of the pervasive entwinement of state school officials in the structure of the association (Brentwood v. TSSAA, 2001). Participation in interscholastic activities has traditionally been considered a privilege, and students have not had the same property and liberty interest in athletics or other extracurricular activities as they do in access to the general curriculum. However, some due process rights could conceivably be afforded to student athletes in light of the Brentwood decision. The Eighth Circuit Court implicitly acknowledged a senior softball player’s right to due process before being dismissed from the team for missing a game. The coach announced to the team that the offending player was expelled from the team before ascertaining the player’s side of the story. However, the court found that because the superintendent, principal, and coach met soon afterward with the player and her parents, the due process requirement of a hearing had been met by the district (Wooten v. Pleasant Hope R-VI School District, 2001). At least some school-district attorneys advise against establishing the practice of providing some due process rights before dismissing students from extracurricular activities. However, the rudimentary due process rights outlined in Goss do not seem burdensome when applied to extracurricular participation. Another area of potential litigation includes student athlete eligibility for college sports. In order to be awarded athletic scholarships and compete at the intercollegiate level, student athletes must meet certain guidelines established by the National Collegiate Athletic Association (NCAA). Included in these guidelines are “core curricular” course requirements that students must complete in order to be eligible for scholarships and participation. All high schools are required to submit to the NCAA Clearinghouse a list of courses for approval. The Clearinghouse checks transcripts of potential college athletes to certify eligibility. Several incidents of high school counselors or principals failing to provide accurate lists to the Clearinghouse have resulted in student athletes being declared ineligible. These incidents have naturally resulted in several lawsuits against high school principals or counselors. In general, courts have granted summary judgment for the school district and have not held individual school employees accountable for these oversights (Abbott, 2002). Linking to Practice Do: Annually evaluate the opportunities for and treatment of boys’ and girls’ extracurricular activities. For example, examine budgets, travel allotments, schedules, funding for uniforms and equipment, and equity of facility use. Both Title IX and the ISLLC standards require an affirmative response to any inequalities. Reassignment of coaches should be made for reasons other than in retaliation for complaining about Title IX violations. Provide training for athletic directors, coaches, band and choir directors, and other sponsors regarding school extracurricular policy and applicable state association rules. If a student is facing dismissal from a state association–sponsored activity, afford reasonable opportunities for rudimentary procedural due process (the student is informed of the reasons, has a chance to tell his/her side of the story, and, if denying the allegation, is given an explanation of the evidence) before a final decision is made. This precaution appears not to be common practice. However, an ounce of prevention almost always makes decisions more defensible and should increase the chances of summary judgment should a legal challenge occur. This level of protection is not necessary in cases of reasonable punishments such as extra running, benching, or apologies to the team. Encourage or require coaches and sponsors to meet with the parents of students involved in extracurricular activities. Rules for participation should be clearly outlined, should not be vague or overbroad, and should be related to the activity. Explain rules, expectations of participants, and reasons for possible dismissal from the activity. Encourage parents to contact coaches or sponsors if there is any question regarding rules, procedures, or punishments. Know the NCAA Clearinghouse rules. Clearly mark “approved” courses in student curriculum guides or other documents students and parents use to make curricular decisions. Invite parents to meetings with counselors, coaches, and band and choir directors to discuss the Clearinghouse rules and the courses approved by the campus or district. Title IX and Pregnancy Title IX prohibits discrimination based on a student’s actual or potential parental, family, or marital status that treats students differently on the basis of sex. Section of Title IX provides guidance on the treatment of pregnant students. The following guidelines apply to most public K–12 schools. Schools may not discriminate or exclude any student from an educational program or activity, including any class or extracurricular activity, on the basis of pregnancy, childbirth, false pregnancy, termination of pregnancy, or recovery, unless the student requests voluntarily to participate in separate programs. It is permissible (and possibly advisable) to require a student to obtain a certification from a physician that the student is physically and emotionally able to continue participation so long as such a certification is similarly required of all students for other physical or emotional conditions. Schools must treat pregnancy, childbirth, false pregnancy, termination of pregnancy, and recovery in the same manner and under the same policies as any other temporary disability. Schools shall treat these conditions as a justification for a leave of absence for so long a period as is deemed medically necessary by the student’s physician. After this time period the student shall be reinstated to the status which she held when the leave began. Summary Parents, students, community members, legislators, and educators do seem to agree on at least one thing: Safe and orderly schools are important. School leaders are empowered to achieve this safety and order by a wide variety of laws and policies at the national, state, and local levels. At the other end of the spectrum, students are required to relinquish many of the rights they have as citizens once they cross onto school grounds. In addition, students can be held accountable by school authorities for some acts outside the school that create disruption in the school. However, students do not check all of their rights at the schoolhouse gate. Interestingly, those individuals charged with protecting the limited rights of students are the very people who have the most authority to violate them. Effective school leaders understand the legal and ethical obligation to provide for a safe and orderly school, protect the rights of students, understand the need for a positive school culture based on social cooperation, and engage in honest interactions with students, parents, and others. Finding this balance may well be one of the biggest challenges future school leaders at all levels will face. Connecting Standards to Practice Bad Boys Riverboat High School Senior Kyle Lacy could be witty, smart, charming, and exasperating—usually all at the same time. In early October, high school principal Tara Hills suspended Kyle for 3 days for being disrespectful to his Senior English teacher, John Mills. While on suspension, a state trooper found 2 ounces of marijuana hidden in the trunk of Kyle’s car during a routine traffic stop. Kyle was charged with possession of marijuana and possession of drug paraphernalia. Riverboat High School students were notified at the beginning of school that they would be held accountable for out-of-school conduct that has “some impact on what happens in school.” Sharon Grey had in fact used this rule a few times when students were involved in some out-of-school conduct that created a problem at school. Current high school principal Tara Hills suspended Kyle for an additional 5 days for his drug possession arrest. Now, she was being pressured by several faculty members to make an example of Kyle and recommend that he be expelled for the remainder of the semester and banned from extracurricular activities for the remainder of the school year. Several teachers had approached Tara expressing their concern that failure to expel Kyle would make a sham of school rules. They also cited disruption of the educational process by noting that Kyle’s younger brother, a Riverboat sophomore, was in the car at the time of the stop. Tara had overheard several students talking about Kyle’s arrest, and the subject had apparently come up in some classes. She had stopped to listen during her scheduled classroom visits, and some of the discussion about the wisdom of legalizing marijuana had become spirited. But she had not noticed a groundswell of support for Kyle or any more classroom banter regarding recent events than usual. Question Argue for or against the expulsion of Kyle Lacy for the remainder of the semester. Clarify the legal question. Cite ISLLC standards, legal guidelines (i.e., procedural and substantive due process, off-campus behavior, and school discipline), and the idea of a well-ordered school to justify your answer. Write a letter or memorandum to the superintendent or school board president outlining your response to the problem of Kyle Lacy.


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